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TOPIC 1 SCM AND PURCHASING FUNCTION

TOPIC 1

SCM AND PURCHASING FUNCTION

Introduction:

Definitions:

  • Procurement: The term procurement is defined as the acquisition of merchandise or services at the optimum possible total cost in the correct amount and quality. These goods and services are also purchased at the correct time and location for the express gain or use of government, company, business or individuals by signing a contract. Procurement function commonly encompass: purchase planning, standards determination, specifications development, supplier research and selection, value analysis, financing, price negotiation, making the purchase, supply contract administration, inventory control and stores/disposals and other related functions.

 

  • Supply chain management: Is a set of synchronized decisions and activities utilized to efficiently integrate suppliers, manufacturers, warehouses, transporters, retailers and customers so that the right product or service is distributed at the right quantities, to the right locations and at the right time in order to minimize system-wide costs while satisfying customer service level requirements. The objective of supply chain management (SCM) is to achieve sustainable competitive advantage.

 

ELEMENTS OF SCM : The key supply chain processes stated by Lambert (2004) encompass:

  • Customer relationship management
  • Customer service management
  • Demand management
  • Order fulfillment
  • Manufacturing flow management
  • Supplier relationship management
  • Product development and commercialization
  • Returns management

 

  • Purchasing: Purchasing can be defined as a process of acquiring goods, services, or works in return for a price. The major type of activities under purchasing function entail: coordination with user departments to identify purchase needs, identification of potential suppliers, conduct of market studies for important materials, negotiation with potential suppliers, analysis of proposals, selection of suppliers, issuance of purchase orders, administration of contracts and resolution of related problems and lastly maintenance of a variety of purchasing records.

Purchasing activities involve buying decisions to ensure that: the right goods are in the right place, at the right time, at the right price, at the right quality and at the right quantity. These are sometimes referred to as the six R’s of purchasing.

  1. The right goods: In regard to this, the buyer specifies exactly what the organization requires (based on the needs) rather than simply buying from catalogue or what is on offer
  2. The right place: In making the buying decisions it is important to provide detailed instructions on how, when and where deliveries are to be made.
  3. The right time: This is an attribute of ensuring that the ordered item reaches the company at the stipulated time to facilitate efficient supply chain operations.
  4. The right price: Achieving the right price is an important task since this will affect the purchaser’s cost structure and ultimately the margin achieved (profitability).
  5. The right quality: The customer either specifies quality or expects the supplier to do so. The bottom line here is that the goods to be supplied should meet the user’s standards
  6. The right quantity: This entail fully supply of the ordered items. For instance if the buyer orders ten units then the supplier should exactly deliver the specified units that are ten.

 

Supply management: This is a process responsible for the development and management of a firm’s total internal and external supply system. The specific activities include:

  • Early purchase involvement (EPI) and early supplier involvement (ESI) in product design and subsequent specifications development for important items through the use of cross-functional teams
  • Conduct of all purchasing function and procurement process activities
  • Heavy use of cross-functional teams in supplier qualification and selection
  • Heavy use of purchasing partnering arrangement and strategic alliances with suppliers-to develop close and mutually beneficial linkages with key suppliers in the value chain and control quality and costs
  • Continuous identification of threats and opportunities in a firm’s supply environment
  • Development of strategic , long term acquisition plans for all major materials
  • The monitoring of continuous improvement in the supply chain
  • Active participation in the corporate strategic planning process

Its prudent to note that supply management concept represents the most advanced stage in the evolutionary development of purchasing/procurement.

Stores management: Entail planning, organizing and controlling the available stocks or supplies awaiting issue or transport to the customers. Stores operations compromise the following:

  • Receiving of goods from the suppliers or internal departments
  • Inspection to verify whether the goods supplied meet the specifications
  • Recording receipts and issue of supplies either manually or through computerized system
  • Provision of security to protect stocks against loss through theft, pilferage or misplacement
  • Maintenance: Protecting stocks against loss through deterioration from fire, water, bad weather etc.
  • Stock control: determining the range and quantities of stock or supplies to be held and their receipt and issue.
  • Stocktaking: checking of stocks and verification of stock records against actual physical quantities held in stock and also those at the work in progress stage and finished goods on hand.
  • Disposal of surplus: i.e. scrap, components or equipment identified as no longer in use or usable, by donating, reuse or sale.
  • Implementation of health and safety regulations relating to stores and stores staff.

 

Material management: Can be defined as the planning, organizing and control of all aspects of inventory embracing procurement, warehousing, work-in process and distribution. The goal of materials management is to consolidate and efficiently handle core services. The specific materials management activities include:

  • Purchasing and supply management
  • Inventory management
  • Stores and warehousing
  • In-plant materials handling
  • Production planning, scheduling and control
  • Traffic and transportation

 

Logistics management: This is the process of planning, implementing and controlling the efficient, effective flow and storage of goods, services and other related information from the point of origin to the point of consumption for the purpose of conforming to customers requirements. Logistics involves integration of information, transportation, inventory, warehousing, material handling and packaging. Logistical management includes the design and administration of systems to control the flow of materials, work in process and finished inventory to support business unit strategy. The overall goal of logistics is to achieve a targeted level of customer service at the lowest possible total cost. World class logistics firms create a competitive edge by providing customers with superior service / information systems to monitor logistics performance on real time basis, identifying potential operational breakdowns and taking corrective action prior to customer service failure.

Scope of logistics management:

  • Concept of supply chain management: The supply chain can be likened to a well- balanced relay team in which the entire team is coordinated to run the race. The supply chain emphasis the process approach concerned with how a product or service is delivered to the customer. Supply chains are likened to value chains in that each activity within a value chain provides inputs after processing each input provides added value to the output which the ultimate customer receives in form of a product/service. It is worthwhile to underscore the fact that the supply chain concept emphasis the use of cross-functional teams which perfect their areas of specialization in aid of accomplishing the company’s set goals.

Objectives of supply chain management:

  1. Enhancing Customer Service/satisfaction
  2. Expanding Sales Revenue
  3. Reducing Inventory Cost
  4. Improving On-Time Delivery
  5. Improving quality
  6. Reducing Lead Time
  7. Reducing Transportation Cost
  8. Reducing Warehouse Cost
  9. Reducing / Rationalize Supplier Base
  10. Expanding Width / Depth of Distribution

 

Decision Phases In a Supply Chain

Successful supply chain management requires many decisions relating to the flow of

information, product, and funds. These decisions fall into three categories or phases, depending on the frequency of each decision and the time frame over which a decision phase has an impact. The distinct phases in supply chain set up entail:

 

  1. Supply chain strategy or design: During this phase, a company decides how to structure

the supply chain over the next several years. It decides what the chain’s configuration

will be, how resources will be allocated, and what processes each stage will perform.

Strategic decisions made by companies include the location and capacities of production

and warehouse facilities, the products to be manufactured or stored at various locations,

the modes of transportation to be made available along different shipping legs, and the

type of information system to be utilized. A firm must ensure that the supply chain

configuration supports its strategic objectives during this phase.

 

  1. Supply chain planning: For decisions made during this phase, the time frame considered

is a quarter to a year. Therefore, the   supply chain’s configuration determined in the

strategic phase is fixed. The configuration establishes constraints within which planning

must be done. Companies start the planning phase with a forecast for the coming year (or

a comparable time frame) of demand in different markets. Planning includes decisions

regarding which markets will be supplied from which locations, the subcontracting of

manufacturing, the inventory policies to be followed, and the timing and size of

marketing promotions.

 

  1. Supply chain operation: The time horizon here is weekly or daily, and during this phase

companies make decisions regarding individual customer orders. At the operational

level, supply chain configuration is considered fixed and planning policies are already

defined. The goal of supply chain operations is to handle incoming customer orders in

the best possible manner. During this phase, firms allocate inventory or production to

individual orders, set a date that an order is to be filled, generate pick lists at a warehouse,

allocate an order to a particular shipping mode and shipment, set delivery schedules of

trucks, and place replenishment orders. Because operational decisions are being made in

the short term (minutes, hours, or days), there is less uncertainty about demand

information. Given the constraints established by the configuration and planning

policies, the goal during the operation phase is to exploit the reduction of uncertainty and

optimize performance.

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PURCHASING

Definition and scope of purchasing:

Purchasing is defined as a process of acquiring goods, services and works in return for a price. All organisations invariably need input of goods and services from external suppliers or providers and to this extent therefore, purchasing function plays an integral part in ensuring the goods/services are provided to the company. The role and contribution of purchasing has increased quite steadily over the second half of 20th century with interest in the activity taking place in the last few years. The reasons behind this paradigm shift based on importance and recognition of purchasing entail:

  1. New management concepts
  2. Advanced technology
  3. Government policies
  4. Fewer but larger suppliers
  5. Competition hence the need for quality

The scope of purchasing function is in line with the following activities:

  1. Coordination with user departments to identify purchase needs
  2. Identification of potential suppliers
  3. The conduct of market studies for important materials
  4. Negotiation with potential suppliers
  5. Analysis of proposals
  6. Selection of suppliers
  7. Issuance of purchase orders
  8. Administration of contracts and resolution of related problems
  9. Maintenance of a variety of purchasing records
  10. Payment follow up
  11. Inspection and acceptance

Objectives of purchasing:

Purchasing objectives can be seen from two sides:

  • General managerial level
  • Functional or operational level

The general objectives are the five rights:  that is acquiring materials of:

  • The right quality
  • From the right supplier
  • In the right quantity
  • At the right time
  • At the right place

The perfection of the above purchasing rights invariably creates a desired service level necessary for optimal supply of materials.

The functional or operational level objectives of purchasing:

  1. To support the company operations with uninterrupted flow of materials and services
  2. To buy competitively-keeping abreast of the forces of supply and demand
  3. To buy wisely-Continual search for better values of quality, service, price relative to the buyer’s needs
  4. To keep stock investment and losses at a practical minimum
  5. To develop effective and reliable sources of supply
  6. To develop good relationships with the supplier community and good continued relationship with active suppliers
  7. To achieve maximum integration with other departments of the firm
  8. To handle the purchasing function proactively in a professional and cost effective manner.

 

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Relationship between the purchasing and supply function with other departments:

Some issues on which interaction and cooperation may take place between purchasing and other company departments include the following:

  • Purchasing and finance/accounts department:
  • Finance/accounts department prepares budget allocation for goods/services to be purchased in a given time period
  • The purchase department establishes and forwards to finance/accounts department value analysis report for goods/services to be purchased
  • Finance/accounts department briefs the purchasing department on issues based on supplier payment
  • Purchasing department gives accounts department information based on damaged items and obsolete items
  • Purchasing department gives out information based on stock movement to the accounts department
  • Purchasing/supplies department works together with accounts department during stock taking exercise which is based on assessing the variance status of the company’s inventory.
  • Stores personnel who works under purchasing/supplies department works together with the accounts personnel when it comes to the issue of receiving goods from the supplier(s). The accounts personnel checks whether the amount indicated in the invoice correspond with the amount indicated in the local purchase order (LPO).

 

Purchasing and design department:

  • Preparation of specifications for purchase of materials and components
  • Quality assurance or defect prevention
  • Value engineering and value analysis
  • Information to departments regarding availability of materials, suppliers and costs
  • Agreement of alternatives when specified materials are not available
  • Creation of library of books, catalogues, journals and specifications for joint use by the design and purchasing departments

 

Purchasing and production (User department)

  • Preparation of material schedules to meet just in time requirements
  • Ensuring that delivery schedules are maintained
  • Control of inventory to meet production requirements
  • Disposal of scrap and obsolete items
  • Quality control or defect detection and correction
  • Approval of ‘first-off samples’
  • Make or buy decisions
  • General involvement in such techniques and systems as optimised production technology, computer integrated technology, materials requirement planning (MRP) and manufacturing resource planning (MRP 2)

 

Purchasing and human resource development:

  • Purchasing professionals gives out technical expertise when a prospective purchasing staff is being interviewed for a job.
  • Human resource personnel liaise with purchasing managers on checking the performance of purchasing employees through job appraisal analysis.
  • Human resource development relates with purchasing department when it comes to issues of arranging training and seminars for the purchasing staffs.
  • Human resource development work hand in hand with purchasing department through provision of motivational incentives for the purchasing staffs. This entail the acknowledgment of best employees through giving out Awards, presents and so on.
  • Purchasing department works also with human resource development on disciplinary matters of the employees.

 

Purchasing and marketing:

  • Provision of sales forecasts on which purchasing can base its forward planning of materials, components etc
  • Ensuring that through efficient buying, purchasing contributes to the maintenance of competitive prices
  • Obtaining materials on time to enable marketing and production to meet promised delivery dates to the end-customer
  • Exchange of information regarding customers and suppliers
  • Marketing implications on partnership sourcing

 

Purchasing and information technology department (IT):

Purchasing department and IT have an increasing number of interdependencies. In some cases IT function is outsourced by the purchasing function. To this extent therefore its performance is evaluated accordingly by the purchasing department. Also the manager of IT works closely with purchasing manager to develop automated procedures and reports in line with purchasing. To add on that IT department establishes computer devices to purchase and to this extent the IT manager prepares purchase order requisition (POR) for such items and forwards the same to purchasing department. On the other hand the purchasing department sources for such devices on behalf of the IT department.

 

Organisation and structures in supply organisation:

Organisational structure can be defined as the pattern of relationships among positions in the organisation and among members of the organisation. Organisation design and structure is concerned with such elements as:

  • The definition and allocation of specific tasks
  • The grouping of related tasks into manageable functions, divisions, departments, sections or other units
  • The allocation of responsibility within the organisation and to constituent functional units.

 

The supply function focus primarily on centralised and decentralized purchasing when building up the structures for the organisation. Centralized purchasing encompass grouping of purchasing tasks and specialist functions or services into one serving unit and under unified control. On the other hand decentralized purchasing entail division of purchasing function into sections whereby each section is mandated to control the functions within its scope. Here each department or branch is entirely responsible for its own buying.

 

  • Centralized purchasing: The advantages of concentrating purchasing in a strong central department with a responsibility of coordinating across functions include:

 

(1) Economies of scale: Centralized purchasing enables an organisation to use its purchasing power or leverage to the best effect, since:

  • Consolidation of quantities can take place resulting in quantity discounts
  • Suppliers dealing with a central purchasing department have an incentive to compete for the whole proportion of an undertaking’s requirements
  • Cheaper prices by enabling suppliers to spread overheads over longer production runs
  • Specialist staff can be employed for each of the major categories of purchase
  • Lower administration costs e.g. it is cheaper to place and process one order for one million shillings than ten each for one million.

 

(ii) Coordinating of activity: 

  • Uniform policies can be adopted e.g. single sourcing, partnership sourcing etc.
  • Uniform purchasing procedures can be followed
  • Competitive buying between departments within the organisation is eliminate
  • Standardization is facilitated by the use of company’s wide specification
  • The determination of order quantities and delivery dates is facilitated.
  • Staff training and development can be undertaken on a systematic basis.
  • Purchasing research into sources, quantities and supplier performance is facilitated
  • Suppliers find it more convenient to approach one central purchasing department.

       

  (iii)  Control of activity:

  •  The purchasing department may become either a separate cost centre i.e. a location within the organisation in relation to which costs may be ascertained or a profit centre.
  • Budgetary control may be applied both to the purchasing department and to the total expenditure on supplier.
  • Uniformity of purchase prices obtained by centralized purchasing assists standard costing.
  • Inventories can be controlled, reduced obsolescence and loss of interest on capital locked up in excessive stocks.
  • Approaches such as Just-in-time and MRP ii can be implemented
  • Purchasing department performance can be monitored by setting objectives and comparing actual results with pre-determined standards.

Disadvantages of centralized purchasing:

  • Centralized can result in many activities that involve expenditure and time without adding value.
  • Centralization can foster emphasis on functional objectives with a minimum concern for overall organisational goals.
  • User departments will resort to informal procedures if formal purchasing procedures are slow.
  • Training of managers with broad perspectives and wide understanding of business may be inhibited.
  • Employee identification with a specialist group or function can make it difficult to implement change. It is a more rigid structure.
  • Long chain of command.
  • Slow-decision making.
  • More bureaucratic.

 

(b)Decentralized Purchasing:

Advantages:

  • The local buyer will have better knowledge of the needs of his/her factory and local suppliers for improved service. It is more responsive to clients i.e. the user departments.
  • The buyer will be able to respond more quickly to emergency requirements.
  • Local purchase will be emphasized and this attribute will save on transport costs.
  • Local purchase will contribute to local prosperity of the local community etc.
  • Small and easy to manage.
  • Easy to install team spirit.
  • Fast in decision making

Disadvantages:

  • May lead to buying expensively for lack of economies of scale.
  • Duplication of purchases may result.
  • Standardization of materials and procedures may be difficult to implement.
  • Specialized staff training may not be possible
  • Rivals can emerge
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THE LAW OF PROPERTY NOTES

THE LAW OF PROPERTY

This is the law concerned with the bundle of rights a person may have on land. Such rights may be exclusive or otherwise. Property law defines the range of functions a person may exercise in a given situation at a given time. It confers proprietary rights and imposes obligations on owners/holders of land. Land includes physical strata, water all things growing on it, buildings or other things permanently annexed on the land.

Common law conception of land is based on the maxim cujus est solum which literally means that land encompasses more than just the soil. It includes all things found in the aerospace above and the geospace below. Land includes all the permanent fixtures. The common law conception of fixture is expressed by the maxim Quic Quid plantatur solo solo codit which literally means whatever is attached to land belongs to the land.

At common law, fixtures were deemed to be part of the land and could not be removed.

However, this principle was modified and certain categories of fixtures could be removed e.g.

  • Trade fixtures to enable a tenant carry out his trade
  • Ornamental and domestic features if they did not cause substantial damage to land
  • Agricultural fixtures could be removed from 1948

The common law principles of applies in Kenya’s property law, however it has been modified by statute law e.g. The Water Act,1 The Mining Act, The Way leaves Act2 and The Agriculture Act.

 

POSSESSION AND OWNERSHIP

Whereas ownership signifies title or a bundle of rights exercisable with respect to the subject matter, possession is the mere right to hold and may be actual or constructive. Ownership confers proprietary rights. However, in certain circumstances, possession may confer the right to use.

Ownership of land may take three forms:

  1. Sole ownership
  2. Joint ownership
  3. Common ownership

 

SOLE OWNERSHIP

The land in question is owned by one person who exercises all the rights in relation to it

JOINT OWNERSHIP

A situation where property is owned by two or more persons. It enjoys all the characteristics of a single owner. Proprietors have no individual shares in the property. Joint ownership is characterised by four unities namely:

  • Unity of title

All the persons derive title from the same title

  • Unity of possession

All the persons are entitled to each and every part of the land. They have the same rights to use any part of the land.

  • Unity of interest

All the owners own a similar interest in nature, extend and duration

  • Unity of time

The interest of the owners commences at the same time

COMMON OWNERSHIP

This is the ownership of separate but undivided shares in the land. It does not confer the right of survivorship and a common owner can transfer his share to others with consent of the other owners. Common ownership terminates when the land is sold or partitioned

INTEREST IN LAND

It may take any of the three forms:

  1. Estate
  2. Servitude
  3. Encumbrances

ESTATE IN LAND

An estate in land may be freehold or leasehold.

FREEHOLD ESTATE

Confers a bundle of rights exercisable for an indefinite duration. It may be acquired by inheritance or otherwise. The rights it confers can be transmitted to future generations.

Freehold estates include;

  • Free simple
  • Free tail
  • Absolute proprietorship
  1. FREE SIMPLE

This is the largest freehold estate a person can have on land at common law. It confers the largest quantum of rights. It confers unrestricted right to use, misuse and to dispose. In the event of death, the rights are transmitted to the person entitled to inherit the estate failing which it escheats to the state. No conditions are attached as to its inheritance. Holder can dispose it by deed or by will, wholly or in part, conditionally or unconditionally. The holder of a fee simple is entitled to commit waste on the land. Waste may be:

  • Ameliorating waste – Consists of acts which improve the value of land.
  • Permissive waste – Consists of acts not detrimental to land
  • Voluntary waste – Consists of acts detrimental to land
  • Equitable waste – This is wanton destruction of land.

Creation of Fee Simple

This estate may be created by:

  • Grant:- if it is transferred by one person to another
  • Inheritance: – if inherited from a deceased
  • Enfranchisement; – applies to agricultural leases where the government on expiration of the term of the lease, converts it to a freehold estate
  1. FEE TAIL

A freehold estate which confers a life interest on the holder. Descends only to specified persons.

Confers the right to determine the person or persons entitled to inherit. The estate is generally created by inheritance

  1. ABSOLUTE PROPRIETORSHIP

Created by Sections 27 & 28 of The Registered Land Act CAP 300. Section 27 provides inter alia upon registration, the owner acquires all the rights and privileges associated with such ownership. These rights include right to use, misuse or dispose. The rights of the registered holder cannot be defeated unless as provided for by the Act. The person to whom the land is registered becomes the absolute owner to the exclusion of all others. This estate is illustrated by the decision in Obiero V. Opiyo. The registration terminates all customary rights previously exercisable on the land.

Creation of Absolute Proprietorship

  1. Registration after Adjudication
  2. Conversion from other registers
  • Transfer
  1. Inheritance
  2. Consolidation

Examples of fee simple

  • Life Estate

An estate which lasts for the life of the grantee and is created by inheritance. Death of the grantee terminates his interest

  • Estate Pur Autre Vie

An estate in the life of another. It lasts for the life of that other person and lapses on his death. May be created by Express Grant or Assignment

It is a freehold estate but reverts to the grantor when the person dies. Person on whose life the state is measured is the Cesqui que.

LEASEHOLD ESTATE (Tenancy)

Lease refers to a transaction which creates the relationship of landlord and tenant between the grantor and grantee. The formal document by which this is done is a lease.

Leasehold is the quantum of rights which a lease grants to the lease. It is a secondary

Interest in land derived from a primary interest. Confers upon the leasee / tenant exclusive possession of another land

CHARACTERISTICS OF TENANCIES/ LEASES

  1. Exclusive possession

A tenancy confers upon the grantee/ tenant the right to hold the interest to the exclusion of all others. Means that no other person has an equal right to it. It was so held in Helcht V. Morgan.

  1. Defined premises

The premises to which the tenancy or lease refers must be defined or ascertained. It must be identifiable by reference to the agreement. It was held in Heptulla V. Thakore.

  1. Certain period

A lease must commence at and exist for a certain period or for a period capable of being ascertained. It was so held in Marshalls V. Berridge

  1. Scope of grant or Quantum of Rights

The bundle of rights conferred by a lease must be definite or capable of being defined. The leasee must know the rights exercisable under the lease.

TYPES OF TENANCIES OR LEASES

  • Fixed Tenancy

A tenancy created for a fixed duration. Its commencement and termination must be specified. Such a lease determines when the duration expires

  • Periodic tenancy

Tenancy / lease which continues indefinitely from a period to period e.g. 1 year. Such a lease may be express or implied. Its duration is not specified and it may arise if a fixed period tenant remains in possession and continues to pay rent.

  • Tenancy at will

Tenancy whereby the tenant occupies premises on the terms that either party may determine the relationship at any time. The tenancy terminates in the event of death of either party or committing an act inconsistent with the tenancy.

  • Tenancy at sufferance

Arises whenever a fixed period tenancy holds over or remains occupation without the landlord’s consent. This tenancy is created by operation of law. If landlord accepts rent, it becomes a periodic tenancy. However, the tenant may be ejected at any time without notice.

  • Service tenancy

Created to enable the tenant perform a particular service. The occupation is necessary for performance of the service; however the tenancy terminates on determination of employment.

OBLIGATIONS OF THE PARTIES

A tenancy/ lease impose upon the parties certain legally binding obligations.

 

DUTIES OF LANDLORD/LESSOR/GRANTOR:

  • Duty not to derogate from the grant: He must not do anything inconsistent with the tenancy or lease. These are acts likely to render the premises unfit for the purpose for which they were rented.
  • Duty to ensure quiet enjoyment: The landlord, his servants and agents must not interfere with the tenant’s enjoyment of the premises. Tenant is entitled to peaceful occupation without unlawful interference or interruption.
  • Duty to grant premises fit for purposes: Landlord must ensure that the premises let are fit for the particular purpose for which it is let.
  • Duty to suspend or adjust rent: If the premises or part thereof is destroyed/ damaged without the tenants negligence rendering it wholly or partially unfit for occupation or use, the lessor is bound to suspend or adjust rent depending on the nature of damage until the premises are rendered fit for use or occupation.
  • Duty to repair: As a general rule, it is the duty of the lessor to repair the roof, main walls, main drains, common passages and installations. This duty is statutory if only part of a building is let
  • Duty to put the tenant in possession: The lessor is bound to hand over to the lessee, the mains which enable him enter into occupation

 

DUTIES OF TENANT/LESSEE/GRANTEE:

  1. Duty to Pay the Rent Reserved

It is obligation of lessee to pay the rent as agreed. Such rent is payable irrespective of occupation.

  1. Duty to Pay Rates and Taxes

Lessee is bound to pay all rates and taxes except where the landlord is under statutory obligation to pay.

  1. Duty Not To Commit Waste

Lessee is duty bound not to commit waste i.e. he must not do anything which reduces the value of the premises. Fixed term tenants are liable for voluntary and permissive waste.

  1. Duty not to transfer, sublet or part with possession

As a general rule, the lessee must not transfer, sublease or charge the premises without the lessor’s written permission.

  1. Duty to Permit Landlord to View the Premises

It is the duty of the lessee to enable the landlord appreciate the condition of the leased premises. The obligation is generally implied where the lessor is bound to repair the premises.

  1. Duty to Make Reparation for Any Breach

The lessee is bound to repair and make good any defect or breach of agreement for which he is to blame. Reparation must be made within reasonable time as may be specified by a notice given by the lessor.

  1. Duty to Make Material Disclosure

The lessee is bound to inform the lessor of any external interference by third parties or of any action he is about to take which affects the value of the premises

  1. 8. Duty Not To Erect Fixtures

The lessee must not, without the lessor’s consent erect any permanent structures on the property. However, structures erected for agricultural purposes are permissible

  1. Duty to Put the Landlord in Possession

It is the lessee’s duty on expiration of the lease to put the lessor in possession of the leased premises. If a tenant is guilty of breach of terms of the lease e.g. non-payment of rent, landlord has an action in damages or may distress the tenant pursuant to the provisions of the Distress for Rent

Act3.

TERMINATION OF TENANCIES/LEASES

A tenancy agreement may terminate in the following ways:-

  • By Notice

Applicable where the tenancy is for a fixed duration or where either party desires to terminate the leases before the duration expires. The notice must sufficiently indicate the party’s intention to terminate the lease.

  • Lapse of Time/ Expiration of Time

A fixed period tenancy terminates on expiration of the duration

  • Forfeiture

This is the right of the lessor to re-enter the premises and there-by prematurely determine the lease in the event of certain breaches. The lessor may do so pursuant to forfeiture clause or in accordance with the provisions of the ITPA or Registered Land Act e.g. If the lessee is bankrupt or insolvent or upon the winding up of the company

  • Surrender

The giving up by the tenant, to the landlord, of the leased premises. Express surrender must be made in a prescribed form

  • Merger

Under the ITPA and Registered Land Act, a lease determines if the lessee or some other person becomes entitled to the property as of right. A merger must be express.

  • Enlargement or Conversion

A lease determines if it is converted into some other interest e.g. freehold in accordance with the law.

  • Frustration

As a general rule the doctrine of frustration does not apply lease agreements. However, a lease is terminable by frustration if the property or part therefore is rendered unusable.

  • Disclaimer

This is the right of the lessee/tenant to disclaim the lease. He can only do so if authorized by statute. On doing so the lease terminates.

A Lease differs from a Licence in that traditionally, licence is permission given by the occupier of land which without creating an interest in the land allows the licensee to do some act which would otherwise be a trespass.

A licence does not confer the right to exclusive possession of the land. It is a mere permission by a party to another to enter upon the licensor’s land. It does not require any writing or registration and is not transferrable

SERVITUDES

These are rights in alieno solo i.e. a right conferring a power on another’s land for the benefit of the right holder or his estate.

At common law, servitudes include:-

  1. Easements
  2. Profit apprendre
  • Restrictive covenants

EASEMENTS

A right attached to a parcel of land which allows the proprietor of the land either

  1. To use the land of another in a particular manner
  2. To restrict its use to a particular extent

An easement may be positive or negative. It is positive if it authorizes the use of another’s land in a particular way. It is negative if is restricts that other in the use of his land.

CHARACTERISTICS OF AN EASEMENT

  • There must be a dominant and a servient tenement: There can be easement properly so-called only if there be both a servient and a dominant tenement. An easement must be connected with the dominant tenement.
  • Dominant and servient tenement must be owned/ occupied by different persons: This is because an owner cannot have an easement over his land. It has been observed that in order to obtain an easement over land, you must not be the possessor of it for you cannot have the land itself and also an easement over it.
  • Easement must accommodate the dominant Tenement: What this requires is that the right accommodates and serves the dominant tenement and is reasonably necessary for the better enjoyment of that tenement.
  • Easement must be capable of forming the subject matter of the grant: This characteristic means that the easement must be capable of being granted by deed hence there must be:-
  • A capable grantor
  • Capable grantee
  • The right must be sufficiently definite
  • Right must be of a nature capable of being granted

An easement differs from a license in that it is a proprietory interest attached to the land. It differs from a lease in that it does not confer possessory rights over the land.

 

CREATION OF EASEMENTS       

An easement may be acquired in the following ways:

  • Express Grant: A situation where the grantor expressly confers the right to the grantee in prescribed form which must specify the nature of the interest, duration and other conditions or limitations.
  • Statute: An easement may be granted by an Act of Parliament to facilitate the discharge of a statutory obligation.
  • Prescription: Under the Limitation of Actions Act, 20 years of continuous use of another’s land grants an easement to the user. The use must have been uninterrupted.

TERMINATION OF EASEMENTS

  1. Lapse of Time

Under the Registered Land Act, an easement terminates on expiration of the prescribed duration.

  1. Occurrence of an Event

The Registrar of lands is empowered to cancel the registration of an easement on application by the party affected by any breach of its terms

  1. Unity of Seisin

Acquisition of full ownership of both the dominant and servient tenements by the grantee or some other person destroys the easement.

  1. Merger of Interest

Under the Registered Land Act, an easement terminates if the dominant and servient tenement are vested in the same person provided the tenements are combined under one title and registered as such.

  1. Release or Abandonment

A grantee may by executing a deed abandon the easement to the grantor thereby terminating the same.

  1. Judicial Discharge

Under Section 98 of the Registered Land Act, the court is empowered on application by an interested party to order termination of an easement if satisfied that there is reasonable cause to do so.

 

PROFIT APPRENDRE

The right to take something off another’s land It is the right to go on the land of another to take particular substance from that land, whether the soil or products of the soil. A profit enables the grantee to take something capable of ownership from grantor’s land.

If a profit is enjoyed by others, it is referred to as profit in common/common. If it is enjoyed to the exclusion of others it is a several profit. If a profit is attached to the land, it is said to be a profit apportionment.

A profit may be created or acquired by:

  1. Express grant
  2. Prescription by law

May be terminated by:

  1. Release/Abandonment
  2. Unity of Seisin

RESTRICTIVE COVENANT

An agreement by which a proprietor or land owner undertakes to restrict the use of his land in a particular manner for the benefit of some other land. Such an agreement may arise between two landlords or tenants owning or occupying adjoining properties. The covenants are created by agreements which are registerable under the law.

They are terminable by mutual consent.

ENCUMBERANCES

These are rights in alieno solo which constitute burdens on the property. They are generally of a temporal character. Encumbrances are either mortgages or charges.

MORTGAGES

In the words of Lindley J in Santley V. Wilde (1859) a mortgage is a conveyance of land or assignment of chattels as security for payment of a debt or the discharge of some other obligation for which it is given

CHARACTERISTICS OF A MORTGAGE

  • Conveyance of the title to the mortgage
  • A proviso for reconveyance on payment
  • The right of redemption

The law relating to mortgages and charges in Kenya is contained in the Indian Transfer of

Property Act, Registered Land Act and Equitable Mortgages Act

Under Registered Land act, A Charge is an interest in land as a security for the payment of money/ monies or the fulfillment of any condition.

TYPES OF MORTGAGES

The ITPA recognizes the following types of mortgages:

  1. Simple mortgage

A mortgage transaction whereby without delivering possession of the mortgaged property, the borrower binds himself to pay the mortgage and agrees that in the event of non repayment, the mortgagee shall have the rights to sell the property and the proceeds applied in the payment of the mortgaged money.

  1. Mortgage by conditional sale

A mortgage transaction whereby the borrower ostensibly sells mortgaged property to the mortgagee on condition that the event of default, the sale becomes absolute or in the event of payment the sale becomes void.

  1. Usufructuary mortgage

The lender (mortgagee) takes possession of the mortgaged property and uses the proceeds to repay himself

  1. English Mortgage

The borrower binds himself to repay the mortgaged money on a specific date and transfers the mortgaged property to the mortgagee subject to a re-transfer upon repayment of the mortgaged money.

  1. Anomalous Mortgage

Created by Section 98 of the ITPA. The rights of the parties and other terms and conditions of the transaction are determined by the mortgaged instrument.

  1. Equitable Mortgage

Created by the Equitable Mortgages Act CAP 291. The borrower deposits his title deed with the mortgagee but without delivering possession of the mortgaged property.

 

DUTIES OF MORTGAGORS AND CHARGORS

  1. To repay the principal sum and interest
  2. To pay all taxes and rates
  3. To honour previous obligations if the charge or mortgage is a subsequent transaction
  4. To keep the premises in repair
  5. To insure the property in the joint names of the parties
  6. To farm according to the rules of good husbandry in case of agricultural land.
  7. To honour the terms of the lease if the property is a lease.

These obligations terminate upon the discharge of the charge or mortgage or on cancellation of the transaction by the registrar

REMEDIES OF MORTGAGES AND CHARGES

  1. Foreclosure

A Court order which denies the borrower the right to redeem his security. The remedy may be availed by the court after the mortgage debt is due but before redemption. It is provided for by section 67 of the ITPA

  1. Appointment of Receiver

A mortgagee/ chargee is empowered to appoint a receiver to take over the security given by the borrower to facilitate payment of the debt. Exercisable in circumstances in which the lender has the right foreclose. A charge may appoint a receiver if there is a default which continues for one month or if the borrower does not honour a demand notice in three months. The amount recovered by the receiver must be applied to pay rates and taxes, prior mortgages, any commission payable, insurance premium, interest payable under charge/mortgage

  1. Statutory Power of Sale

The power of mortgagee or charge to sell the mortgaged property in the event of default by the borrower. This right is exercisable if:-

  • There is no contrary provision in the mortgaged instrument
  1. Borrower’s signature has been attested to by an advocate
  2. Notice to pay the amount has been served upon the borrower who has not responded in three months time or interest has in arrears for 2months. The monies realised must be applied to pay prior encumberances, expenses of the sale, mortgage or charge, subsequent encumberances if any.
  3. Consolidation

The equitable right of a chargee holding several charges to insist that all be redeemed together.

This right is only exercisable if:-

  1. The mortgages had been executed by the same borrower
  2. The charges are held by the same chargee
  3. There has been default in respect to all of them
  4. The securities are still in existence
  5. The right to consolidate is expressly reserved by the instruments
  6. Suit on Personal Covenant

The right of a chargee or mortgagee to sue the borrower in the event of default. It is an action for recovery of the amount lent. The right is exercisable if: –

  1. The mortgagee/ borrower has executed a personal covenant to repay
  2. Security provided is destroyed by a wrongful act or default by the borrower
  3. The borrower has refused to deliver possession to a mortgagee who is so entitled.

RIGHT OF REDEMPTION

This is the right of the borrower to recover his security from the mortgagee/chargee. The right is recognized by common law and equity. During the contractual period of the transaction, the borrower has the legal right to redeem by paying the amount due at any time.

If the amount is not paid within the contractual period, the borrower loses the legal right to redeem but has an equitable right to redeem which must be exercised within a reasonable time as it is conferred by equity. The equitable right to redeem is only exercisable after the legal right to redeem is exhausted.

In law the borrower has unrestricted equitable right to redeem his security. Any provision in a mortgage or charge purporting to deny the borrower the equitable right to redeem is void.

This right must not be subjected to any conditions by the charge or mortgagee.

However, the equitable right to redeem is lost when the property is sold or a foreclosing order is made by the court. The right of redemption is exercisable by

  • Any person having an interest in the property
  • An executor or a signee
  • A guarantor
  • A judgment creditor

The equitable right to redeem must be distinguished from equity of redemption which is the residual interest in property conveyed to the chargee or mortgagee which is retained by the borrower. This interest is extinguished on foreclosure.

The equity of redemption enables the borrower exercise equitable right to redeem.

 

 

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THE COURT SYSTEMS NOTES

THE COURT SYSTEMS

ESTABLISHMENT, STRUCTURE, COMPOSITION AND JURISDICTION OF

COURTS

The Courts operate two levels: Superior Courts and Subordinate Courts. The important aspects in the Structure of Courts are:

  1. The structure – The hierarchy or levels of Courts.
  2. Establishment – The composition or who presides in that Court.

iii. Jurisdiction – The powers of different Courts to hear and determine disputes.

Jurisdictions are either Geographical / territorial limits of their powers or Functional powers (to hear Original matter, Appellate matter or both matters or subject matter (whether it is civil or criminal justice) or Pecuniary (the range of monetary or financial value of subject matter).

The figure illustrates the structure and explains the hierarch of the Courts as it is today in Kenya.

 

The arrow on the figure shows the hierarchy of courts in Kenya. Courts Superior Court (consist of Supreme Court, Court of Appeal and High Court) and Subordinate Courts (Resident Magistrate Court, Kadhi Courts, District Magistrate Courts Classes 1st, 2nd and 3rd.) The arrows show flow of appeal from one level to the next. The arrows represent flow of appeals in both civil and criminal appeals except criminal appeals from District Magistrates courts. District Magistrate courts are situated in all the districts except of District Magistrate Class III which in some sparsely populated Districts especially North Eastern Part of Kenya where their power.

There are two levels of Court Martial, Tribunals, Magistrate class III which go to Resident powers have been delegated by the Chief Justice to the District Officers through notices in the Kenya Gazette. This structure of the courts is based on the provisions of the Constitution, the Magistrates Court Act (Cap. 10), and the Kadhis Court Act (Cap. 11) and the Armed Forces Act (Cap. 199) Laws of Kenya.

 

THE SUPREME COURT

The Supreme Court of Kenya is established under Article 163 of the Constitution of Kenya. It comprises of 7 (Seven) Judges: the Chief Justice, who is the president of the Court, the Deputy Chief Justice, who is the deputy to the Chief Justice and the vice-president of the court and five other judges.

The Supreme Court is properly constituted for purposes of its proceedings when it has a composition of five judges and has exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President arising under Article 140 and subject to clause (4) and (5) of Article 163 of the Constitution, appellate jurisdiction to hear and determine appeals from the Court of Appeal and any other court or tribunal as prescribed by national legislation.

Appeals from the Court of Appeal to the Supreme Court are as a matter of right in any case involving the interpretation or application of this Constitution and in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5). The Supreme Court may review a certification by the Court of Appeal and either affirms, vary or overturn it.

The Supreme Court may give an advisory opinion at the request of the national government, any State organ, or any county government with respect to any matter concerning county government.

All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court.

 

THE COURT OF APPEAL

Establishment: The Court of Appeal is established under Article164 of the Constitution of Kenya 2010.

Composition: The Court of Appeal consists of a number of judges, being not fewer than 12 (twelve), as may be prescribed by an Act of Parliament and the Court is to be organized and administered in the manner prescribed by an Act of Parliament. The Court comprises of a President of the Court of Appeal who is elected by the judges of the Court of Appeal from among themselves. The Court of Appeal Judges retire at the age of 74 years.

Jurisdiction: The Court of Appeal is a superior court of record therefore it sets precedents. It has limited original jurisdiction. It was created to hear appeals from the High court. The only moment the Court Appeal can have original jurisdiction is in punishment for contempt of court, and when stating execution of orders of the High Court. Procedure: The practice and procedure of the court of appeal are regulated by the rules of court made by the Rules Committee constituted under the Appellate Jurisdiction Act (Cap. 9). The Act provides that an uneven number of at least three judges shall sit for the determination of any matter by the court. The decision of the court shall be according to the opinion of a majority of the judges who sat for the purposes of determining that matter.

The court has powers to:

  1. Determine a case finally.
  2. Order for a trial.

iii. Order for a re-trial.

  1. Frame issues for the determination of the High Court.
  2. Receive additional evidence or order that it be taken by another court.

 

Objective of the Court

These are provided for in Section 3 of the Supreme Court Act, No. 7, of 2011

  1. Assert the supremacy of the Constitution and the sovereignty of the people of Kenya;
  2. Provide authoritative and impartial interpretation of the Constitution;
  3. Develop rich jurisprudence that respects Kenya’s history and traditions and facilitates its social, economic and political growth;
  4. Enable important constitutional and other legal matters, especially matters on transition to the new Constitution be determined with due regard to the circumstances, history and cultures of the people; and
  5. Improve access to justice.

 

THE HIGH COURT

Establishment: The High Court is established under Article 165 and it consists of a number of judges to be prescribed by an Act of Parliament. The Court is organized and administered in the manner prescribed by an Act of Parliament. The Court has a Principal Judge, who is elected by the judges of the High Court from among themselves. Composition: Ordinarily, the High Court is duly constituted by one Judge sitting alone. However there are instances where two or more High Court Judges may be required to determine certain kinds of cases.

Appointment of Judges: Are appointed by the President in accordance with the advice of Judicial Service Commission. They are laid down special qualifications required of a person to be eligible for appointment as a Judge, namely: He / she is or has been a Judge of a Court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or in the Republic of Ireland or a court having jurisdiction in appeals from such a Court or;

He /she is an Advocate of the High Court of not less than seven years standing or;

He /she holds and has held for a period of or periods amounting in aggregate to not less than seven years, one or other of the qualifications specified in Section 12 of the Advocates Act.

 

Jurisdiction:

  1. The High Court has unlimited original jurisdiction in criminal and civil matters.
  2. The High Court has jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.

iii. The High Court has jurisdiction to hear an appeal from a decision of a tribunal appointed under the Constitution or national legislation to consider the removal of a person from office, other than a tribunal appointed under Article 144.

  1. The High Court has jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of: the question whether any law is inconsistent with or in contravention of the Constitution, the question whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of the Constitution, any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government, and a question relating to conflict of laws under Article 191;any other jurisdiction, original or appellate, conferred on it by legislation.
  2. The High Court does not have jurisdiction in respect of matters reserved for the exclusive jurisdiction of the Supreme Court under this Constitution or falling within the jurisdiction of the courts contemplated in Article 162 (2).
  3. The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court. Also being a Superior court of record means that the decisions of the High Court as precedents, are binding on the subordinate courts by the doctrine of stare decisis.

vii. Although High Court has unlimited original jurisdiction in civil and criminal cases in actual practice, it will hear those criminal cases which cannot be tried by the subordinate courts i.e. murder and treason whereas in civil cases, it has jurisdiction where the value of the subject matter, in dispute exceeds Kshs. 500,000.00. The High

Court has power to pass any sentence authorized by law.

viii. In addition to the ordinary civil and criminal jurisdiction or the High Court, there are other matters, which can only be heard by the High Court. Thus, the High Court enjoys special powers and jurisdiction in the following matters as conferred to it by the constitution and other legislations some of which are given hereinafter:-

 

High Court Special Powers

  1. Supervisory Jurisdiction

The Constitution confers specific, powers on the High Court to exercise supervisory jurisdiction in any civil and criminal proceedings before subordinate courts and may make such orders, issue such writs and give such directions as may consider appropriate for the purpose of ensuring that justice is duly administered by such courts. This includes the power of the High Court to transfer proceedings from one court to the other. To invoke the supervisory jurisdiction of the High Court a person must have exhausted all other available remedies and right of appeal. In exercise of its supervisory powers under judicial review, the high court may issue any of the prerogative orders of:

  1. Mandamus – The literal meaning of mandamus is “we command”. This is an Order issued by the High Court to any person or body commanding him or them to perform a public duty imposed by law or state. The order is available to compel administrative tribunals to do their duty e.g. to compel a licensing board to issue a license on application of him who has met the prescribed criteria.
  2. Certiorari – The term means to “be informed”. This is an Order issued by the High

Court directed at an inferior court body exercising judicial or quasi-judicial functions to have the records of the proceedings presented to the High Court for the purposes:

To secure an impartial trial, to review an excess of jurisdiction, to challenge an ultra vires act, to correct errors of law on the face of the record. To quash a judicial decision made against the rules of natural justice. An order of certiorari will be wherever anybody of persons having legal authority to determine questions affecting the rights and having a duty to act judicially, acts in excess of their legal authority. It therefore serves to quash what has been done irregularly.

  1. c. Prohibition – This is an order issued by the High Court to prevent an inferior court or tribunal from hearing or continuing to hear a case either In excess of its jurisdiction or in violation of the rules of natural justice.
  2. D. Writ of Habeas corpus – Harbeas corpos means „produce the body‟, dead or alive.

This order is issued where the personal liberty of a person is curtailed by arrest and confinement without legal justification. By issuing this order, the High Court calls upon the person holding the bodies to answer by what authority are they continuing to withhold the individual and with the aims at securing release of such persons held apparently without legal justification.

  1. Interpretation of the constitution

The Constitution provides that where any question as to the interpretation of the constitution arises in any proceedings in any subordinate court, and the court is of the opinion that the question involves a substantial question of law, the court may, and shall if any party to the proceedings so requests, refer the question to the High Court. The High Court shall be composed of an uneven number of judges, not being less than three when it determines the constitutional question referred to it. The decision of the High Court is binding on the Court that referred the question to the High Court and it must dispose of the case in accordance with the High Court’s decision.

  1. Admiralty Jurisdiction

Section 4 of the Judicature Act Chapter 8 (1967) provides that the High Court will act as a court of admiralty and will decide “matters arising on the high seas or in territorial waters or upon any lake or other navigable inland waters in Kenya”. The law applicable to be exercised “the conformity with international law and the comity of nations”.

  1. Election jurisdiction

Under the National Assembly and Presidential Election Act, the High court has special powers to hear and determine disputes arising from the national electoral process. The High Court may make an order as it deems fit, including the nullification of the election results upon hearing of a petition presented to it by a voter or loser in the election.

For the High Court to nullify the election of a Member of Parliament, the petitioner must prove that an election offence has been committed. The composition of the High court is that one (1) Judge sits to determine dispute in parliamentary election while Three (3) Judges must sit if it is presidential election. Any appeal on the High Court decision on Presidential election goes to the Court of Appeal where at least five (5) Judges will sit to determine the appeal. Disputes in the election of councilors go to subordinate courts.

  1. Succession/Probate Jurisdiction

The Probate Division of the High court has jurisdiction to hear any application and determine any dispute and pronounce such decree and issue such orders as my be expedient in inheritance matters e.g. the High Court may issue probate i.e. a person has been validly appointed by a will to administer the property of the deceased.

  1. Matrimonial Cases

The court exercises jurisdiction in divorce matters. In exercise of it matrimonial jurisdiction, the High Court may issue orders for:

  • Dissolution of marriage.
  • Nullity of marriage.
  • Separation and maintenance (alimony).
  • Custody, adoption and guardianship of infants
  • Spousal Property and financial adjustments etc
  1. Other powers
  • To protect and enforce Fundamental rights and Freedoms of individuals which are set out in Chapter Four of the Constitution also otherwise referred to as Bill of Rights.
  • To hear and determine Bankruptcy proceedings.
  • To supervise winding up of dissolved companies.

 

EMPLOYMENT AND LABOUR RELATIONS COURT

Establishment of the Court

The Employment and Labour Relations court is established in pursuant of Article 162 (2)(a) of the Constitution of Kenya 2010, for the purpose of settling employment and Industrial relations disputes and the furtherance, securing and maintenance of good employment and labor relations in Kenya.

The Employment and Labour Relations Court is a superior court of record with the status of the High Court that exercises jurisdiction throughout Kenya.

Jurisdiction: The court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162 (2) of the Constitution and the Provisions of the Industrial Court Act or any other written Law which extends jurisdiction to the court relating to employment and Labor relations including:-

  1. Disputes relating to or arising out of employment between an employer and an employee
  2. Disputes between an employer and a trade union.
  3. Disputes between an employer’s organization and a trade union’s organization,
  4. Disputes between trade unions,
  5. Disputes between employer organizations,
  6. Disputes between an employer’s organizations,
  7. Disputes between an employer’s organization and trade union,
  8. Disputes between a trade union and a member thereof,
  9. Disputes between an employer’s organization or a federation and a member thereof,
  10. Disputes concerning the registration and election of trade union officials, and
  11. Disputes relating to the registration and enforcement of collective agreements.

In exercise of its jurisdiction, the court shall have power to make any of the following orders:-

  1. Interim preservation orders including injunctions in cases of urgency
  2. A prohibitory order
  3. An order for specific performance
  4. A declaratory order
  5. An award of compensation in any circumstances contemplated under the Industrial Court Act or any written Law.
  6. An award of damages in any circumstances contemplated under the Industrial Court Act or any written Law.
  7. An order for reinstatement of any employee within three years of dismissal, subject to such conditions as the court thinks fit to impose under circumstances contemplated under any written Law.
  8. Any other appropriate relief as the court may deem fit to grant.

 

Appellate Jurisdiction

The court shall have appellate jurisdiction to hear and determine appeals from:-

  1. Decisions of the Registrar of trade unions, and
  2. Any other court, local tribunal or commission and prescribed under any Written Law.

 

Composition of the court

The court shall consist of;

  1. The Principal Judge; and
  2. Such number of Judges as the President may, acting on the recommendations of the

Judicial Service Commission, appoint

  • The Principal Judge shall be elected in accordance with the procedure prescribed in Article 165 (2) of the Constitution.
  • The Principal Judge shall hold office for a term of not more than five years and shall be eligible for re-election for one further term of five years.
  • The Principal Judge shall have supervisory powers over the Court and shall be answerable to the Chief Justice.
  • In the absence of the Principal Judge or in the event of a vacancy in the office of the

Principle Judge, the Judges of the Court may elect any other Judge to have and exercise and perform the powers and functions of the Principal Judge, and who shall be deemed to be the Principle Judge.

 

ENVIRONMENT AND LAND COURT

The Environment and Land Court as one of the Courts contemplated by article 162(2) is a Superior Court just like its counterpart, the Industrial Court. Both have the same status as the High Court.

The court is established under section 4 of the Environment and Land Court Act No. 19 of 2011. It has jurisdiction to hear any other dispute relating to environment and land.

The jurisdiction of the court is provided under section 13 of the Act. The Court has original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of Act or any other written law relating to environment and land.

The court has powers to deal with disputes relating to land administration and management.

The court is also empowered to hear cases relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land. The court also exercises appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters falling within the jurisdiction of the Court.

The court further exercises supervisory jurisdiction over the subordinate courts, local tribunals, persons or authorities in accordance with Article 165(6) of the Constitution.

 

SUBORDINATE COURTS

The Subordinate courts are the courts established under Article 169 of the Constitution of Kenya 2010. They are;

  1. The Magistrates’ Courts
  2. The Kadhis’ Courts
  3. The Court Martial and
  4. Any other court or local tribunal as may be established by an Act of Parliament.

 

MAGISTRATES’ COURTS

Jurisdiction

1). Criminal Jurisdiction

As a court of first instance, the magistrates’ court has jurisdiction and powers in proceedings of a criminal nature as are for the time being conferred on it by;

(a)The Criminal Procedure Code (Cap.75 of the Laws of Kenya) or

(b)Any other written Law.

 

2). Civil Jurisdiction

The magistrates’ courts shall have and exercise jurisdiction and powers in proceedings of a civil nature in which the value of the subject matter in dispute does not exceed;

(a) Seven million shillings for a Chief Magistrate

(b) Five million shillings for a Senior Principal Magistrate

(c) Four million shillings for a Principal Magistrate

(d) Three million shillings for a Senior Resident Magistrate

(e) Two million shillings for a Resident Magistrate

Special courts have been established to hear and determine matters filed therein.

They include;

  1. The Anti-corruption Court
  2. The Children Court

The above courts are manned by magistrates gazetted for that purpose by the Honourable Chief Justice. Magistrates Courts also have jurisdiction to hear and determine traffic matters in the manner provided for under the Traffic Act, Cap.403 of the Laws of Kenya.

3). Appeals

Any person who is aggrieved by a decision of the magistrates’ court, arising either from a criminal or civil trial can appeal to the High Court.

 

KADHIS’ COURTS

Kadhis’ Courts are established under Article 170 of the Constitution. Their jurisdiction is limited to the determination of questions of Muslim Law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim Religion and submit to the jurisdiction of the Kadhis’ courts.

 

COURTS MARTIAL

The Court Martial hears cases involving people serving in the Military. They are established under the Armed Forces Act.

 

Tribunals

Tribunals are bodies established by Acts of Parliament to exercise judicial or quasi-judicial functions. They supplement ordinary courts in the administration of justice. Tribunals, however, do not have penal jurisdiction.

Tribunals, like the courts, have to respect the Bill of Rights in their decisions and not be repugnant to justice and morality or be inconsistent with the Constitution or other laws of the land. Most tribunals are subject to the supervision of the High Court. All tribunals fall under the Judiciary.

 

JUDICIAL SERVICE COMMISSION

Establishment: It is established by Article 171 of the Constitution.

Composition/Membership

Under Article 171 (2) or the Act, the Judicial Service Commission shall consist of:

  1. a) The Chief Justice, who shall be the chairperson of the Commission;
  2. b) One Supreme Court judge elected by the judges of the Supreme Court;
  3. c) One Court of Appeal judge elected by the judges of the Court of Appeal;
  4. d) One High Court judge and one magistrate, one a woman and one a man, elected by the members of the association of judges and magistrates;
  5. e) The Attorney-General;
  6. f) No advocates, one a woman and one a man, each of whom has at least fifteen years experience, elected by the members of the statutory body responsible for the professional mutilation of advocates;
  7. g) One person nominated by the Public Service Commission; and
  8. h) One woman and one man to represent the public, not being lawyers, appointed by the President with the approval of the National Assembly.

The chief Registrar of the Judiciary shall be the Secretary to the Commission,

Members at the Commission, apart tram the Chief Justice and the Attorney-General, shall hold office, provided that they remain qualified; for a term of 6 years and shall be eligible to be nominated for one further term of five years.

 

POWERS OF THE COMMISSION

  1. To act independently, must be under the control or directions of any person or authority.
  2. To make rules to regulate its procedure
  3. To delegate powers to its members (judges)
  4. To act not withstanding a vacancy in its membership.
  5. To confer powers and impose duties on public service with the president’s consent.

 

FUNCTIONS OF THE JUDICIAL SERVICE COMMISSION

Under Article 72 of the Constitution, the Judicial Service Commission shall promote and facilitate the independence and accountability of the judiciary and the efficient, effective and transparent administration of justice and shall:

  1. Recommend to the President Persons far appointment as judges;
  2. Review and make recommendations on the conditions of service of:-
  3. Judges and judicial officers, other than their remuneration; and
  4. The staff of the Judiciary;
  5. Appoint, receive complaints against, investigate and remove from office or otherwise discipline registrars, magistrates, other judicial officers and other staff of the

Judiciary, in the manner prescribed by an Act of Parliament;

  1. Prepare and implement programmes tar the continuing education and training of judges and judicial officers; and
  2. Advise the national government on improving the efficiency of the administration of justice. In the performance of its functions, the Commission shall be guided by the following:-
  3. Competitiveness and transparent processes of appointment of judicial officers and other staff of the judiciary; and
  4. The promotion of gender equality.

Generally, the JSC serves the following functions as well:

  1. Administration: It is the principal administrative organ of the judiciary i.e. administers the judicial department
  2. Advisory: It advises the President on the appointment of Judges of superior courts.

Its vote is purely advisory.

  1. Appointment: It engages-Magistrates, High Court Registrars, Kadhis and other judicial staff e.g. personnel, officers. clerks etc. –
  2. Discipline: It disciplines Magistrates, Registrars, Kadhis and other staff of the department.

THE ATTORNEY GENERAL

Establishment: This office is established by Article 156 (1) of the constitution. It is an office in the public service.

Appointment: Under Article 156 (2), the Attorney-General shall be nominated by the President and, with the approval of the National Assembly, appointed by the President.

Under Article 156 (3) the qualifications for appointment as Attorney-General are the same as for appointment to the office of Chief Justice, i.e.: o At least 15 years experience as a superior court judge; or o At least 15 years’ experience as a distinguished academic, judicial officer, legal practitioner or such experience in other relevant fecal field

 

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NATURE AND CLASSIFICATION OF LAW NOTES

NATURE AND CLASSIFICATION OF LAW

The term “law” has no assigned meaning.  It is used in a variety of senses.  The study of law is referred to as jurisprudence or legal philosophy.

According to Hart Law is a coercive instrument for regulating social behaviour.  Law has also been defined as a command backed by sanctions.

According to Salmond, law consists of a body of principles recognised and applied by the state in the administration of justice.

Law has also been defined as a collection of binding rules of human conduct prescribed by human beings for obedience of human beings.

Therefore law implies rules or principles enforced by courts of law.  Rules of law are binding hence differ from other rules or regulations.  Rules of law are certain.

 

In summary therefore, law is an aggregate of conglomeration of rules enforced by courts of law at a given time.

 

Rules of law originate from acts of parliament, customary and religious practises of the people, they may also be borrowed from other countries.

 

Law and Morality

 

Morality consists of prescriptions of the society and is not enforceable, however, rules of law are enforceable.  Wrongs in society are contraventions of either law or morality or both.

 

However, law incorporates a significant proportion of morality and to that extent morality is enforceable.

However, such rules/contraventions are contraventions of law for example murder, rape theft by servant or agent.

 

Purposes or Functions of Law

 

(i)   Rules of law facilitate administration of justice.  It is an instrument used by human beings to achieve justice.

 

(ii)  Law assists in the maintenance of peace and order.  Law promotes peaceful co-existence, that is, prevents anarchy.

 

(iii) Law promotes good governance.

 

(iv) Law is a standard setting and control mechanism.

 

(v) Provision of legal remedies, protection of rights and duties.

 

Types and Classification of Law

 

  1. Written Law

These are rules of law that have been reduced into a written form.  They are embodied in a formal document for example The Constitution of Kenya, laws made by parliament (statutes).  Such laws prevail over unwritten Law.

 

  1. Unwritten Law

These are rules of law that have not been reduced into written form.  They are not embodied in any single document for example African Customary Law, Islamic Law, Hindu Law, Common Law, Equity.  Their existence must be proved.

 

  1. National or Municipal Law

These are rules of law operational within the boundaries of a country.  It regulates the relation between citizens and the state.  It is based on Acts of Parliament, customary and religious practices of the people.

 

  1. International Law

It is a body of rules that regulates relations between countries/states and other international persons eg United Nations.  It is based on international agreements or treaties and customary practices of states

 

  1. Public Law

It consists of those fields or branches of law in which the state has an interest as the sovereign eg criminal law, constitutional law, and administrative law.

 

Public law is concerned with the constitution and functions of the various organs of government including local authorities, their relations with each other and with the citizens.

 

  1. Private law

It consists of those fields or branches of law in which the state has no direct interest as the sovereign egg law of contracts, law of tort, law of property, law of succession.

 

Private law is concerned with day to day transactions of legal relationships between persons.  It defines the rights and duties of parties.

 

  1. Substantive Law

It is concerned with the rules themselves as opposed to the procedure on how to apply them.  It defines the rights and duties of parties and provides remedies when those rights are violated e.g. law of contract, negligence, and defamation.  It defines offences and prescribes punishment e.g. Penal Code Cap 63.

 

  1. Procedural Law

It consists of the steps or guiding principles or rules of practice to be complied with or followed in the administration of justice or in the application of substantive law.

It is also referred to as adjective law e.g. Criminal Procedure code Cap 75, civil procedure Act Cap 21.

 

  1. Criminal Law

Criminal law has been defined as the law of crimes.  A crime has been defined as an act or omission, committed or omitted in violation of public law eg murder, manslaughter, robbery, burglary, rape, stealing, theft by servant or agent.

 

All crimes or offences in Kenya are created by parliament through statutes.  Suspects are arrested by the state through the police.  However, individuals have the liberty to arrest suspects.  Offences are generally prosecuted by the state through the office of the Attorney General.

 

Under section 77 (2) (a) of the constitution an accused person is presumed innocent until proven or has pleaded guilty.  It is the duty of the prosecution to prove its case against the accused.  The burden of proof rests on the prosecution.

 

The standard of proof in criminal cases is beyond any reasonable doubt.  In the event of any reasonable doubt the accused is set free (acquitted). The court must be satisfied that the accused committed offence as charged.  If the prosecution discharges the burden of proof the accused is convicted and sentenced which could take any of the following forms.

 

  • Imprisonment term
  • Capital punishment
  • Corporal punishment
  • Community service
  • Fine
  • Conditional discharge
  • Unconditional discharge

 

The purpose of criminal law is;

  • To ascertain whether or not the crime has been committed.
  • To punish the crime where one has been comm-itted.

 

10.Civil Law

Civil law is concerned with violations of private rights in their individual or corporate capacity eg breach of contract, negligence, and defamation, nuisance, passing off trespass to the person or goods.

 

If a person’s private rights are violated, the person has a cause of action.  Causes of action are recognized by statutes and by the common law.  The person whose rights have been allegedly violated sues the alleged wrong doer. It is his duty of the plaintiff to adduce evidence to prove his case the burden of proof lies on the plaintiff.

If the plaintiff discharges the burden of proof then he wins the case and is awarded judgement which could take any of the following forms:

 

  • Damage, i.e. monetary compensation
  • Injunction
  • Winding up/liquidation

 

Purpose of civil laws

(i)        Protection of rights and enforcement of duties.

(ii)       Provision of legal remedies as and when a person’s rights have been violate

 

SOURCES OF KENYA LAW

 

A source of law is the origin of the rule, which constitutes a law, or legal principle.  The phrase `sources of Kenya law’ therefore means the origin of the legal rules which constitute the law of Kenya.

 

The sources of Kenya law are specified in the Judicature Act 1967, S.3(1) of which states that the jurisdiction of the High Court, the Court of Appeal and all subordinate courts shall be exercised in accordance with:

The constitution;

 

“All other written laws”, (including certain Acts of Parliament

The Kadhi’s Courts Act 1967

Section 5 of the Kadhi’s Courts Act provides that a Kadhi’s Court shall have and exercise jurisdiction in matters involving the determination of Muslim Law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion.

The Hindu Marriage and Divorce Act 1960, S.5 (1)

Provides that a marriage between Hindus may be solemnized in accordance with the customary rites and ceremonies of either party thereto.

The Legal Pyramid

The sources of Kenya law mentioned above may be summarised with the aid of the following diagram or “legal pyramid”:

 

 

STATUTE LAW

 

This is an Act of Parliament.  This is law made by parliament directly in exercise of legislative power conferred upon it by the constitution.

Section 46(5) of the Kenya Constitution states that “a law made by Parliament shall be styled an Act of Parliament”.

 

Bills

An Act of Parliament begins as a Bill, which is the draft of law that Parliament intends to make.  Section 46(1) of the constitution states that “the legislative power of Parliament shall be exercisable by Bills passed by the National Assembly”.

 

Types of Bills

A Government Bill, if it is presented to Parliament by the Government with a view to its becoming a law if approved by Parliament.

 

A Private Members’ Bill if it is presented to Parliament by some members, in a private capacity and not on behalf of the Government.

 

Bills may also be divided into Public Bills and Private Bills.

 

A Bill, whether a Government Bill or a Private Members’ Bill, is a Public Bill if it seeks to alter the law throughout Kenya.  An example is the abortive Marriage Bill, 1979, whose aim was to introduce a uniform marriage law for all Kenyans irrespective of their racial, religious or ethnic differences.

 

A Private Bill if it does not seek to alter the general law but rather to confer special local powers.  An example is where a local authority such as a Municipal Council requires power to purchase land compulsorily.

 

PROCEDURE FOR ENACTMENT OF LAWS

 

The procedure to be followed in Parliament in order to enact Law is governed by Constitution and  Orders 94-125 of National Assembly Standing Orders, as amended up to and including 22nd July, 1983.

 

A Government Bill and a Private Members’ Bill follow the same procedure pursuant to Order 116 which provides that, except as otherwise provided in Part XVI of the Orders, the Standing Orders relating to Public Bills shall apply in respect of Private Bills.

Publication of Bills in the Kenya Gazette

 

Order 98 provides that no Bill shall be introduced unless it has been published in the Gazette and a period of fourteen days beginning with the day of such publication, or such shorter period as the House may resolve with respect to the Bill.

the period of publication for a Consolidated Fund Bill, an Appropriation Bill or a Supplementary Appropriation Bill is seven days only.

 

1. First Reading

Order 101 provides that “every Bill shall be read a First Time without motion made or question put and shall be ordered to be read a second time on such day as the member in charge of it shall appoint”.  No debate takes place it is therefore a mere formality.

 

  1. Second Reading

During the second reading the general merits of the Bill may be debated and any necessary amendments are proposed to the various clauses it contains.  Every member wishing to contribute is offered the opportunity.

 

  1. Committal Stage

Order 103 provides that a Bill having been read a second time shall stand committed to a committee of the Whole House, unless the House commits the Bill to a select committee of members of parliament for a critical analysis.

 

Order 104 provides that all committees to which Bills are committed shall have power to make such amendments thereto as they think fit, and shall report the amendment to the House.

 

  1. Report Stage

Order 106(12) provides that at the conclusion of the proceedings in committee on a Bill a Minister, or the member in charge, shall move “That the Bill (as amended) be reported to the House”, and the question thereon shall be decided without amendment or debate.  The chairman of the select committee lenders its report to the National Assembly.

 

  1. Third Reading

It is provided in Order 112(1) that on the adoption of a report on a Bill the Third Reading may with leave of Mr. Speaker be taken forthwith and if not so taken forthwith shall be ordered to be taken on a day named by the member in charge of the Bill.

Order 112(2) provides that on the third reading of a Bill amendments may be proposed similar to those proposed on second reading.

 

  1. THE PRESIDENT’S ASSENT

Under section 46(2) of the Constitution a Bill passed by the National Assembly must be presented to the

President for his assent.

|The President must signify his assent or refusal to the speaker of the National Assembly within 21 days

of receipt of the Bill.

If he refuses to assent, he must within l4 days thereof deliver to speaker a written memorandum of the

provisions he would like reconsidered and his recommendations and the National Assembly may either:

Re-pass the Bill incorporating the Presidents recommendation with or without amendments and resent it for his assent or

Re-pass the Bill in its original form thus ignoring the President’s recommendations.  If the resolution

to re-pass the Bill is such is supported by at least 65% of all members excluding ex-officio members the President must signify his assent within 14 days of the resolution.

 

  1. PUBLICATION

Section 46(3) of the constitution states that `upon a Bill that has been passed by the National Assembly being presented to the President for assent, it shall become law and shall thereupon be published in the Kenya Gazette as a law’.  The wording of this section does not appear to prescribe the President’s assent as a condition precedent to the enactment of a Bill, although in practice the assent is so regarded.

  1. COMMENCEMENT

Section 46(4) of the constitution provides that a law made by Parliament shall not come into operation until it has been published in the Kenya Gazette.  But it also empowers Parliament, subject to certain exceptions, to postpone the coming into operation of any law and to make laws with retrospective effect.

 

ADVANTAGES OF ACTS OF PARLIAMENT

 

  1. i) Democratic in nature

It is democratic in the sense that it reflects the wishes of Kenyans as to what the law should be.  This is because it is made by a Parliament which consists of representatives of the people who are elected at intervals of not more than five years.

 

(ii)Resolution of Legal Problems

It enables Parliament to find legal solutions to any problem that the country may face.  An English judge once stated that an Act of Parliament can in theory deal with any problem except that it cannot change man to woman, (although it may provide that reference therein to `man’ shall include ‘woman’.)

(iii) Dynamic: It enables new challenges that emerge in the course of social development to be legally dealt

with by the passing of new Acts of Parliament, or amending some of the existing Acts.

(iv)  General Application: It is usually a statement of general principles and rules and can therefore be applied to

different situations in a flexible manner as determined by the court in a particular situation

(v) Uniformly Applied. It applies indiscriminately.

(vi)  Publicity: Statute law is the most widely published source of law.

 

DISADVANTAGES OF STATUTE LAW

 

(i)        Imposition of law

Some Acts are imposed on the people and reflect the views of the Executive, or pundits in the ruling political

party.

Parliament now governs only in the technical formal sense”, and largely rubber-stamps what is put before it

by the Executive.

 

(ii)     Wishes of members of parliament

Acts of Parliament do not reflect the wishes of the people (voters) but the wishes of the individuals who constitute Parliament at any given time.  During debates on Bills, Members of Parliament express their personal views and finally enact laws on the basis of those views.  They do not hold meetings in their constituencies to ascertain what the people’s views on Bills are so that they may eventually report back to Parliament

 

(iii)      Bulky and technical Bills

Some Bills are so bulky and technical that they are passed without sufficient debate because Parliament lacks the time and knowledge to consider them in detail. E.g Finance Bills.

 

(iv)     Formalities

The process of enacting a statute that would substantially conform to the wishes of the people affected by it would be very slow.  This is because very many public meetings must be held before a consensus on the proposed law can be reached.  The delay in re-introducing the abortive Marriage Bill, 1979 illustrates this point.

 

STATUTORY INTERPRETATION

 

The precise meaning of a law written in an Act may cause a legal dispute.  This is so because, although the law is written and can therefore be read by any literate person, some of the words thereof may not mean the same thing to different readers.  This fact has been confirmed by the arguments adduced in court by parties to such disputes.

 

Principles and Presumptions of Construction

 

In the course of settling some of these disputes the courts in England have elaborated the rules which they will use in order to interpret, if necessary, any Act.  Assuming that the same rules have been or will be adopted by Kenya courts, they may be summarised as follows:

 

(i)        Literal rule

The primary rule of interpretation is known as the literal rule.  It requires judges to interpret the words of a statute according to their grammatical or literal meaning.

 

Generally speaking, every word in an Act must be given a meaning and no word is to be added to, or taken from, the Act.

 

(ii)       ‘Mischief’ rule  (Rule in Heydons Case)

Under this rule the court will examine the Act to ascertain what its purpose was and the ‘mischief’, or defect, in the common law that it was intended to remove.  This rule was explained in HEYDON’S CASE as follows:

 

“Four things are to be discussed and considered:

 

(i)   what was the common law before the making of the Act?

(ii)  what was the mischief and defect for which the common law did not provide?

(iii) what remedy has Parliament resolved and appointed to cure the disease?

(iv) what is the true reason for the remedy?  Judges shall…. make such construction as shall suppress the mischief and advance the remedy”.

 

A statute will only be construed in accordance with this rule if its construction in accordance with the literal rule would fail to suppress, or punish, the mischief.  An example of this can be seen in the case of SMITH v HUGHES where it was held that a prostitute who attracted the attention of passers by from a balcony window above the street had solicited in a street within Section 1(1) of the English Street Offences Act, 1959.  The judge stated as follows:

 

“I approach the matter by considering what is the mischief aimed at by this Act.  Everybody knows that this was an Act intended to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes”.

 

Viewed in that way, the actual place from which a prostitute attracted the attention of somebody walking in the street did not matter, and she will be deemed to have solicited in the street

 

(iii)      The ‘Golden’ rule

 

The so-called ‘golden’ rule will be used by the court in order to avoid arriving at an absurd decision under the literal rule of construction.  It was explained by Parker B in case of BECKE v SMITH as follows:

“It is a very useful rule, in the construction of a statute, to adhere to the ordinary meaning of words used, and to the grammatical construction, unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified.”.

 

An example of the application of the rule is INDEPENDENT AUTOMATIC SALES LTD v KNOWLES & FOSTER where it was held that a debt may be regarded as a “book debt” within s.95 (2)(e) of the English Companies Act 1948 even though it has not been entered in the books of the business, provided that it would or could in the ordinary course of such business be entered in well-kept books relating to that business.  To restrict the phrase “book debts” to those debts entered in the books of the business would have entailed an unrealistic and illogical categorization of the debts of the business.

 

(iv)The ‘ejusdem generis’ rule

 

This rule states that where general words in an Act follow particular words, the general words are to be construed as being limited to the persons or things within the class designated by the particular words.  For example, in a reference to “cows, goats, donkeys and other animals” the general words “other animals” would be construed to mean animals of the same genus or species as cows, goats and donkeys, that is, domestic animals, and would not include wild animals such as zebras, antelopes or tigers.

 

Expressio unius est etclusio ullerius

Nositier a  Soiis

Rendedo Singular Singular

A statute must be constued as a whole

Rank Principle

Statutes in Pari maleria

 

In EVANS v CROSS, Evans was charged with ignoring a traffic sign, namely, a white line painted in the middle of a road, when overtaking on a bend into the road, contrary to Section 49 of the U.K. Road Traffic Act, 1930.  Section 48(10) of the Act defined a traffic sign as “all signals, warning signposts, direction posts, signs or other devices”.  It was held that the words “or other devices” must be construed ‘ejusdem generis’ the preceding words and, therefore, the white painted line on the road was not a traffic sign.  Evans had therefore not committed an offence under the section

           

APPLIED LAWS

 

Section 2 of the Interpretation and General Provisions Act defines an “applied law” as:

 

(a)   an Act of the legislature of another country or an order in council of the United Kingdom; or

 

(b)  subsidiary legislation made under any of the foregoing, which is for the time being in force in Kenya.

SUBSIDIARY LEGISLATION

This is subordinate or delegated indirect legislation.

subsidiary legislation is ‘any legislative provision (including a transfer or delegation of powers or duties) made in exercise of any power in that behalf conferred by any written law by way of by-law, notice, order, proclamation, regulation, rule of court or other instrument’.

The by-laws, notices, orders, regulations, rules and other ‘instruments’ constitute the body of the laws known as subsidiary legislation.

Although section 30 of the Constitution provides that ‘the legislative power of the Republic (of Kenya) shall vest in the Parliament’, it is not possible for Parliament itself to enact all the laws that are required to run all the affairs of this country.

Many Acts of Parliament require much detailed work to implement and operate them.  In such a case the Act is drafted so as to provide a broad framework which will be filled in later by subsidiary legislation made by Government Ministers or other persons under powers conferred on them by the Act.

 

ADVANTAGES OF DELEGATED LEDISLATION

(a)       Compensation of lost Parliamentary time

Parliamentarians are politicians who have to spend much of their time in their constituencies in order to initiative various harambee projects, explain relevant party or government programmes to the people and listen to the problems of their electors.  The time so spent constitutes a significant reduction of the time required by Parliament for legislation and this reduction can only be compensated for by delegating some of Parliament’s legislative powers.

 

(b)       Speed

Sometimes an urgent law may be needed.  Parliament may not respond to this need, first, because of the slow and elaborate nature of Parliamentary legislative procedure and second, because it is not in session at the material time..

(c)       Technicality of subject matter

Parliamentarians are not experts on all matters that may require legislation.  It may therefore be advisable, if not inevitable, for Parliament at times to delegate the enactment of laws of a technical nature to Government Ministers who will be assisted by the technical officers in Government Ministries and the Attorney-general’s chambers.

 

(d)       Flexibility

The procedure adopted by Ministers to enact laws are flexible and, as stated above, responsive to urgent needs.  The flexibility is a consequence of the fact that they are not governed by the elaborate Standing orders that are an essential feature of parliamentary legislative procedure.

 

A Minister is free to discuss with his officers, and adopt, the procedure that appears most appropriate in the circumstances.

 

DISADVANTAGES

Subsidiary or delegated legislation has been criticised for a variety of reasons, the main ones being that it is:

(a)       Less democratic

The real or ultimate makers of subsidiary legislation are the technical officers in the various government ministries.  These officers have not been elected by the people affected by the laws they make and cannot therefore be made accountable for any undesirable law they make.  To that extent, delegated legislation lacks the democratic spirit that usually inspires, and manifests itself in, parliamentary legislation.  The people of Kenya can always refuse to re-elect parliamentarians who enacted a law that they feel should not have been enacted but they cannot dismiss the civil servants.  Lord Hewart has called this situation “the new despotism”.

 

(b)       Difficult to Control

Although Parliament is theoretically supposed to control subsidiary legislation this is not so in practice.  The various rules or regulations made by government ministries are so numerous that Parliament cannot check whether their makers conformed to its intentions or objectives.  The question that usually comes to the mind is that, if Parliament is too busy to make the law, how can it have the time to scrutinize it?

 

  • Inadequate publicity
  • Sub-delegation and abuse
  • Detail and complexity

 

JUDICIAL CONTROL

 

The courts can declare any law made as subsidiary legislation to be invalid under the ultra vires doctrine. The law may be declared either substantively or procedurally ultra vires.

 

 

 

(a)       Substantive Ultra Vires

A law may be declared substantively ultra vires if the maker had no powers to make it.  This may occur in a number of ways.  For example, the Minister or Authority may have:

(i) Exceeded the powers given by the Act;

(ii)  Exercised the power for another purpose rather than the particular purpose for which it was given, or

 

(b)       Procedural Ultra Vires

A law will be declared procedurally ultra vires if the mandatory procedures prescribed in the enabling Act for its enactment are not followed, such as failure to publish it in the Gazette.

 

LEGISLATIVE OR PARLIAMENTARY CONTROL

 

(i)        Parliamentary approval

(ii)       Ministerial approval

(iii)      Publication in the Kenya Gazette

(iv)      Circulation of draft rules to interested parties.

(v)       Delegation of legislative power to selected persons and bodies

(vi)      Prescribes the scope and procedure of law making.

 

TYPES OF SUBSIDIARY LEGISLATION

 

The definition of subsidiary legislation in s.2 of the Interpretation and General Provisions Act reflects the great variety of nomenclature used by lawyers in relation to delegated legislation.  However, the following are the two major groups into which they fall:

 

(i)        By-Laws

By-Laws are usually made by Local Authorities, such as the Mombasa Municipal Council, under the Local Government Regulations Act, 1963.  Another example are the by-laws made by the members of co-operative societies under Rule 7 of the Cooperative Societies Rules 1969.

 

(ii)       Rules

Rules are usually made by Government Ministers with the assistance of technical officers employed by their Ministries.  An example are the Cooperative Societies Rules, 1969 which were made by the Minister for Co-operative Development under powers conferred on him by s.84 of the Co-operative Societies Act, 1966.

 

Rules made by Government Ministers may also be called Regulations, Orders, Notices or Proclamations.

 

(iii)      Statutes of General Application

Although there is no authoritative definition of a “statute of general application” the phrase is presumed to refer to those statutes that applied, or apply, to the inhabitants of England generally.  In the case of I v I the High Court held that the Married Women’s Property Act 1882 is an English statute of general application that is applicable in Kenya.

 

These laws are applicable only if:

 

(a)   They do not conflict either with the constitution or any of the other written laws applicable in Kenya, and

(b)  The circumstances of Kenya and its inhabitants permit.  In I v I  the High Court held that the English Married Women’s Property Act 1882 was applicable in Kenya because, in the court’s view, the circumstances of Kenya and its inhabitants do not generally require that a woman should not be able to own property.

 

APPLICATION OF THE UNWRITTEN SOURCES OF KENYA LAW

 

It is a rule of Kenya Law that unwritten laws are to be applied subject to the provisions of any applicable written law.  This is a consequence of the constitutional doctrine of parliamentary supremacy and the fact that written laws are made by parliament, either directly or indirectly.

 

When it is said that an unwritten law is applied subject to a written law it does not mean that a written law is more important than an unwritten law.  It only means that if any rule of unwritten law (for example, a rule of African customary law) is in conflict with a clause in a written law, the unwritten law will cease to have the force of law from the moment the written law comes into effect.

 

This rule enables Parliament to make new laws to replace existing customs as social conditions change.  It also obviates the possibility of having two conflicting rules of law regarding one factual situation.

 

An unwritten law that is not in conflict with a written law is as binding as any written law and a breach of it renders what has been done as illegal as if the law broken was a written law.

 

THE UNWRITTEN SOURCES OF KENYA LAW

 

Common Law

Common law may be described as that branch of the law of England which was developed by the English courts on the basis of the ancient customs of the English people.  Osborn’s law dictionary defines the common law as “that branch of the law of England formulated, developed and administered by the old common law courts on the basis of the common custom of the country”.

 

It is not the entire common law that is a source of Kenya law but only that portion which the Judicature Act describes as “the substance of the common law”.  This presumably means that the writ system and its complex rules of procedure that were developed by the old common law courts for the administration of the common law do not apply to Kenya.

 

Equity

The word “equity” ordinarily means “fairness” or “justice”.  As a source of Kenya law, the phrase “doctrines of equity” means the body of English law that was developed by the various Lord Chancellors in the Court of Chancery to supplement the rules and procedure of the common law.  The Lord Chancellors developed equity mainly according to the effect produced on their own individual conscience by the facts of the particular case before them.

 

Equity was developed as a result of the defects of the common law.  The following are some of those defects:

 

(a)       The Writ System

A person intending to commence an action at common law had to obtain a ‘writ’ from the government department that was authorized to issue writs.  A writ was a document in the King’s name and under the Seal of Crown commanding the person to whom it was addressed to appear in a specified court to answer the claim made against him by the person at whose request the writ had been issued.  However, there were some injuries for which no writs were available at common law owing to the fact that, at that particular time of the common law’s growth, writs could only be issued in a limited number of cases.  An example is the tort of nuisance affecting one’s enjoyment of land for which no writ existed at the time.  In such cases the injured person could not take the wrongdoer to any of the common law courts and was, as a consequence, left without a remedy for a wrong inflicted.  The Lord Chancellor, in the King’s name, intervened and developed remedies for such injuries.

 

(b)       Procedural Technicalities

The procedure in the common law courts was highly technical and many good causes of action were lost due to procedural technicalities.  For example, if A sued B because of the tresspass of B’s mare and in his writ A described the mare as a stallion, the action would be automatically dismissed.  This led to the urgent craving for a new system of procedure that would dispense justice without undue regard to technicalities.

 

(c)       Delays

Certain standard defences known as “essoins” caused considerable delay before a case could be heard.  For example, the hearing of a case could be automatically postponed for a year and a day if the defendant pleaded sickness as a defence even though the court had not verified the truth of the defence.  The Lord Chancellor generally disallowed these defences and adopted the maxim “delay defeats equity”

 

(d)       Inadequate remedies

The only remedy available at common law for a civil wrong was financial compensation called damages.  This might not be adequate compensation in such cases as breach of contract to sell a piece of land.  However, a common law court could not order the defendant to convey the land to the plaintiff.  The Lord Chancellor intervened and developed the remedy of “specific performance” for such cases.  The Chancellor, in the King’s name would order the defendant to convey the land to the plaintiff.

 

(e)       Non-recognition of trusts

The common law did not recognize “trusts”.  For example if A conveyed property to B “on trust” for C the common law courts could not compel B to use the income from the property for the benefit of C.  The Lord Chancellor intervened in such cases and the overall effect of the intervention was the development of the body of principles and rules which constitute the basis of the current Law of Trusts.  In particular, the Court of Chancery would compel B to use the income from the “trust property” for the benefit of C.

 

It should be noted that equity is “a gloss upon the common law”.  It was developed to supplement the common law but not to supplant it.  It does this by, as it were, filling in the gaps left by the common law and, where appropriate, providing alternative remedies to litigants for whom the remedies available at common law are inadequate.

 

However, the substance of common law and the doctrines of equity are applicable in Kenya only if the circumstances of Kenya and its inhabitants permit and subject to such qualifications or modifications as those circumstances may render necessary.

 

The English Judicature Act 1873 provided that if there is any conflict between common law and equity, equity is to prevail.  However, there is no Kenya statute to that effect.  But since the Act appears to be a statute of general application which was in force in England on 12th August, 1897 it is prima facie applicable to Kenya.  If so, any conflict between a rule of common law and a doctrine of equity that arises in a Kenya Court would be resolved by applying the doctrines of equity.

 

Inadequate protection of borrowers

Rigidity or inflexibility

 

Contributions of Equity

A         (i)    Developed the so called maxims of equity

(ii)   Provided additional remedies

(iii)  Provided for the discovery of documents

(iv)  Enhanced the protection of borrowers.

(v)    Recognized the trust relationship

 

African Customary Law

 

African customary law may be described as the law based on the customs of the ethnic groups which constitute Kenya’s indigenous population.  Section 3(2) of the Judicature Act 1967 provides that 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.

 

These provisions of the Judicature Act may be explained as follows:

 

(a)       Guide

The courts are to be “guided” by African customary law.  This provision gives a judge discretion whether to allow a particular rule of customary law to operate or not.  The judge is not bound by any rule of customary law and may therefore refuse to apply it if, for example, he feels that it is repugnant to justice or morality.

 

(b)       Civil Case

Customary law is applicable only in civil cases.  The District Magistrate’s Court’s Act 1967, S.2 restricts the civil cases to which African customary law may be applied to claims involving any of the following matters only:

 

(i)       land held under customary tenure;

(ii)       marriage, divorce, maintenance or dowry;

(iii)      seduction or pregnancy of an unmarried woman or girl;

(iv)      enticement of, or adultery with, a married woman;

(v)       matters affecting status, particularly the status of women, widows and children, including

guardian-ship, custody, adoption and legitimacy;

(vi)        intestate succession and administration of intestate estates, so far as it is not governed by any

written law.

(c)       Subject to it or affected it

One of the parties must be subject to it or affected by it.  If the plaintiff and the defendant belong to the same ethnic group, they may be said to be “subject” to the customs of that ethnic group which could then be applied to settle the dispute.  For example, a dispute between Kikuyus relating to any of the matters listed in (b) above cannot be settled under Kamba, Luo or any other customary law except Kikuyu customary law.

 

However, if there is a dispute involving parties from different ethnic groups it may be determined according to the customs of either party, since the other party would be “affected” by the custom.

 

(d)       Repugnance to justice and morality

 

The customary law will be applied only if it is not repugnant to justice and morality.

 

In MARIA GISESE ANGOI v MACELLA NYOMENDA (see Civil Appeal No.1 of 1981 being the judgement of Aganyanya J. delivered at Kisii on 24-5-1982) the High Court held that Kisii customary law which allows a widow who has no children or who only has female children to enter into an arrangement with a girl’s parents and take the girl to be her wife and then to choose a man from amongst her late husband’s clan who will be fathering children for her (i.e. the widow), was repugnant to justice because it denied the alleged wife the opportunity of freely choosing her partner.

The Court refused to follow the custom and declared that there had been no marriage between the appellant and the respondent.

 

A rule of customary law that might be declared to be repugnant to morality is the Masai custom that a husband returning home and finding an age-mate’s spear stuck at the entrance to his hut, as a means of informing him that the owner of the spear is at the moment having an affair with his wife and he should not interrupt.  The husband cannot take divorce proceedings under Masai customs against his wife for adultery.  In the event of such a declaration, a Masai man would be able to petition the court for divorce on the ground of the wife’s adultery at common law.

 

Consistent with the written Law

 

Islamic law is the law based on the Holy Koran and the teachings of the Prophet Mohammed as explained in his Sayings called “Hadith”.

 

Islamic law is applicable in Kenya under section 5 of the Kadhi’s Courts Act 1967 when it is necessary to determine questions of Muslim Law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the muslim religion.

Hindu Law

Hindu customary rites are applicable under S.5 of the Hindu Marriage and Divorce Act, 1960.  S.2 of the Act defines a “custom” as “a rule which, having been continuously observed for a long time, has attained the force of law among a community, group or family, being a rule that is certain and not unreasonable, or opposed to public policy; and, in the case of a rule applicable only to a family, has not been discontinued by the family”.  Hindu customary rites are a source of Kenya law only for purposes of solemnizing Hindu marriages.

 

ADMINISTRATION OF THE LAW

 

THE KENYA JUDICIAL SYSTEM

 

The current Kenya judicial system is organized in the form of a pyramid, with the Court of Appeal at the apex, the High Court immediately below it and then the subordinate courts consisting of the Kadhi’s Court, Resident Magistrate’s Court, District   Magistrate’s Court and the Court Martial.  This structure of the courts is based on the Constitution, the Magistrate’s Courts Act 1967 and the Kadhi’s Courts Act 1967.

 

The structure of the Kenya courts may be explained with the aid of the following diagram:

THE COURT OF APPEAL

 

Establishment

The Court of Appeal was established on 28th October, 1977 by Section 64(1) of the constitution which states that ‘there shall be a Court of Appeal which shall be a superior court of record’.

 

Composition

judges of the Court of Appeal shall be the Chief Justice and such number, not being less than two, of the judges of appeal … as may be prescribed by Parliament’.  The Judicature Act, 1967, s.7(2), as amended by the Statute Law (Miscellaneous Amendments) Act, 1986 provides that the number of judges of appeal shall be eight.

 

Jurisdiction

Court of Appeal ‘shall have such jurisdiction and powers in relation to appeals from the High Court as may be conferred on it by law’.

Provides that ‘the Court of Appeal shall have jurisdiction to hear and determine appeals from the High Court in cases in which an appeal lies to the Court of Appeal under any law’.

 

Procedure

The practice and procedure of the Court of Appeal are regulated by Rules of Court made by the Rules Committee constituted under the Appellate Jurisdiction Act.

Provides that an uneven number of at least three judges shall sit for the final determination of an appeal other than the summary dismissal of an appeal.

Where more than one judge sits for the determination by the court on any matter (whether final or otherwise), the decision of the court shall be according to the opinion of a majority of the judges who sat for the purpose of determining that matter.

The Court of Appeal has no original jurisdiction and hears appeals from the High Court only.

 

THE HIGH COURT

 

Establishment

The High Court is established by S.60 (1) of the Constitution which states that ‘there shall be a High Court, which shall be a superior court of record’.

 

Composition

The Constitution provides that the judges of the High Court shall be the Chief Justice and such number, not being less than thirty-two, of other judges as may be prescribed by Parliament.

The Chief Justice is to be appointed by the President while the other judges (known as “puisne judges”) are appointed by the President acting in accordance with the advice of the Judicial Service Commission.

 

Jurisdiction

The High Court shall have ‘unlimited original jurisdiction in civil and criminal matters and such other jurisdiction and powers as may be conferred on it by the constitution or any other law’.

Although the jurisdiction of the High Court is unlimited it will in practice only serve as a trial court for civil cases in which the amount claimed is more than Shs.300,000 and cannot therefore be heard in any Resident Magistrate’s Court.

 

(a)       Interpretation of Constitution

The Constitution provides that where any question as to the interpretation of the constitution arises in any proceedings in any subordinate court, and the court is of the opinion that the question involves a substantial question of law, the court may, and shall if any party to the proceedings so requests, refer the question to the High Court.  For purposes of determining the question referred, it shall be composed of an uneven number of judges, not being less than three.

The decision of the High Court binds the Court that referred the question to the High Court and it must dispose the case in accordance with the High Court’s decision.

(b)       Supervisory Jurisdiction

The High Court has jurisdiction under S.65 (2) of the Constitution to supervise any civil or criminal proceedings before any magistrate’s court or court-martial and can make such orders, issue such writs and give such directions as it may consider appropriate for the purposes of ensuring that justice is duly administered by such court.

 

(c)       Admiralty Jurisdiction

The High Court is constituted a court of admiralty by S.4 of the Judicature Act for the purpose of exercising ‘admiralty jurisdiction in all matters arising on the high seas or in territorial waters, or upon any lake or other navigable inland waters in Kenya’.  The law applicable to such cases is the Admiralty of England as well as ‘international Laws and the comity of nations’.

 

(d)       Presidential and Parliamentary election petitions.

(e)       Enforcement of fundamental rights and freedoms

 

RESIDENT MAGISTRATE’S COURT

Establishment

The Resident Magistrate’s Court is constituted by S.3 (1) of the Magistrate’s Courts Act which provides that ‘there is hereby established the Resident Magistrate’s Court, which shall be a court subordinate to the High Court and shall be duly constituted when held by a Chief Magistrate, a Senior Principal Magistrate, a Principal Magistrate, a Senior Resident Magistrate or a Resident Magistrate’.

 

Civil Jurisdiction

The civil jurisdiction of the Resident Magistrate’s Court was increased by the Statute Law (Miscellaneous Amendments) Acts of 1983, 1986 and 1991 and is as follows:

 

Court Jurisdiction

Court Held by a chief Magistrate, a Senior                             Value of subject matter does not

Principal Magistrate, Principal Magistrate                              exceed Shs. 50,000/-.

No jurisdiction

 

or a Senior Resident Magistrate                                                          under African customary law

 

Court Held by a Resident Magistrate                                      Value of subject matter does not

exceed Shs.25,000/-

Has unlimited Subject-matter

jurisdiction in claims based on

African Customary law

The Chief Justice is empowered, by notice in the Gazette, to increase the limit of jurisdiction of:

 

  • a Chief Magistrate or Senior Principal Magistrate to a sum not exceeding50000/=; and
  • a Principal Magistrate, Senior Resident Magistrate or to a sum not exceeding300,000/=
  • Resident Magistrate not exceeding Ksh 75,000/=

 

Criminal Jurisdiction

The Criminal Procedure Code, as amended by the Statute Law (Miscellaneous Amendments) Act 1986, provides that a subordinate court held by a Chief Magistrate, a Senior Principal Magistrate Principal Magistrate or Senior Resident Magistrate may pass any sentence authorised by law for an offence triable by that court.

DISTRICT MAGISTRATE’S COURT

Establishment

District Magistrate’s Courts are established for each district in Kenya by S.7(1) of the Magistrate’s Courts Act 1967.

 

Constitution

Section 7(1) of the Act provides that a district magistrate’s court ‘shall be duly constituted when held by a district magistrate who has been assigned to the district in question by the Judicial Service Commission’.

 

Territorial Jurisdiction

Section 7(3) of the Act provides that ‘a district magistrate’s court shall have jurisdiction throughout the district in respect of which it is established’.  However, the Chief Justice may, by notice in the Gazette, extend the areas of jurisdiction of a district magistrate by designating any two or more districts a joint district.

 

Criminal Jurisdiction

The Statute Law (Miscellaneous Amendments) Act 1983 amended the criminal jurisdiction of the district magistrate’s courts and imposed the following new limits:

 

Class                                Imprisonment                       Fine                                        Strokes

 

First Class                   7 years                                    Shs.20,000                              24

Second Class               2 years                                    Shs.10,000                              12

Third Class                 1 year                                      Shs. 5,000                              6

 

The criminal jurisdiction of any magistrate may be increased by the Judicial Service Commission by notice in the Gazette.

 

Criminal Appeal

Section 10(1) of the Magistrate’s Courts Act provides that any person who is convicted of an offence on a trial held by a magistrate’s court of the third class may within fourteen days appeal against his conviction or sentence, or both, to the Resident Magistrate’s Court.  There is no right of appeal for a person who pleaded guilty and was convicted on the plea, except as to the legality or extent of the sentence.  Where a person charged with an offence has been acquitted the Attorney General may appeal against the acquittal.

 

Civil Jurisdiction

The civil jurisdiction of the district magistrate’s courts in claims not under customary law was changed by the Statute Law (Miscellaneous Amendments) Act 1983 and are as follows:

 

            District Magistrate   Maximum Claim

 

First Class                               Shs.10,000

Second Class                           Shs. 5,000

Third Class                             Shs. 5,000

 

There is no limit on the amount if the proceedings concern a claim under customary law.

Civil Appeals

S.11 (1) of the Magistrate’s Court Act provides that ‘any person who is aggrieved by an order of a magistrate’s court of the third class made in proceedings of a civil nature may appeal against the order to a magistrate’s court of the first class’.  The appeal must be made within twenty-eight days after the date of order appealed against.

 

KADHI’S COURT

 

Establishment

The Kadhi’s Courts Act, 1967, S.4 (1) as amended by the Statute Law (Miscellaneous Amendments) Act 1986 provides that “in pursuance of section 66(3) of the Constitution there shall be established such number of Kadhi’s Courts as the Chief Justice may, in consultation with the Chief Kadhi, determine”.

 

Territoral Jurisdiction

The Kadhi’s Courts Act, S.4 (2) provides that the Kadhi’s court shall have jurisdiction as follows:

  1. Three courts each have jurisdiction within Kwale District, Mombasa District, Kilifi District and Lamu District.
  2. One court each have jurisdiction within Nyanza Province, Western Province, West Pokot District, Trans Nzoia District, Elgeyo Marakwet District, Laikipia District, Baringo District, Uasin Gishu District, Kericho District, Nakuru District and Nandi District.
  3. One court has jurisdiction within Wajir District and Mndera District.
  4. One court has jurisdiction within the Nairobi area and the Central and Eastern Provinces (except Marsabit and Isiolo District).
  5. One court has jurisdiction in Garrisa District and Tana River District.
  6. One court has jurisdiction in Marsabit District and Isiolo District.

This makes a total of eight Kadhi’s courts.

 

Civil Jurisdiction

Section 65(1) of the Constitution states that ‘the jurisdiction of a Kadhi’s court shall extend to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion.”

 

Criminal Jurisdiction

Kadhi’s Courts have no criminal jurisdiction.

 

COURT-MARTIAL

 

Establishment

Section 65 (1) of the Constitution empowers Parliament to establish court martial which shall have such jurisdiction and powers as may be conferred by any law. Pursuant to this provision, the Armed Forces Act, S.85 (1) provides that ‘a court-martial may be convened by the Chief of General Staff or by the Commander’.  The court-martial is not a permanent court but is convened from time to time to try any person who has committed an offence which, under the Section 84 of the Armed Forces Act, is triable by a court martial.  The court is dissolved as soon as the trial is over.

 

Appeals

Section 115 of the Armed Forces Act allows a person who has been convicted by a court-martial to appeal to the High Court either against the conviction, sentence or both.  The Attorney General may also appeal to the High Court within forty days of an acquittal.

 

S.115 (3) of the Act states that the decision of the High Court on any appeal under the Act shall be final and shall not be subject to further appeal.

 

SPECIAL COURTS

 

There exist in Kenya a number of other institutions which are called “courts” or “tribunals”, but which do not form part of the Kenya judicial system.

They are called “courts” because they exercise judicial or quasi-judicial powers by hearing particular types of disputes or cases.  Technically, however, these institutions are not courts because they do not administer the law.  For example, when a trade union refers a dispute between its members and their employers to the Industrial Court, the Court will settle the dispute by following a procedure which approximates to the procedure followed in a court of law.  This is done primarily as a means of ensuring that each of the parties to the dispute will be satisfied that it has been given a fair opportunity to present its case.  However, if the court decides to award a salary increase for the employees, it would not be applying, or administering, a rule of law.

This is so because there is no legal rule which contains, or provides a mechanism for determining, the salary scales for any class of workers in Kenya.  Additionally, the decision cannot be challenged by recourse to the appellate jurisdiction of any of the courts within the judicial system.  The major examples of such tribunals are:

 

(i)        The Industrial Court;

(ii)       The Rent Tribunal, and

(iii)      The Business Premises Rent Tribunal.

CASE LAW AND JUDICIAL PRECEDENT

“Case law” may be described as the method or way of learning law “through the cases”.  By studying a particular case and the decision therein, we get to know the legal rules relating to the factual situation of the case.  The more cases we learn the more we are “learning the law”.

THE DOCTRINE OF “STARE DECISIS” OR JUDICIAL PRECEDENT

The doctrine of “stare decisis” or “judicial precedent” is a legal rule that requires a judge to refer to earlier cases decided by his predecessors in order to find out if the material facts of any of those cases are similar to the material facts of the case before him and, in the event of such a finding, to decide the case before him in the same way as the earlier case had been decided. In this way, the earlier decision “stays” or “stands” as it was made.

 

The doctrine has been described as the “sacred principle” of English law.  It was developed by the English courts as a mechanism for the administration of justice which would enable judges to make decisions in an objective or standard manner instead of subjectively and in a personalised manner.

 

 “RATIO DECIDENDI”

 

The “ratio decidendi” of a case consists of the material facts of the case and the decision made by the judge on the basis of those facts.  The material facts become, as it were, the basis or “rationale” (ratio) upon which the judge is to decide (decidendi) the case.  They constitute, in ordinary parlance, the reason, or ground, of the judge’s decision and ensure that the decision-making process is a rational one.

The ratio decidendi of a decided case constitutes the legal rule, or principle, for the decision of future cases with similar material facts.  In other words, the decision is a precedent to be followed when deciding such cases.

 

TYPES OF PRECEDENTS

 

(a)   An binding precedent  the judge must follow whether he approves of it or not.  It is binding upon him and excludes his judicial discretion for the future.  These, generally speaking, are decisions of higher courts.

(b)  A persuasive precedent if it is one which the judge is under no obligation to follow but may however take into consideration, or follow, in the course of considering his intended decision.  These, generally speaking, are decisions of lower courts and the decisions of superior courts in the Commonwealth.

 

A precedent may also be classified as:

(i)        An original precedent if it is one which creates and applies a new legal rule; or

(ii)  A declaratory precedent if it is one which does not create a new legal rule but merely applies an existing legal principle.

 

The latter classification is a technical one which does not fall within Hale’s definition of a “declaratory precedent”.  According to Hale, “the decisions of courts of justice (in England)… do not make a law properly so-called: for that only the King and Parliament can do; yet they have a great weight and authority in expounding, declaring, and publishing what the law is”.

 

Salmond however contends that “both at law and in equity, however, the declaratory theory (as formulated by Hale) must be totally rejected if we are to attain to any sound analysis and explanation of the true operation of judicial decisions.  We must admit openly that precedents make law as well as declare it.  We must admit further that this effect is not merely accidental and indirect, the result of judicial error in the interpretation and authoritative declaration of the law.  Doubtless judges have many times altered the law while endeavouring in good faith to declare it.  But we must recognise a distinct law-creating power vested in them and openly and lawfully exercised.  Original precedents are the outcome of the intentional exercise by the courts of their priviledge of developing the law at the same time that they administer it”.

 

OBITER DICTUM

 

A “by the way” statement made by a judge before delivering his judgement with a view to re-enforcing or strengthening his reasons for the decision that he will make is known as the obiter dictumof the case.  If more than one such statements are made, they are known as obiter dicta.  An obiter dictum is defined by Osborne’s Concise Law Dictionary as “an observation by a judge on a legal question suggested by a case before him, but not arising in such a manner as to require decision”.

 

Although an obiter dictum does not constitute a legal rule for the decision of future cases it may constitute a “persuasive precedent” for a relevant later case.  In other words, it may be used by an advocate to “persuade” a judge hearing a case to accept as a legal rule the view it expresses.

 

STARE DECISIS AND ITS APPLICATION BY THE KENYA COURTS

 

There is so far no case decided by the Kenya Court of Appeal regarding the application of “stare decisis” by Kenya Courts.  What we have are the rules which were formulated in 1970 by the then Court of Appeal for East Africa at the time that it was also the Court of Appeal for Kenya.  However, it can be assumed that the rules which the Court of Appeal for East Africa laid down for Kenya Courts in Dodhia v. National & Grindlays Bank are still binding on the Kenya Courts (with the probable exception of the Kenya Court of Appeal)

 

These rules are:

 

(i)        Subordinate courts are bound by the decisions of superior courts.

To understand the full implications of this statement you should have the diagram of the Kenya courts in front of you.

 

(ii)       A subordinate court of appeal should be bound by a previous decision of its own.

Subordinate courts of appeal are the High Court, Resident Magistrate’s Court, Senior Resident Magistrate’s Court, Principal Magistrate’s Court, Senior Principal Magistrate’s Court, the Chief Magistrate’s Court and the First Class District Magistrate’s Court.  These courts are “subordinate” because they have higher courts above them.  However, they are “courts of appeal” because they hear appeals from the courts below them.

 

(iii) As a matter of judicial policy, the final court of appeal, while it would normally regard a previous decision of its own as binding, should be free in both civil and criminal cases to depart from such a previous decision when it appears right to do so.

 

 (a)      Erroneous or improper conviction

in criminal cases, if following the earlier decision would result in an improper conviction;

(b)       Changes in circumstances

if there have been rapid changes in the customs, habits and needs of the people, since the earlier case was decided, so that these changes should be reflected in the decision of the final court of appeal, and

(c)       Per incurriam rule

if it is satisfied that the earlier decision was given “per incuriam”.  The court did not however explain what would constitute a “per incuriam” decision.  However, in MILIANGOS v GEORGE FRANK (TEXTILES) LTD the English House of Lords stated that a decision is only per incuriam where:

 

(i)   the judgment was given in inadvertence to some authority (judge-made, statutory or regulatory) apparently binding in the court giving such judgment, and

(ii)  if the court giving such judgment had been advertent to such authority, it would have decided otherwise than it did (i.e. it would, in fact, have applied the authority)

 

ADVANTAGES OF STARE DECISIS

 

 (i) Certainty and Predictability

The doctrine of stare decisis introduces an element of certainty and uniformity in the administration of justice.

(ii) Flexibility

Because of the freedom that the final Court of Appeal usually has to depart from a previous decision of its own if the social conditions that necessitated such decision no longer exist, there is flexibility in the administration of the law as human societies grow and become more complex

        (iii) Aptitude for growth

The process of ‘distinguishing’ cases facilitates the growth of detailed legal principles to deal with different factual situations.  This would probably not be possible in a purely enacted system of law.

A case is ‘distinguished’ if a judge points out the difference in the material facts of an earlier case and the case before him for decision, as the basis for arriving at a different decision.

        (iv)   Practicality

The case law method has enabled judges to adopt a practical approach to legal problems since such problems have arisen from the practical situations in which the litigants have found themselves.  This practical approach has also enabled judges to make decisions only after being satisfied that the particular decision would not create practical problems for the people subject to the law

  • Rich in detail
  • Consistency and uniformity

 

ADVANTAGES OF STARE DECISIS

 

            (i)        Rigidity

The case law method of administration of justice has been criticized on the grounds that it leads to rigidity, since the discretion of a judge is usually restricted by the rule that he must follow the decision of his predecessors if the material facts of the case to be decided are the same as those of an earlier case.

 

            (ii)       Over-subtlety/Artificiality   

Because a judge is forced, as it were, to follow an earlier case which his conscience may preclude him from following, he might be inclined to ‘distinguish’ the present case from the earlier case.  This artificial ‘distinguishing’ sometimes creates artificial differences which make case law over-subtle.

 

            (iii)      Bulk and Complexity

Because so many cases are being decided everyday by courts all over the country, case law has become bulky and complex and it is doubtful whether judges would really know if a relevant earlier case had been decided, say some ten years ago.

 

(iv) Piece-meal :Rules of law are made in bits and pieces

 

THE LEGAL PROFESSION

Magistrates

A magistrate is an advocate who is appointed by the Judicial Service Commission to the post of –

(a)       District Magistrate, or

(b)       Resident Magistrate.

 

With the passage of time, he may be promoted to the rank of:

  • Senior Resident Magistrate,
  • Principal Magistrate,
  • Senior Principal Magistrate, or
  • Chief Magistrate.

 

Due to historical reasons, a substantial number of the current District Magistrates are “lay magistrates’ who are neither law graduates nor advocates.  However, this situation is likely to be reversed in the near future following the implementation in 1993 of a new scheme of service for Magistrates and Judges.

 

Judges

Generally speaking, judges of the High Court of Kenya are appointed from among advocates of at least seven years’ standing (i.e. those advocates who have been in private practice for at least seven years).  They are called “puisne judges“.

 

All judges are appointed by the president in accordance with the advice of the Judicial Service Commission.

 

Their appointment is already explained in paragraph 1.8.3

 

Qualifications

To qualify for appointment as a judge of the High Court a person must either be:

(a) An advocate of the High Court or

(b) Be or have been a judge of a court with unlimited jurisdiction in civil and criminal matters in some part of the common Wealth or Republic of Ireland.

(c) Or have been a judge of a court with jurisdiction to hear appeals from a court with unlimited jurisdiction in criminal and civil matters in some part of the common Wealth or Republic of Ireland.

 

Under section 63 of the Constitution a judge must take and subscribe the oath of allegiance and any oath as may be prescribed by Parliament, before taking duties.

All judges retire at the age of 74 and enjoy some security of tenure of office.

Under the Constitution a judge can only be removed from office on the ground of

  1. Misbehaviour or,
  2. Inability to discharge the functions of his office.

 

Provided a tribunal appointed by the President has investigated the allegations as a mere of fact and recommended that the judge is suspended from office,     but such suspension ceases to have any effect if the tribunal recommends the judge to remain in office.  However, the suspension becomes permanent if the tribunal recommends that the judge be removed from the office.

 

Judges of Appeal

A “judge of appeal” is a judge who is appointed to the Court of Appeal,

Registrar of the High Court

The Registrar of the High Court is the administrative head of the High Court.  He is assisted in his duties by the Deputy Registrar of the High Court.

 

The CHIEF JUSTICE

The office of the Chief Justice is created by the constitution

Appointment

Under section 61 of the Constitution the Chief Justice is appointed by the President.

 

Functions

  • Administrative Function
    • He is the principal administrative officer of the judiciary
    • He is the chairman of the Judicial Service Commission
    • He determines where the High court sits
    • He appoints the duty judge
    • Assigns cases to judges
    • He is in charge of discipline

 

  • Judicial Function

As a judge of the High Court and court of Appeal he participates in the adjudicatory process.

 

(c)       Legislative Function

He is empowered to make law to facilitate the administration of Justice.

He is empowered to make rules to regulate administration of justice in subordinate cour

He is empowered to make rules to facilitate the enforcement of fundamental rights and freedoms of the individual.

 

(d)       Political function

The chief justice administers the presidential oath to the person who is elected as president.

He represents the judiciary in all state functions.

(e)       Legal education and profession

  • The chief justice is the chairman of the council of legal education.
  • He admits advocates to the ban.
  • He issues practicing certificates to advocates.
  • He appoints commissioners for oath and Notaries Public.

(f)        Enhancement of Jurisdiction of Magistrates

Under the provisions of the magistrate court the Chief Justice is empowered to enhance or increase the civil jurisdiction of the Resident Magistrates Court.

 

HIGH COURT REGISTRARS

These are magistrates who in addition to judicial functions perform administrative duties.  They are appointed by the Judicial Service Commission.  They are administrative and accounting officers.

They assist the Chief Justice in the administration of the judicial department and are answerable to the Chief Justice.  However the High Court Registrar is the custodian of the Roll of Advocates.

KADHI

The chief Kadhi and all Kadhis are appointed by the judicial service commission.

To qualify for appointment one must:

  1. Profess Muslim faith.
  2. Possess such knowledge of Muslim law applicable to any sect of sects of Muslims which in the opinion of the J S C qualify one for appointment.
  3. Kadhis retire at 55 years.
  4. They preside over Kadhis Courts only.

 

Attorney generaL

The Attorney General is appointed by the president.

To qualify for appointment one must be an advocate of the High Court if not less than 5 years standing.

The Attorney General retires at such age as may be prescribed by the parliament.

He enjoys the same security of tenure of office.

He can only be removed for incapacity of misbehaviour provided a tribunal appointed by the president so recommends after investigation of the allegations.

 

Powers of the Attorney General

  • Institute and undertake criminal proceedings against any person before any court other than a court martial for any alleged offence.
  • Take over and continue any criminal proceedings instituted by any other person or body.

(c)   Discontinue as any stage before judgement is delivered any criminal proceedings instituted or undertaken by himself or any other person or body, by entering the so called Nolle Prosecuice “I refuse to prosecute”

(d)  Order the commissioner of police to investigate any alleged or suspected criminal acts.  The commissioner must oblige and report to the Attorney General.

 

Functions

  • Under sec 26( 2) the Attorney General is the principal legal adviser to the government of Kenya
  • He occupies a ministerial post in the cabinet
  • Must act independently in the discharge of his duties
  • Drafts all government bills
  • He is an ex-officio member of the National Assembly
  • Represents the state in all cases
  • He is a public prosecutor
  • Most senior lawyer (head of the bar)
  • Services legal needs of other government departments
  • Member of the judicial service commission
  • Member of the Advisory Committee on prerogative of mercy

Advocates

An advocate is a person whose name has been duly entered as an advocate in the Roll of Advocate.

An advocate has also been defined as a person who has been admitted as such by the Chief Justice.  The law relating to Advocacy is contained in the Advocates Act.

Qualifications

To qualify for admission as an advocate one must

  1. Be a Kenyan citizen
  2. Possess a law degree from a recognized university
  3. Satisfy the council of Legal Education Examination Requirements.

 

Procedure for Admission

  • A person must make a formal petition to the chief justice through the registrar of high court.
  • A copy of the petition must be delivered to the council of legal Education.
  • A notice of the petition must also be given. The petition must be published in the Kenya Gazette.
  • The petition is heard by the Chief Justice and subsequently the petitioner takes the oath of office and signs the role of advocates.

 

To practise law one must have a practicing certificate.

 

Duties of an Advocate

  • Duty to the Court

As an officer of the court an advocate is bound to assist in the administration of justice.  He must advice evidence, the law correctly each time he appears before the court.

  • Duty to Client

He is bound to urge his clients’ case in the best manner possible.  He owes a legal duty of care to the client and is liable in damages for professional negligence.

  • Duty to the Profession

He is bound to maintain the highest possible standard of conduct and integrity by obedience to the law and ethics of the profession.

  • Duty to the Society

As a member of the society he is bound to take part in its social and political and economic development.

 

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LAW OF TORT NOTES

LAW OF TORT

Introduction

Tort is a civil wrong which according to Sir F. Pollock defined 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 person relationship or contract and which is either contrary to the law, or an omission of a specific legal duty, or violation of an absolute right.

  1. Prof. P. H. Winfield, Tortious Liability arises from breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressable by an action for unliquidated damages.
  2. Sir John Salmond defined Tort as a civil wrong for which the remedy is common law action for unliquidated damages and which is not exclusively the breach of contract or the breach of trust or other merely equitable obligation.

From the definition we can conclude the following characteristics about tort

  1. Tort is a private wrong, which infringes the legal right of an individual or specific group of individuals.
  2. The person, who commits tort is called “tort-feasor” or “Wrong doer”
  3. Tort litigation is compoundable i.e. the plaintiff can withdraw the suit filed by him.
  4. Tort is a species of civil wrong.
  5. Tort is other than a breach of contract
  6. The remedy in tort is unliquidated damages or other equitable relief to the injured.

Note; Liquidated damages should be distinguished from unliquidated damages.

Liquidated damages- this is a specified amount of compensation. The law is usually clear on what the liable party pays or the parties themselves have already agreed to the compensation Unliquidated damages- this kind of compensation is unspecified and the court will rely on the nature of the case to determine it.

 

NATURE OF TORT

This liability arises once there is a breach of duty which is primarily fixed by the law.

Generally the plaintiff has to prove that he suffered harm and there was violation of his legal rights. Some actions, however, are actionable per se, i.e, without proof of injury, e.g. trespass to land.

The liability and remedy of a party in torts will depend on the following general principles

  1. Damnum sine injuria (harm without legal injury)

This basically means the causing of damage without the violation of a legal right. Such a case is not a valid claim in the court of law. The fact that the man is injured by another man’s act does not by itself constitute a cause of action; this may be even if the injury causing act is intentional or deliberate. A violation of the legal right is required in order for a valid cause of legal action to exist.

In mogul steamship company v.mc Gregory gow and company , where a number of steamship companies conspired and drove another tea-carrier company out of business by offering lesser rates. Even though the plaintiff was financially injured, the House of Lords ruled that the other companies were entitled to indulge in such competitive practices and therefore there was no cause of action.

  1. injuria sine damnum (legal injuries without actual harm)

This refers to a situation where one suffers a violation of his legal rights without actual injury or damage, e.g. trespass to land in such instance the person is entitled to remedy. In Ashbay Vs. White, the defendant, a returning officer at a voting booth, wrongfully refused to register a duly tendered vote of the plaintiff, who was a qualified voter. The candidate for whom the vote was sought to be tendered was elected. So no loss was suffered by the plaintiff for rejection of his vote. The Court held that violation of the plaintiff’s right was an injury to him for which he must have a remedy without proof of actual damage.

Tortious liability can also be determined on the basis of the fault principles. In this case it is necessary to establish some fault on the part of the wrongdoer before he can be made liable. Fault principle is determined in three ways;

  • Intention– where one does a wrongful act intending the consequences
  • Recklessness– doing an act without regarding the consequences
  • Negligence– this is doing something that a reasonable person would not do, or omitting an action that a reasonable person would do.

 

GENERAL DEFENSES IN TORTS

If one sues the other claiming that the other person has violated his rights and in so doing has committed a tort, then certain defenses are available to the defendant. The extent to which they apply against different torts, may, however, differ. Some of the defenses which can be used in torts are:

  1. Volenti non Fit Injuria
  2. Inevitable Accident
  3. Act of God
  4. Self-defence
  5. Necessity
  6. Statutory Authority
  7. Volenti Non Fit Injuria

This refers to voluntary taking of a risk’. It’s when a person chooses to be in the situation that causes the injury. For example, suppose you are a spectator at a cricket match , the batsman hits a six, and the ball lands on your head, then you cannot claim for compensation either from the stadium authorities or the batsman because when you took a seat in the stadium, you accepted the risks while sitting in the stadium. Therefore if the defendant can prove that the plaintiff voluntarily put himself in that situation, he can escape liability. The most important thing to remember is that the action must be voluntary i.e. with the informed consent of the relevant person.

There are two things which should be established in order to use this defense.

  1. a) That the plaintiff knew or could have expected the risks involved in such a situation.
  2. b) That the person agreed by a statement or conduct, to suffer the consequence of the risk without force or compulsion or threat.
  3. Inevitable accident

When an injury is caused to a person by an event that could not be foreseen and avoided despite reasonable care on the part of the defendant, the defense of inevitable accident can be used. For instance, by „inevitable’ it is not meant that the accident was bound to happen, but rather, that the accident could not have been avoided despite reasonable care.

Stanley v. Powell, (1891)

The plaintiff was employed to carry cartridges for a shooting party. A member of the party fired at a pheasant but the bullet, after hitting a tree, rebounded into the plaintiff’s eye. The plaintiff sued. Held: the defendant was not liable as the plaintiff’s injury resulted from an inevitable accident.

  1. Act of God

This defense is similar to the defense of inevitable accident according to me. The only difference is that in the defense of Act of God the accident happens to occur because of unforeseen natural event. The requirements which are to be satisfied are

(a) The injury most be caused by the effect of natural forces

(b) The natural forces must be unforeseen, or the effects must be unavoidable.

So even if a natural event like a storm is taking place, if one can take precautions and avoid the damage, the defense cannot be used.

Nichols v. Marsland, (1876)

The defendant had a number of artificial lakes on his land. An unprecedented rain such as had never been witnessed in living memory caused the banks of the lakes to burst and the escaping water carried away four bridges belonging to the plaintiff’s were swept by act of God and the defendant was not liable.

  1. Self defense

If one injures someone, or something that belongs to someone else, while defending self or own property, then one can be excused if the force used to protect self was reasonable. For instance, if someone punches you on stomach and you shoot him that would be an excessive use of force which is not necessary for defending yourself.

The following must be satisfied in order to claim this defense:

  1. The defendant must be under threat or under attack
  2. The defense must be for self-defense and not for revenge
  3. The response must be proportional to the attack or threat.

The principle for this is that the law will not hold you responsible for an action that you performed in order to save or protect yourself. If, however, it was not necessary to use force for protection, the law will not protect, and you can’t use this defense.

  1. Mistake

Mistake is not usually a defense in tort law. It’s not good enough to say that you didn’t know you were doing something wrong. This defense can be used in case of malicious Prosecution. In malicious prosecution it must be shown that the prosecution was acting with malice.

  1. Necessity

In necessity, you have to show that the act you did was necessary in the circumstances. For instance, if one enters someone’s private land in order to collect water from his well to put out a fire in his house, that the person was prompted by necessity and the defense could be used in tort claim and it could be used against trespass of property. The level of necessity should be very high. Basically the wrong done should be smaller in comparison to the importance of right done.

Cope v. Sharpe (1912)

The defendant committed certain acts of trespass on the plaintiff’s land in order to prevent fire from spreading to his master’s land. The fire never in fact caused the damage and would not have done so even if the defendant had not taken the precautions he took. But the danger of the fire spreading to the master’s land was real and imminent. Held: The defendant was not liable as the risk to his master’s property was real and imminent and a reasonable person in his position would have done what the defendant did. In view of the difficulty posed by the above defence, it is not advisable for a defendant to rely solely on it, especially where there are other defences. It is safer to plead it as an alternative to another defence.

  1. Act under Statutory Authority

This defense is valid if the act done was under the authority of some statute. For example, if there is a railway line near your house and the noises of the train passing disturbs then you have no remedy because the construction and the use of the railway is authorized under a statute. However, this does not give the authorities the license to do what they want unnecessarily; they must act in a reasonable manner.

Voughan v. Taff Vale Railway Co. (1860)

A railway Company was authorized by statute to run a railway which traversed the

Plaintiff’s land. Sparks from the engine set fire to the plaintiff’s woods.

Held: that the railway company was not liable. It had taken all know care to prevent emission of sparks. The running of locomotives was statutorily authorized.

 

CAPACITY TO SUE OR BE SUED IN TORT

The general rule is that any person may sue or be sued in tort. All persons are subject to the same laws. However, some special rules apply in certain circumstances which restrict, forbid or qualify the right to sue or be sued. It means certain persons cannot sue, while some other persons cannot be sued.

Capacity means the capacity of parties or persons to sue or to be sued in law of torts. The capacity of various persons in the law of torts is explained as under:

  1. The Government

The Government Proceedings Act (Cap 40) makes the Government subject to liabilities in tort as if it were a private person mf full age and capacity. Section 4 (1) of this Act provides that the Government is liable.

  1. in respect of torts committed by its servants or agents;
  2. in respect of any breach of those dutie3 which a person owes to his servants or agents at common law by reason of being their employer; and
  3. In respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property.
  4. The Government is also liable for statuary torts i.e. torts arising from breach of a duty imposed by statute. However, the Government is not liable for anything done by any person when discharging any responsibilities of a judicial process (Sec. 4 (5).The Government is not also liable for torts committed by public officers who are appointed and paid by local authorities, or members of public corporations like Kenya Railways, Maize and Produce Board of Kenya e.t.c.
  5. Infants and Minors

At a general rule minority is no defense in tort. Infants can sue and `e sued in the same way as any other person. However, the age of an infant may be relevant in some torts where intentions, malice, or negligence of the wrongdoer are the main cause of the tort. In the case of negligence, the infant may not have reached the stage of mental development where it could be said that he should be found legally responsible for his negligent acts. A child may be also guilty of negligence if old enough to take precautions for his own safety.

  1. Husband and Wife

A married woman is liable in tort and may sue or be sued in tort in the same way as though she were a female sole (i.e. a single of unmarried woman). A wife can sue her husband in tort for the protection of her own property.

  1. The President

The Constitution of Kenya (Kenya 14) provides that the President of Kenya is not “liable to any proceedings whatsoever in any court.”It means that no civil or criminal proceedings can be instituted against the President while he is in office.

  1. Heads of State and Diplomats

The Heads of foreign states, diplomats of foreign missions and certain other persons connected to them are immune from the jurisdiction of the local courts. Their immunity is provided by the Vienna Convention of Diplomatic Relations, signed in 1961, the relevant articles of which are given the force of law in Kenya by “The Privileges and Immunities

Act (cap. 179)”. The accredited diplomats and their staff families enjoy immunity from the criminal and (subject to specified exceptions) from the civil and administrative jurisdiction of the local courts. The immunity does not extend to Kenyans who are employed by diplomatic missions. Representatives of the United Nations Organization and its specialized agencies can also claim diplomatic immunity. Although the diplomats and their staff cannot be sued under the law of tort but it is always open to the Ministry of Foreign Affairs to declare a diplomat ‘persona non grata’, thereby requiring his removal from Kenya.

  1. Corporations

The corporations can sue and be sued in their own names. They are liable to actions in tort. A corporation is also liable for torts committed by its servants and agents. But if a servant of a corporation commits a tort which is ‘ultra vires’ (beyond powers) then the corporation is not liable. Similarly, a corporation is not liable for some torts of personal nature e.g. personal defamation, battery e.t.c.

  1. Trade Unions

The trade unions have capacity to sue in tort but actions against them in tort are limited.

Section 23 of the Trade Unions Act (Cap. 233) provides that no action shall be brought against a trade union for torts committed by its members or officials in respect of any act done in contemplation or in furtherance of a trade dispute. For example, if a trade union calls a strike, it cannot be sued by an employer for the tort of inducing a breach of contract.

  1. Persons of Unsound Mind

These are generally liable in tort unless intent is a necessary element and their condition is such that they could not have formed such intent.

  1. Aliens or Non-Citizens

An alien is under no disability and can sue and be sued. However an enemy alien cannot sue, but if sued can defend himself.

  1. Judicial officers

Judicial officers are protected from civil liability for any act done or ordered by them in the discharge of their judicial functions. Thus, where a judge or magistrate utters words which tend to reflect on a person’s reputation, or orders a party’s property to be attached in satisfaction of a judgment-debt, no action can respectively be brought against him for trespass. Besides judicial officers, officers of the court are also protected against civil liability for acts done in pursuance of a judicial order or warrant. This means that a court broker cannot be sued for attaching property under a warrant dully issued by court, as long as he acts within the powers conferred on him by the warrant. The protection to judicial officers and officer of court is afforded by the Judicature Act (cap.8) Section 6.

SPECIFIC TORT

There are four specific torts covered by law of tort namely:

  1. Negligence
  2. Defamation
  3. Trespass
  4. Nuisance

 

NEGLIGENCE

This is one of most important torts in law. In Blyth v. Birmingham Waterworks Co.(1856) it was defined as; The omission to do something which a reasonable man, guided upon those consideration which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and a reasonable man would not do.

Elements of negligence

  1. Legal duty of care
  2. Breach of the legal duty of care
  3. Loss or damage to the plaintiff

 

These elements must be in place before the defendant can be liable

Duty of care

This is the duty to take reasonable care to avoid acts or omissions reasonable foreseeable as to likely cause injury to your neighbor, your neighbor being anyone likely to be affect by your actions or omission.

The duty of care principle should fit the three-part test..

  1. It was reasonably foreseeable that a person in the claimant’s position would be injured,
  2. There was sufficient proximity (closeness) between the parties,
  3. It is fair, just and reasonable to impose liability on the defendant.

All parts of the test must be satisfied if there is to be a duty of care owed by the defendant to the claimant. Each part must be explained and proved separately.

Breach of duty of care

This means falling below given standards of care. Standard of care means the standards through which the defendants conduct is measured. Breach of duty is measured objectively by the „reasonable man test‟. The reasonable man is the ordinary person performing the particular task: he is expected to perform it reasonably competently. Thus, when I am driving my car, I am expected to be a reasonably competent driver who can drive a car.

Injury to the plaintiff

Having given proof of the above two the plaintiff still has to prove that he/she suffered some injury before the defendant can be liable for negligence.

There are a number of tests that are used when assessing the injury such as;

The burden of proof in negligence

Generally the burden of proof in civil actions lies with the plaintiff. He has to prove that the defendant owe him a duty of care, that he breached it and this led into suffering. In certain cases however this isn’t so such as in the doctrine of Res ipsa loquitur.

Res ipsa loquitur translate to let the facts speak for themselves. It is applicable in situations where something happens in a way it ought not to have. It is applicable in negligence if;

  1. The thing that caused the injury was in control of the defendant or someone over whom the defendant exercises control
  2. The event wouldn’t have happened without negligence
  3. There is no way of explaining how it happened.

DEFENCES TO NEGLIGENCE

  • Contributory negligence

This defense is available in circumstances in which the plaintiff is also to blame for the loss or injury. The defendant must adduce evidence to establish the plaintiff’s contribution.

The defendant must prove:-

  • That the plaintiff exposed himself to danger.
  • That the plaintiff was at fault or negligent.
  • That the plaintiff’s fault or negligence contributed to his suffering.

Effect of contribution

It reduces the amount of damages recoverable by the plaintiff by the extent of his contribution. However, children of tender years are not guilty of contribution.

  • Voluntary assumption of risk (volenti non fit injuria)

This defense is available in circumstances where the plaintiff with full knowledge of the risk voluntarily agrees to undertake the same. The defendant must prove

  • That the plaintiff had actual knowledge of nature and extent of the risk
  • That the plaintiff agreed to incur the risk voluntarily
  1. Statutory authority

If the conduct complained of by the plaintiff is authorized by statute and the defendant has acted in accordance with the provision of the statute the defendant has a complete defense to the plaintiff’s action.

However whether or not the defense is complete depends on the interpretation of the statute.

NUISANCE

This tort is committed whenever a person is wrongfully disturbed in the use and enjoyment of his land. Generally, it arises from the duties owed by neighboring occupiers of land: no one should use in property in a way which is likely to affect his neighbor’s use of his own land. Thus, if A and B are neighbors, and A owns plot X while B owns plot Y, A may use plot X in any way he chooses but he must not in doing so affect B’s of plot Y, or else he will be liable in nuisance.

Although the tort of nuisance is usually committed only where the plaintiff and defendant are owners or occupiers of land, in certain circumstances the tort may be committed in places like a highway or even a river. There are two types of nuisance: private nuisance and public nuisance.

Private Nuisance

A private nuisance is committed where a person’s private rights in his land are wrongfully disturbed, whether physically or by allowing noxious things to escape out of his land. Thus, it is a nuisance to obstruct an easement or private rights of way; or to allow a weak structure to hang precariously above the plaintiff’s land, thereby creating a potential source of danger to the plaintiff; or to allow smoke, noise, gas, fumes e.t.c. to escape onto the plaintiff’s land thereby inconveniencing him e.t.c.

Public Nuisance:

Public nuisance is also known as common nuisance. It affects the comfort and convenience of a class of persons but not necessarily every member of the public. Thus the obstruction of a highway is a public nuisance, and also a music festival accompanied by large scale noise. It is also a public nuisance to do any act which is a source of danger to the public e.g. releasing a large quantity of petrol onto the highway. In all these cases, it is not the private rights of an individual of the community around or the public at large. From what is stated above, it is clear that it would not be reasonable to allow an individual to bring an action to stop the nuisance. Indeed, a public nuisance is generally a criminal offence and only the Attorney General may bring an action against the wrongdoer. However, in exceptional the person creating such an act of nuisance, if he can prove that he has suffered some special damage over and above that suffered by the general public.

 

Soltan v. De Held, (18510

The plaintiff resided next to a Roman Catholic Chapel. The defendant, a priest, took it upon himself to ring the chapel bell throughout the day and night. The plaintiff brought an action to stop it. Held: The ringing of the bell was a public nuisance but since the plaintiff’s house was next to the chapel he suffered more than the rest of the community and was therefore entitled to bring an action to stop it.

Continuing Wrong:

Generally, nuisance is actionable only when it is a continuing wrong. A disturbance or inconvenience on an isolated occasion will not ordinarily be treated as a nuisance:

The Plaintiff in Nuisance

Since private nuisance generally covers only damage to property to its enjoyment, the plaintiff in an action brought to remedy a nuisance must show that he has title to, or at least some interest in the property which is alleged to have been damaged or whose enjoyment is alleged to have been affected by the nuisance, Otherwise, the action will not succeed.

The Defendant in Nuisance:

The person liable in nuisance is primarily the occupier of the premises which are the source of the nuisance, including a tenant; liability does not necessarily fall on the owner of the premises, although he too may be successfully sued:

Mint V. Good (1951)

A boy of 10 years was walking along a public footpath when the wall collapsed on him and injured him. The defendant, the owner of the premises from which the wall collapsed, had let the premises in question to tenants; but the plaintiff sued the defendant himself. Held: The defendant was liable.

Defences:

  • De Minimis Non Curat Lex (or Triviality);

A person aggrieved by a nuisance can only maintain an action where the damage suffered is so trivial, minor or negligible that no reasonable person would have cause to complain , no such action may be maintained; and if sued the defendant may plead ‘de minimis no curat lex’

  • Reasonable Use of Property:

If the defendant can prove that the nuisance complained of resulted from a reasonable use of his property, but this defense is not available where the defendant’s act is proved to have been motivated by malice.

Note: whether the use to which the property was reasonable in the circumstances is determined from the standpoint of the victim of the nuisance, because the essence of this tort is that no person ought to be wrongfully disturbed in the use and enjoyment of his land.

  • Prescription:

A prescription right to continue a nuisance is acquired after twenty years. Thus, where a nuisance has been committed on the plaintiff’s land form a continuous period of twenty years, the plaintiff cannot thereafter maintain an action in respect of the nuisance; and if he does, the defendant may plead prescription in defense.

  • Public Benefit:

Public benefit, as a defense to an action brought to remedy a nuisance, has only a limited application. Private rights must generally be respected. The only exception is where there is statutory authority to derogate from such rights. But even then there is need to act reasonably and within the statutory limit’ otherwise the person acting will be liable in nuisance, notwithstanding that his act was intended to benefit the public. Thus, where an authority had general powers to provide hospitals and it set up a fever hospital in a heavily populated area, it was held liable to people in the neighborhood (the hospital could have conveniently been set up elsewhere): Metropolitan Asylum District V. Hill (1891).

  • General Defence:

Remedies:

  1. Abatement:

This remedy is by way of self-help. A person aggrieved by a nuisance is at liberty to abate (or stop) it. But the act of abatement must be peaceful and, where feasible, after notice to the tortfeasor, otherwise, by a dramatic turn of events, the aggrieved party might, in attempt to abate nuisance, render himself liable in nuisance instead!

Chrisstle V. Aveyl (1893)

The plaintiff used to conduct music lessons in his rooms, which was adjacent to the defendant’s. The defendant, who was annoyed by the disturbance, continuously banged the partitioning wall so as to disrupt the plaintiff’s music lessons. Held: The plaintiff was entitled to an injunction to restrain the defendant from interrupting the music lessons.

  1. Injunctions:

This is a remedy which is granted to the plaintiff to restrain the defendant from committing the nuisance. It is awarded where the nuisance already exists or is impending.

  • Damages:

By this remedy, the plaintiff is entitled to full compensation in monetary terms, so as to make good the damages caused by the defendant’s nuisance; as far as money can do it. But the plaintiff can only recover what was reasonably foreseeable as likely to result from the defendant’s act. In this connection, regard must be had to the gravity of the nuisance and the extent to which the defendant’s act can be said to have been unreasonable, or wrongful.

 

TRESPASS

Trespass can be understood in the following three contexts or types;

  • Trespass to land
  • Trespass to person
  • Trespass to goods

Trespass isn’t simply the unauthorized entry into someone’s property without permission, such definition limits the term to land and chattel. Trespass, specifically, is a negligent or intentional act made by individual that causes injury to another person or his/her property without lawful justification, no matter how slight. The use of the term “injury” here means a violation of one’s right and not necessarily actual physical harm or loss.

Generally speaking, trespass possesses four elements. These are the following:

  • The fault must be an intentional or negligent act.
  • The harm must be of direct interference with the person or property.
  • The injury is inflicted on the plaintiff or his or her property.
  • There is no lawful justification

TRESPASS TO LAND

This occurs whenever a person’s (plaintiff) possession in land is wrongfully interfered with. The key thing here is possession and not necessarily ownership and as such the plaintiff can be the owner or the tenant. It occurs in three ways;

  1. Trespass by wrongful entering on the plaintiff’s land. E.g, encroaching, walking through the land or putting your hand through their window without their permission
  2. Trespass by remaining on the land, that is, a person who, having been initially authorized to enter upon land, is later asked to leave it and he fails to do so in reasonable time he is said to trespass by remaining on the land.
  • Trespass by placing things on the land.

It’s worth noting that this trespass is different from nuisance in that;

  1. The thing place on the land directly affects the plaintiff’s procession unlike nuisance which affects how they enjoy the property
  2. Nuisance unlike trespass is concerned with enjoyment and not possession
  3. Trespass to land is actionable per se, that is actionable without proof of injury unlike nuisance

Note- each time one repeats a trespass (continuing trespass) the court allows for fresh lawsuit.

DEFENSES TO TRESPASS TO LAND

The main defenses to an action for trespass to land are as under:-

  • Prescription

Land acquired by possession is also said to been acquired by prescription .The new owner may plead title by prescription as a defense to an action brought by previous owner to recover the land. A defendant may also plead prescription, as by proving a right of common grazing or right of way over the Plaintiff’s land.

  • Act of Necessity

The necessity may be pleaded as a defense to an action of trespass to land e.g. entry to put out fire for public safety

  • Statutory Authority

Where the authority is conferred by law, whether by statute or by court order, this is also an available defense e.g. the authority of a court broker

  • Entry by license

An entry authorized or licensed by the plaintiff is not actionable in trespass unless the authority or license given is abused.

REMEDIES TO TRESPASS TO LAND

The remedies in respect of trespass to land include:

  • Damages

The plaintiff may recover monetary compensation from the defendant,

The extent of which depends on the effect of the dependant’s act on the value of the land in question.

  • Ejection

We saw earlier on that a person is entitled to use reasonable force to defend his property. Thus, where a person wrongfully enters or remains on another’s land, he may be ejected using reasonable force may entail liability for assaults an ejectment may also be based on a court order (an eviction order)

  • Action for recovery of land

The plaintiff may bring an action to recover his land from the defendant Where there has been a wrongful dispossession, it is common for such action to be coupled with the above two remedies.

  • Injunction

In addition to the above remedies, an injunction may be obtained to ward off a threatened trespass or to prevent the continuance of an existing one

  • Distress Damage Feasant

In the case of trespass by placing things on land (or in the case of chattle trespass) the

Plaintiff has a right To detain the defendant‘s chattel or animal which is the cause of the trespass in question.

TRESPASS TO THE PERSON

This trespass just like trespass to goods also occurs in three ways;

  • ASSAULT

This occurs when a person intentionally threatens to use force against another person without lawful justification hence putting the person in fear. E.g pointing a gun towards him

Rules of this Tort

  1. There must be some apprehension of contact
  2. There must be a means of carrying out the threat by the defendant
  3. The tort is actionable per se.
  4. The tort is generally associated with battery
  5. Mere words without body movement do not constitute assault.

Assault is constituted by:-

  1. A display or show of force
  2. Pointing of a loaded gun
  • Cursing in a threatening manner
  1. BATTERY

This is the actual use of force towards another person without lawful justification e.g. hitting a person. It is only actionable if it is voluntary or intentional.

Rules of battery

  1. Absence of the plaintiff’s consent
  2. The act is based on an act of the defendant mere obstruction is not battery
  3. A contact caused by an accident over which the defendant has no control is not battery
  4. There must be contact with the person of the plaintiff it has been observed the least touching of another person in anger is battery
  5. Battery must be direct and the conduct must follow from the defendant’s act
  6. The tort is actionable per se. The essence of battery is to protect a person from unpermitted contacts with his body. The principal remedy is monetary award in damages.
  1. FALSE IMPRISONMENT

This occurs when a person is deprived of their freedom without legal explanation, e.g locking someone in a room.

Main ingredients of false imprisonment

(a) Knowledge of the plaintiff

Knowledge of the restraint is not necessary but may affect the quantum of damages.

 (b) Intention and directness

The tort is defined to exclude negligent imprisonment of another person. The tort must be intentional and should be committed directly. Where for reason of lack of intention or directness the plaintiff cannot establish false imprisonment an action in negligence may still be available.

 (c) The restraint must be complete

There must be a total restraint placed upon the plaintiff’s freedom of action

Rules of the tort

  1. The tort must be intentional
  2. It is immaterial that the defendant acted maliciously
  3. The restraint or confinement must be total. However, it need not take place in an enclosed environment
  4. It has been observed every confinement of a person is an imprisonment whether it is in a common prison, private house or in the stocks or even forcibly detaining one in the public
  5. The boundary of the area of confinement is fixed by the defendant. The barriers need not be physical. A restraint affected by the assertion of authority is sufficient.
  6. The imprisonment must be direct and the plaintiff need not have been aware of the restraint
  7. The tort is actionable per se.
  8. The principal remedy is a monetary award in damages.

DEFENCES

  1. A parental Authority

A parent has a right to reasonably chastise or discipline his Children. This means that where a parent beats his child or locks Him up in room for sometime by way of reasonable chastisement, he cannot be sued for battery or false imprisonment .Similarly, if a parent gets a knife and threatens that he will cut off his child’s mouth unless the child stops abusing grown-ups, no action can be brought against him for assault When a child is at school all his parent’s right of ordinary control over him Are delegated to the school authority (or teachers) and are exercised by the Latter in ‘loco parents ‘.Reasonable chastisement by the school authority. e.g Reasonable punishment by teachers ,is not actionable in tort

Note: According to R.v (1891) a husband has no right to chastise

  1. Judicial authority:

An act done under order of court is not actionable as trespass. We show at the beginning of this chapter that acts done in a judicial Capacity are not actionable in tort. It follows that where a judge orders a corporal punishment of a number of strokes, no action for battery can be brought against him or a person administering the strokes .Also, statutory authority may be pleaded as a defense

REMEDIES

  1. Damages:

An award of damages

  • General Defenses the defendant may also rely on the general defenses already considered. Self-defense is a particularly viable defense to assault and battery. Volenti (or the plaintiffs consent), may also be pleaded Thus, a patient who has consented to a medical operation cannot round and sue the surgeon for trespass (battery).Similarly ,a spectator who suffers injury in the cause of a game whose rules are being followed cannot sue for trespass is the most obvious and usual remedy. The amount of damages awarded depends on the circumstance of each case, having regard (or in the case The amount of damages awarded depends on the circumstances of each case, having regard to matters like the injury suffered, the period of false imprisonment e.t.c.
  • ii. Habeas Corpus:

The Writ of Habeas Corpus is a remedy to false imprisonment. The writ directs the person in show custody the applicant is detained to produce him before the High Court; the Court may order his release if it appears that there are not sufficient grounds for detaining him.

PROTECTION OF CHATTELS OR GOODS

Owners of goods are entitled to enjoy their possession and control and their use without any interference. To protect goods the common law developed 3 torts namely;

  • Detinue
  • Trespass to goods
  • Conversion

DETINUE

This is the unlawful detention of goods. It is the oldest tort relating to the protection of the chattels and protects possession of goods by the owner. The plaintiff must prove:-

  1. Right to immediate possession
  2. That the defendant detained the goods after the plaintiff demanded their return. The plaintiff is entitled to damages for the detention.

TRESPASS TO GOODS

This is the intentional or negligent interference of goods in possession of the plaintiff. This tort protects a party interest in goods with regard to retention their physical condition and invariability.

Types/forms of trespass

  1. Taking a chattel out of the possession of another
  2. Moving a chattel
  3. Contact with a chattel
  4. Directing a missile to a chattel

Rules/requirements of the tort

  1. The trespass must be direct
  2. The plaintiff must be in possession of the chattel at the time of interference
  3. The tort is actionable per se
  4. The principal remedy is a monetary award in damages

The defenses available to this tort include:-

  1. Plaintiff’s consent
  2. Necessity
  3. Mistake

CONVERSION

This is the intentional dealing with goods which is seriously inconsistent to possession or right to possession of another person. This tort protects a person’s interest in dominion or control of goods. The plaintiff must have possession or the right to immediate possession. However, a bailee of goods can sue 3rd parties in conversion so cans a licensee or a holder of a lien or a finder. Any good or chattel can be the subject matter of conversion. There must be physical contact resulting in interference with the goods.

Acts of conversion

  • Taking goods or disposing; it has been observed that to take a chattel out by another’s possession is to convert it or seize goods under a legal process without justification is conversion.
  • Destroy or altering
  • Using a person’s goods without consent is to convert them
  • Receiving: the voluntary receipt of another’s goods without consent is conversion.

 

DEFAMATION

This constitutes publication of false statement about a person which ends up lowering the person’s reputation in the estimation of right-thinking members of society, without

justification.

Elements of defamation

  1. The defendant must have made a false statement
  2. The statement must be defamatory, that is, arouse some form of ridicule or contempt from the right thinking members of the society
  3. The statement must refer to the plaintiff
  4. The statement must be made public

Types of defamation

The tort of defamation is of 2 kinds:

  1. a) Libel
  2. b) Slander
  3. Slander

This is a non-permanent form of defamation, usually by word of mouth. This kind of

defamation is actionable upon proof of damage. Though there are some exceptions such as;

  1. Where the statement imputes a criminal offence punished by imprisonment
  2. Where the statement imputes a contagious disease on the plaintiff
  3. Where the statement imputes unchastity on a woman
  4. Where the statement imputes incompetence on the plaintiff in his trade, occupation

or profession

  1. Libel

This is a permanent form of defamation in the sense that the statement is printed or

documented. It is actionable per se, that is, without proof of damage.

Note; defamation made in relation to a group isn’t always actionable e.g all lawyers are

liars. This is different if you say students in school x are liars coz then they can sue

There are however clear differences between Libel and Slander;

  1. Libel is defamation in permanent form whereas Slander is defamation in transient

form.

  1. Libel is not merely actionable as a tort but is also a criminal offence whereas Slander

is a civil wrong only.

  1. All cases of Libel are actionable per se but Slander is only actionable on proof of

actual damage with 4 exceptions under the Defamation Act, which are actionable per se.

CASES OF SLANDER THAT ARE ACTIONABLE PER SE:

  1. Imputation of a Criminal Offence

Where the defendant makes a statement, which imputes a criminal offence punishable with imprisonment under the Penal Code, then such Slander will be actionable per se. There must be a direct imputation of the offence and not merely a suspicion of it and the offence must be punishable by imprisonment in the first instance.

If the Slander goes into details of the offence, it is not actionable per se if the details are inconsistent with another.

  1. Imputation of a contagious or infectious disease

This is actionable per se as it is likely to make other people to shun associating with the

plaintiff. This exception always includes sexually transmitted diseases and in olden times the diseases of plague and leprosy.

  1. Imputation of unfitness, dishonesty or incompetence in any office, profession,

calling, trade or business held or carried on by the plaintiff at the time when the

Slander was published

This is the most important exception under the Defamation Act, 1952 (English) Section2

Provides “in an action of Slander in respect to words calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by him at the time of publication, it shall not be necessary to allege or prove special damage whether or not the words are spoken of the plaintiff in the way of his office, calling, trade or business.”It follows that any words spoken of a man which are reasonably likely to injure him in his office, profession, calling, trade or business will be actionable per se. It matters not how humble the office may be, so long as it is lawful.

  1. Imputation of unchastity or adultery of any woman or girl

Words spoken and published which impute unchastity or adultery to any woman or girl shall not require proof of special damage to render them in actionable.

In Kerr v. Kennedy, the court was of the opinion that the term “unchastity” includes

lesbianism.

Defenses

  1. Justification or pleading that it’s the truth
  2. Fair comment made as a matter of public interest
  3. Absolute privileges- certain statements such as those made by judges in courts are

not actionable since they are said to be absolute privilege

  1. Qualified privilege – when a person who makes the communication has a moral duty

to make it to another person who is interested in hearing it, this is qualified privilege

e.g a preacher call the congregation sinners during a service

  1. Offer of amends or apology

Remedies

  1. Damages
  2. Apology
  3. Injunction to stop it

LIABILITIES IN TORT

There are four types of liabilities in tort namely:

  1. Personal liabilities
  2. Occupiers liability
  3. Vicarious liability
  4. Strict liability

OCCUPIERS’ LIABILITY

Occupiers’ liability generally refers to the duty owed by land/premise owners to those who come onto their land. However, the duty imposed on land/premise owners can extend beyond simple land ownership and in some instances, the landowners may transfer the duty to others, hence the term occupier rather than owner.

The law relating to occupiers’ liability has distinct English origin;

  1. Occupiers‟ liability act 1957- which imposes an obligation on occupiers with regard to ‘lawful visitors’
  2. Occupies‟ liability act 1984- which imposes liability on occupiers with regard to persons other than ‘his visitors’ In Kenya the law relating to this is contained in The Occupiers‟ Liability Act (cap.34)

What is expected of the occupier?

  1. The occupier owes common duty of care to all of his visitors, i.e. “The common duty of care is to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.”
  2. Visitors are persons who have express or implied permission to enter or use the premise of a person. Lawful visitors to whom occupiers owe the common duty of care for the purposes of the Occupiers Liability
    1. Invitees – those who have been invited to come onto the land and therefore have express permission to be there
    2. Licensees – those who have express or implied permission to be there
    3. Those who enter pursuant to a contract – For example paying guests at a hotel or paying visitors to a theatre performance or to see a film at a cinema.
    4. Those entering in exercising a right conferred by law – For example a person entering to read the electricity meters.
  3. The standard of care varies according to the circumstances. The legislation refers to two particular situations where the standard may vary:
    1. An occupier must be prepared for children to be less careful than adults
    2. An occupier may expect that a person in the exercise of his calling will appreciate and guard against any special risks ordinarily incident to it
  4. The occupier is not liable for the negligence of an independent contractor ones he is satisfied that the contractor was competent.
  5. The common duty of care does not impose on an occupier any obligation to a visitor who has willingly accepted a risk.

Can the occupier be liable to persons other than his visitors?

At common law, The Occupiers Liability Act 1984 imposes a duty on occupiers in relation to persons “other than his visitors”. This includes trespassers and those who exceed their permission, though a low level of protection is offered.

The circumstances giving rise to a duty of care

If all three of these are present the occupier owes a duty of care to the non-lawful visitor.

  1. He is aware of a the danger or has reasonable grounds to believe that it exists
  2. He knows or has reasonable grounds to believe the other is in the vicinity of the danger or may come into the vicinity of the danger
  3. The risk is one in which in all the circumstances of the case, he may reasonably be expected to offer the other some protection

Defenses

  1. Volenti non fit injuria- the common duty of care does not impose an obligation on occupiers in respect of risks willingly accepted by the visitor.
  2. Contributory negligence-Damages may be reduced where the visitor fails to take reasonable care for their own safety.
  3. Exclusion of liability-allows an occupier to extend, restrict, exclude or modify his duty to visitors in so far as he is free to do so.
  4. The occupier employed a competent independent contractor

 

VICARIOUS LIABILITY

Generally each person is liable for his or her own torts. There are circumstances however, that another person may be held liable for torts committed by another. This is referred to as vicarious liability. This mostly tend to occur in employment scenarios

The following must exist to establish liability;

  1. There must be a master/servant relationship between the parties concerned
  2. The servant must have been acting in the course of employment at the material

Who exactly is a servant?

Masters/Employers will only be liable for the torts of their employees/servants. They will not usually be liable for the torts of their independent contractors. It is therefore necessary to establish the status of the tortfeasor.

The control test

In this case a servant is defined as someone over whom the master has control over, i.e. someone employed over a contract of service. While an independent contractor is someone who is under a contract for service in which case such a person work using their own judgment?

In Collins v Hertfordshire, Hilbery J said: “The distinction between a contract for services and a contract of service can be summarized in this way: In one case the master can order or require what is to be done, while in the other case he can not only order or require what is to be done, but how it shall be done.”

The nature of the employment test

One accepted view is that people who have a ‘contract of service’ (an employment contract) are employees, but people who have a ‘contract for services’ (a service contract) are independent contractors.

What is “course of employment?”

An acts done under the course of employment where it is proved to have been authorized by the master.

An employer will usually be liable for

  1. Wrongful acts which are actually authorized by him.
  2. Acts which are wrongful ways of doing something authorized by the employer, even if the acts themselves were expressly forbidden by the employer

THE INDEMNITY PRINCIPLE

There is a term implied at common law into contracts of employment that an employee will exercise all reasonable care and skill during the course of employment. An employee who is negligent is in breach of such a term and the employer who has been held vicariously liable for the tort may seek an indemnity from the employee to make good the loss.

 

LIABILITY IN RESPECT OF AN INDEPENDENT CONTRACTOR

The employer is generally not liable for torts committed by an independent contractor. The employer is however liable if he is deemed to have committed the tort.

This may occur in the following instances:

  1. Whether the employer has authorized the commission of the tort

In many circumstances, the law will attribute to a man the conduct of another being, whether human or animal, if he has instigated that conduct. He who instigates or procures another to commit a tort is deemed to have committed the tort himself.

  1. Torts of Strict Liability

The employer is liable in those circumstances e.g. in Rylands-v-Fletcher the employer was held liable for the acts of his independent contractors as this was a case of strict liability. These in torts of strict liability, the employer will be liable even where the tort e.g. the escape is caused by the negligence of an independent contractor.

  1. Negligence

When there is an element of personal negligence on the part of the employer as to make him liable for the acts of an independent contractor. E.g. Where the employer is negligent or careless in employing an independent contractor for instance, where the contractor is incompetent.

Failure to provide precaution in a contract where there is risk of harm unless precaution is taken can make the employer liable for the tort of the contractor.

  1. Where the Duty of Care Is Wide

An example is where the independent contractor is dealing with hazardous circumstances, or works which from their very nature, pose danger to other persons.

GENERAL GUIDELINE IN DETERMINING WHETHER AN ACT WAS

COMMITTED DURING THE COURSE OF EMPLOYMENT

  1. Look at the mode of doing the work the servant is employed to do

In Century Insurance C v. Northern Ireland Road Transport Board, one of the respondent’s employees was delivering petrol to garage. While the petrol was flowing from the lorry to the tank, he lit a cigarette and negligence threw away the lighted match which caused an explosion damages the appellant’s property. The action of the employee was treated as being within the course of employment. On appeal it was held that the respondents were liable for the damage caused for such an action, whilst for the comfort and convenience of the employee could not be treated as isolated act as it was a negligent method of conducting his work.

  1. Whether the act was authorized within the limits of time and space e.g. if one is employed to work between 8.00 a.m. and 5.00 p.m., the master is only liable for torts committed within that time frame.

Ruddiman & Company v. Smith, the plaintiff was using the lower room of the defendant’s House while the defendant used the upper room for carrying on business. In the upper room there was a lavatory. The clerk, after duty, went to the lavatory to wash his hands but on turning on the tap and finding no water, went away without turning the tap off. When water turned on the morning, it overflew into the lower room and damaged the plaintiff goods.

Held: The employer was liable for whether or not the use of the lavatory. Within the scope of the clerk’s employment, it was an event incidental to his employment.

  1. Whether the act was the initiative of the servant or the master had a certain control.

In Warren v. Henlys Ltd, erroneously believing that the plaintiff had to drive away from the garage without paying or surrendering coupons for petrol which had been put in the tank of his car, a petrol pump attendant used violent language to him.

The plaintiff paid his bill and gave the necessary coupons and after calling the police, told the attendant that he would report him to his employers.

The pump attendant then assaulted and injured him. In an action for personal injuries against his employers.

It was held that the defendants were not liable for the wrongful act of their employee. Since the act was one of the personal vengeances and was not done in the course of employment; it not is an act of a class which the employee was authorized to do or a mode of doing an act within that class.

  1. Where there is an express prohibition

An express prohibition does not negate liability i.e. a master does not escape liability simply because he had an express prohibition. For liability to be determined, two factors are considered:

  1. Whether the prohibition limits the sphere of employment. If it does, the master is not liable for an act done outside the sphere. (Sphere).
  2. Where the prohibition deals with the contract within the sphere of employment. If it does, the employer will be liable. (Mode)
  3. Whether the act was a deliberate criminal act

In Lloyd-v-Grace Smith & Co., the plaintiff had sought advice from the defendants, a firm of solicitors, whose managing clerk conducted conveyance work without supervision. He advised the plaintiff to sell some property, fraudulently persuading her to sign certain documents that transferred the property to him. He disposed of it and kept the proceeds. Held: Even though the fraud had not been committed for the benefit of the employers, nevertheless they were liable, for the clerk had been placed in position to carry over such work and had acted throughout in the course of his employment.

This principle is subject to the following exceptions

1) Cases where the employer is under some statutory duty which he cannot delegate

2) Where the employer retains his control on the contractor

3) Where the contract becomes a tort such as nuisance

4) Where the rule in Ryland v Fletcher (1866) applies

 

STRICT LIABILITY

Generally emphasis has been placed by courts on fault based liability. Strict liability is an exception to this principle. This is liability without fault. Where torts are of strict liability there is no need for the plaintiff if to prove fault on the defendant’s part.

It is important to distinguish strict liability from absolute liability. In absolute liability, a particular wrong is actionable without proof of fault and in addition there is no defense availed to the wrongdoer. In strict liability however, the wrongdoer has a number of defense availed to him/her, hence the difference between the two.

Strict liability is clearly brought out in the following case;

Rylands v. Fletcher (1866)

The defendant owned a mill and constructed a reservoir on their land. The reservoir was placed over a disused mine whose passages communicated with the adjoining mine of the plaintiff. The defendant was not aware of this fact and therefore took no precaution against it. Water from the reservoir filtered through to the disused mine shafts and then spread to a working mine owned by the claimant causing extensive damage. Held: The defendants were strictly liable for the damage caused by a non- natural use of land. It was immaterial that there was no fault on their part. The following statement made by Lord Cranworth, explains the rule behind this case; “If a person brings, or accumulates, on his land anything which, if it should escape, may cause damage to his neighbour, he does so at his peril. If it does escape, and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage.” Liability under Rylands v Fletcher is now regarded as a particular type of nuisance. It is a form of strict liability, in that the defendant may be liable in the absence of any negligent conduct on their part. Imposing liability without proof of negligence is controversial and therefore a restrictive approach has been taken with regards to liability under Rylands v Fletcher, It is worth noting that the rule refers to anything likely do mischief, this poses its own challenges.

THE RULE IN RYLANDS v. FLETCHER

Anyone who in the course of non – natural use of his land, accumulates thereon for his own purposes anything likely to do mischief if it escapes is answerable for all direct damage thereby caused. This may be regarded as the “rule in Rylands v. Fletcher’

REQUIREMENTS OF THE RULE IN RYLANDS v. FLETCHER

  1. THE THING

The rule does not require that the thing should both likely to escape and likely to do mischief on escaping. If this were the case, there would be little difference between the rule in Rylands v.Fletcher and negligence. Furthermore, in Rylands v. Fletcher,the thing need not be dangerous in itself. The most harmless objects may cause damage on escape from a person land.

The rule has been applied to a large number of objects including water, gas, electricity,

explosives, oil, vibrations, poisonous leaves of trees, a flag post, a revolving chair at a fair ground, acid smuts from a factory, a car, fire and even at one time gypsies.

  1. ACCUMULATION

The thing must be brought into the land for the defendant’s purposes. The defendant need not own the land into which the thing is brought.

A temporary occupier of land such as a lessee or a person physically present on the land but not in legal occupation of it such as a licensee is equally within the scope of the rule and is liable for damage caused upon escape or a thing he has brought onto the land. The requirement that the thing should be on the land for the purpose of the defendant does not mean that it must benefit the defendant.

Where the thing is naturally present on the defendant cannot be liable for its escape under Rylands-v-Fletcher. The escape of weeds, rocks and floodwater is thus outside the scope of the rule but recent decisions have established possibility of an action in nuisance for such escape.

The accumulation must thus be voluntary.

  1. NON-NATURAL USER OF LAND

This is the most flexible and elusive ingredient of liability. Blackburn J. understood”natural‟ to mean things naturally on the land and not artificially created. However uncertainty crept as a result of Lord Cairns qualification that must be „a non-natural user‟ of the land. Through a series of cases, courts have come to look upon „natural‟ as signifying something which is ordinary and usual even though it might be artificially instead of non-artificial

  1. ESCAPE

There is no liability under the rule unless there is an escape of the substance from the land where it is kept.. The House of Lords defined escape as: “Escape from a place where the defendant had occupation and control over land to a place which is outside his occupation or control.”

It was stated further in this case that Rylands-v-Fletcher is conditioned by 2 elements;

  1. The condition of escape from the land of something likely to do mischief if it escaped.
  2. The condition of non-natural user of the land.The House of Lords emphasized that the absence of an escape was the basis of theirdecision in this case.
  3. DAMAGE

Rylands –v-Fletcher is not actionable per se and therefore there must be proof of actual

damage. This appears to mean actual damage to person or property and it excludes a mere interference with the plaintiff’s enjoyment of this land, such as would be a ground in an action in nuisance. Damage recoverable under the rule is limited to damage to person or property.

Requirement for strict liability to be applicable;

  1. Accumulation on the defendant’s land

The defendant must bring the hazardous material on to his land and keep it there. If the thing is already on the land or is there naturally, no liability will arise under. The thing must be accumulated for the defendant’s own purposes and the thing that escapes need not be the thing accumulated.

  1. A thing likely to do mischief

The thing need not be essentially hazardous, it should only be a thing likely to cause damage if it escapes

  1. No for Escape

There must be an escape from the defendant’s land into the plaintiff. An injury inflicted by the accumulation of a hazardous substance on the land itself will not invoke liability under Rylands v Fletcher.

  1. Non-natural use

The defendant must be using his land in a way that is not ordinary

  1. Remoteness of damage

Liability in Rylands v Fletcher is subject to the rules on remoteness of damage.

Remoteness of damage relates to the requirement that the damage must be of a foreseeable type. Remoteness of damage is often viewed as an additional mechanism of controlling tortious liability. Not every loss will be recoverable in tort law. Originally a defendant was liable for all losses which were a direct consequence of the defendant’s breach of duty. This was largely considered unfair as a defendant could be liable for damage which was not foreseeable and therefore could not take steps to prevent it.

DEFENSES IN RYLAND V FLETCHER

  1. Plaintiffs fault. Where the escape in question resulted from some fault on the part of the plaintiff this may be used as a defense.
  2. Act of stranger – If the escape was caused by the act of a stranger over which the defendant has no control, the defendant will escape liability.
  3. Act of God – An act of God is an event which ‘no human foresight can provide against, and of which human prudence is not bound to recognise the possibility’
  4. Consent/benefit- If the claimant receives a benefit from the thing accumulated, they

may be deemed to have consented to the accumulation:

 

LIMITATION OF ACTIONS

Actions of Contract and Tort and Certain Other Actions

Actions of contract and tort and certain other actions

  1. The following actions may not be brought after the end of 6 years from the date on which the cause of action accrued—
    1. actions founded on contract;
    2. actions to enforce a recognizance;
    3. actions to enforce an award;
    4. actions to recover a sum recoverable by virtue of a written law, other than a penalty or forfeiture or sum by way of penalty or forfeiture;
    5. Actions including actions claiming equitable relief, for which no other period of limitation is provided by this limitations Act or by any other written law.
  2. An action founded on tort may not be brought after the end of 3 years from the date on which the cause of action accrued:
  • Provided that an action for libel or slander may not be brought after the end of 12 months from such date
  1. An action for an account may not be brought in respect of any matter which arose more than 6 years before the commencement of the action.
  2. An action may not be brought upon a judgment after the end of 12 years from the
  3. date on which the judgment was delivered, or (where the judgment or a subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods) the date of the default in making the payment or delivery in question, and no arrears of interest in respect of a judgment debt may be recovered after the expiration of 6 years from the date on which the interest became due.
  • An action to recover any penalty or forfeiture or sum by way of penalty or forfeiture recoverable by virtue of a written law may not be brought after the end of two years from the date on which the cause of action accrued.
  • This section does not apply to a cause of action within the Admiralty jurisdiction of the court which is enforceable in rem, except that (i) above applies to an action to recover seamen’s wages.

Action for contribution from tortfeasor

Where under section 3 of the Law Reform Act (Cap. 26), a tortfeasor (in this section referred to as the first tortfeasor) becomes entitled after the commencement of this Act to a right to recover contribution in respect of any damage from another tortfeasor, an action to recover contribution by virtue of that right shall not be brought after the end of 2 years from the date on which that right accrued to the first tortfeasor.

For the purposes of these rules, the date on which a right to recover contribution in respect of any damage accrues to a tortfeasor shall be ascertained as follows—

  1. if the tortfeasor is held liable in respect of that damage by a judgment given in civil proceedings or by an award, the relevant date is the date on which the judgment is given, or the date of the award, as the case may be;
  2. if, in a case not falling within the above rule, the tortfeasor admits liability in favour of one or more persons in respect of that damage, the relevant date is the earliest date on which the amount to be paid by him in discharge of that liability is agreed by or on behalf of the tortfeasor and that person, or each of those persons, as the case may be, and for the purposes of this subsection no account shall be taken of any judgment or award given or made on appeal in so far as it varies the amount of damages awarded against the tortfeasor.
  3. extension of limitation period in case of disability does not apply to an action by virtue of this section unless the plaintiff proves that the person under the disability was not, at the time when the right to recover contribution accrued to him, in the custody of a parent, and where the section does so apply it shall have effect as if the words “six years” there were replaced by the words “two years”.

Successive conversions and extinction of title to converted goods

Where any cause of action in respect of the conversion or wrongful detention of movable property has accrued to any person and, before he recovers possession of the property, a further conversion or wrongful detention takes place, no action may be brought in respect of the further conversion or detention after the end of three years from the accrual of the cause of action in respect of the original conversion or detention.

Where any such cause of action has accrued to any person and the period of limitation prescribed for an action thereon and for an action in respect of such a further conversion or wrongful detention as aforesaid has expired and he has not during that period recovered possession of the movable property, the title of that person to the property is extinguished.

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LAW OF CONTRACT NOTES

LAW OF CONTRACT

A contract is an agreement between two parties with the intention to create legal relations.

ESSENTIALS ELEMENTS OF A VALID CONTRACT

  1. Offer and acceptance
  2. Consideration
  3. Intention to create legal relations
  4. Capacity of the parties
  5. Lawful objects
  6. Free consent {Vitiating Factors}
  7. Possibility of performance i.e the object of the contract should be something capable of being performed by an ordinary business person
  8. Certainty of terms i.e the wording of the contract must be certain and clear in meaning
  9. Meeting of mind, also known as ‘consensus ad idem’. The two parties must mean and refer to one and the same thing.

TYPES OF CONTRACT

  1. Express and implied contract; -Express contract have a special agreement and terms. It is either in writing or by word of mouth. Implied contract on the other hand, are formed through conduct of the parties. The parties did not formally deliberate and agree on the terms of the contract.
  2. Bilateral and unilateral; -in bilateral contract, both parties are bound to fulfill their obligation in the contract. In unilateral contract, only one party is bound to fulfill obligations in the contract. Eg when one advertises a reward to anyone who may recover a lost property on behalf of the owner. This is a unilateral contract since it is only the advertiser who is bound in it.
  • Executed and executory contract; -an executed contract is one where both parties have fulfilled their obligations completely. In executory contracts, the parties have not fulfilled their obligations at all or have fulfilled them partially.
  1. Simple and speciality contracts; -a simple contract is one that must be evidenced by consideration i.e all simple contract must have a consideration (price paid). A speciality contract is one that does not require consideration as evidence of its existence.

Speciality contracts may include:

  1. Contracts evidenced in writing; -these are contracts where there is a document or memorandum or receipt that shows the existence of contract e.g contracts of sale where amount paid is 200 and above should be evidenced in writing.
  2. Contracts in writing; -these are contracts where fundamental terms must be written down e.g lease, insurance, contract of employment e.t.c.
  3. Contracts under deeds; -these are contracts which must be written down, signed by the parties and sealed e.g contracts of purchase of land, buildings and other immovable properties must be under deeds.
  4. Valid, void and voidable contacts; -a valid contract has all the essential elements, is binding and enforceable. A voidable contract is one that is valid until avoided by the aggrieved parties because of the lack of one or more of the essential elements. A void contract has no legal effects because it lacks fundamental elements of a contract. It is non-existent under the law and cannot be enforced.
  5. Quasi contracts; -these are contracts that come into existence not because of offers and acceptance but out of the prevailing circumstances e.g in a sale or return basis, the buyer will only enter into a contract when he communicates acceptance of goods, retains the goods beyond the given duration or does something to adopt the transaction.
  • Contracts of uberrima fides (utmost good faith) -these are contracts where only one party possesses knowledge of material information regarding the contract and is bound to disclose such information to the other party without concealing anything, ie in perfect good faith.

Contracts are insurance contracts of ‘uberrima fides’

 

FORMATION OF CONTRACTS (essential elements of valid contract explained in details)

ELEMENT NO.1: OFFER

Offer is defined as an expression of willingness to contract on definite terms once accepted. An offer becomes binding on the person making it as soon as it is accepted by the other party.

Distinction between:

  • Offer and invitation treat

An invitation to treat is an inducement to customers to come and make an offer. It is an invitation to negotiate but not an offer. It can take the form of:

  • Invitation to tender -this is an invitation to tender for supply of goods and services
  • Display of goods for sale ie where goods are displayed alongside their price tags.
  • Sale of shares by a public company through prospectus. Prospectus is a notice advertised by a company inviting general public to buy the shares in that company.
  • Issue of travel timetables and passenger tickets.
  • Offer and declaration of intention.

A declaration of intention to do something does not constitute an offer.

  • Offer and mere supply of information

-if a customer request for a quotation and that quotation is sent to him, it does not amount to an offer but is simply supply of a requested information.

Rules of offer

  1. An offer can be made to a specific person, a class of people or to the whole world.
  2. An offer can be expressed or implied.
  • An offer must contemplate giving rise to legal consequences if accepted.
  1. The terms of offer must be certain i.e they should not be vague, ambiguous or loose in expression.
  2. Offer must be communicated to the offeree. Communications of an offer that is posted (through a letter) will take place when the letter is received by the offeree. If letter is lost, there is no offer.
  3. An offer once accepted becomes a contract and cannot be revoked or withdrawn.
  • Conditions may be attached to the offer, but they must be communicated as well.
  • There must be knowledge of offer before acceptance.
  1. An offer cannot bind the other party without his/her consent.
  2. Two identical cross offers do not constitute a contract. Cross offers arise where the parties make identical offers to each other in ignorance of each others offer

Termination of offer

  1. Acceptance

An offer automatically comes to an end once it has been accepted and a contract is created.

  1. Rejection

An offer to a certain person will end when it is expressly rejected by the offeree.

  1. Revocation/withdrawal

An offer will come to an end when it is revoked by the offerer any time before acceptance.

  1. Death/bankruptcy of offerer

Death or bankruptcy of an offerer of personal services will automatically terminate the offer.

  1. Lapse of time

An offer that was open for a specified duration will come to an end at the expiry of the given time.

  1. Failure to meet conditions

Failure to meet conditions attached to an offer will automatically end that offer.

  1. Failure to accept the offer in the manner prescribed

An offer will be terminated if it is not accepted in the prescribed manner or in the usual manner implied in the nature of the offer.

  1. Counter offer

A counter offer is a variation of the original terms of an offer. It will automatically extinguish the original offer.

Types of offers

  • Cross offer -these are simultaneous identical offers made in ignorance of each others offer. EgJohn offers to buy a car worth ksh. 2million from Jane. One week later, Jane offers to sell to john the car at ksh 2 million. This is called cross offer since Jane is ignoring John’s offer.
  • Conditional offer -is an offer whose validity or acceptance is subject to fulfillment of certain given conditions.
  • Counter offer -this is a response to an offer whose effect is to vary terms of the original offer. Eg John offers to buy a car worth ksh. 2million from Jane. One week later, Jane agrees to sell the car to John but at ksh 1.5million. This is called counter offer.
  • Single and standing offers *a single offer is expressed in definite words and its acceptance or rejection will bring it to an end.*a standing offer is one that is not definite or specific in expression but its acceptance will give rise to specific contracts over a duration of time. Eg a tender to supply 500 bags of rice is a single offer while a tender to supply not more than 500 bags of rice may be termed as a standing offer.

 

ELEMENT NO. 2; ACCEPTANCE

This is manifestation of willingness to contract on the terms of offer.

Rules of acceptance

  • Acceptance can be done orally or in writing (expressed) or through conduct (implied).
  • Acceptance is only possible if the offer is still open.
  • Acceptance must be absolute, unconditional and unqualified i.e offer must be accepted exactly in accordance with the terms of offer.
  • Acceptance must be communicated to the offerer.
  • Acceptance must be within a given time or within a reasonable time.
  • Acceptance must be in the manner prescribed.
  • The party accepting must have been aware of the existence of the offer.
  • Acceptance subject to contract is incomplete acceptance.
  • An offer made to a class of people or to a particular person can only be accepted by members of that class or that specified person.

Rules of communication

  • Communication of offer by post takes effect when the letter containing the offer reaches the offeree. If the letter is lost or destroyed, there is no offer.
  • Communication of acceptance by the post is effective when the letter containing the acceptance is posted. This means that loss or destruction of the letter along the way will have no effect on the contract.
  • Communication of revocation of offer becomes effective when the letter is received by the offeree

Exemptions to the rules of communication

  • Where the requirements of communication are waived i.e the offerer does not require the offeree to communicate but to act in a certain manner.
  • Acceptance of unilateral contracts is not required to be communicated but it is enough for the offeree to act accordingly.
  • Where it is ascertained that the offerer was to blame for not receiving communication then the requirement of communication is waived or suspended.
  • Communication to an agent is valid communication.
  • In instantaneous communication, the offer is made there and then and acceptance should also be immediate.

 

ELEMENT NO. 3; CONSIDERATION

Consideration is defined as:

  • The price paid by one party for the promise of another.
  • It is the legal value bargained for and given in exchange for a promise.
  • It is a promise for a promise, something for something situation i.e a status of equality or “quid pro quo”.
  • It is some rights, interests, benefits or profits occurring to one party and some forbearance, loss, detriment or responsibility given, suffered or undertaken by the other party. The benefit accruing and the loss sustained must be in return of a promise.

TYPES OF CONSIDERATION

  • Executed consideration -it is that consideration that has already been given. Also known as present consideration.
  • Executory consideration -it is that which is to be paid in future.
  • Past consideration -it is based on an act that has already been performed. It is a promise made after the contract is formed. Past consideration is not a valid consideration e.g Jane hires a taxi to take her from Nairobi to Thika for ksh. 1500. On arrival she promises to add the driver ksh.500 as a token of appreciation for the service but to be paid at a later date. The ksh.500 is a past consideration and it cannot be enforced in the court of law.

RULES OF CONSIDERATION

Rule 1: Consideration is necessary for all simple contracts

Rule 2: Consideration must be real although it needs not be adequate i.e consideration must be something for value but whether it is enough or not is not a concern of law.

Rule 3: Consideration must not be past.

Reference case: Rascola vs Thomas

R purchased a horse from T. After the sale was complete, T gave the promise that the horse was free from vice, however the horse proved to be full of vice and ungovernable. R sued T for misrepresentation. It was held that the promise that the horse was free from vice was a past consideration which cannot be enforced because the contract had already been concluded.

EXEMPTION TO THE RULE OF PAST CONSIDERATION

A past consideration can be enforced in the following circumstances:

  1. Discharge of a legal duty -where a person has been arrested, his/her lawyer acts to bail him out. If that person later promise to pay, such a consideration is past but it will be enforceable in the court of law. The understanding is that the request for legal services has implied promise to pay.
  2. Negotiable instruments -substitution of a promise to pay cash with a promise to pay through cheques, bills of exchange e.t.c. (negotiable instrument) is a past consideration but it will be enforceable. The understanding is that the promise to give a cheque prevents the other party from going to court to sue for the debt.
  3. Acknowledgment of statute barred debts -the promise to pay a statute barred debt is a past consideration but when it is made in writing, it resurrects the old debt. Statute barred debt is a debt that has stayed for more than six years without being paid or promise to pay being renewed.

Rule 4: Consideration must move from promisor to promisee: 

 This rule is also called the doctrine of privity rule. It states that strangers or 3rd parties cannot be able to enforce a contract that they aren’t party to even if it is for their benefits.

Reference case: Dunlop pneumatic tyre co vs Selfridge

Dunlop ltd was a manufacturer of tyres, it sold tyres to XYZ ltd under a contract where XYZ ltd was not to sell the tyres below Dunlop’s list price. XYZ ltd was also to obtain a similar agreement with other traders to whom he sold tyre. Selfridge bought tyres XYZ ltd and signed an agreement not to sell tyres below Dunlop’s list price. Selfridge broke the agreement and Dunlop sued Selfridge for breach of contract. It was held that the action must fail because there was no contract between Dunlop and Selfridge. In the contract between XYZ ltd and Selfridge, Dunlop was a stranger.

EXEMPTIONS TO THE PRIVITY RULE

  1. Trust schemes -this is a contract where property is entrusted to a trustee by the owner on behalf of a certain beneficiary. This beneficiary is allowed to sue the trustee incase the trustee is misusing property.
  2. Under the road traffic act -in 3rd party motor insurance, a person who has been injured by a vehicle can sue the insurer for compensation even if the contract was between insurance company and owner of the vehicle.
  • Assignment of debts -an assignee of debts may be able to sue the debtor if he is unpaid even if there was no contract between them. An assignee of debts is a person to whom the right to receive payment from a debtor has been transferred to him.

Rule 5: Consideration must be in excess of existing consideration

A person who is under a contractual obligation to perform a certain duty gives no more consideration by fulfilling his obligations. Where consideration already exists, an obligation exists as well. A consideration must be something on top of the existing obligation. This is known as the rule in foakes vs bear.

Reference case: foakes vs bear

Plaintiff obtained a judgment against the defendant for payment of principal amount plus 2090 pounds which included loan interest and cost of the case. The defendant later asked the plaintiff that he pays the principal amount as long as the plaintiff will not demand interest and cost of the case. The plaintiff agreed to this but after payment of principal amount, he sued for the balance of interest and the cost.  It was held that the defendant was under an existing obligation to pay 2090 pounds (interest and cost of case) and he had done nothing to show why he should pay less. The decision in this case is that payment for a lesser sum even if accepted cannot offset a debt of a larger amount.

 

EXEMPTIONS TO THE RULE IN FOAKES VS BEAR

  • The rule in pinnel’s case -it states that payments of lesser sum may offset a debt of a larger amount where:
  • It is paid at an earlier date
  • Paid at due date but a different location
  • It is paid in kind at the creditor’s request
  • Rule in welby vs drake

Payment of a lesser sum to a 3rd party at a creditors request will constitute sufficient consideration for a debt of a larger sum.

  • Compounding/compromise of debts

Where the assets of a debtor are not sufficient to pay all liabilities, creditors agree to receive a lesser proportion of how much there are owed. This is called compromise of debts and is common with companies facing liquidation.

  • Accord and satisfaction

This is where the lender accepts to be paid a lesser sum plus something else in kind and this will offset the whole debt

  • Doctrine of equitable estoppel (promissory estoppel)

If a person conducts himself or makes a statement that is relied upon by the other party to a contract and that party suffers a loss by changing his position. The maker of the statement may be stopped for denying the statement.

This rule protects persons who have incurred losses as a result of relying on verbal statement made on an existing contract.

Reference: central London properties vs high trees.
The plaintiff leased a block of flats for 2500 pounds per annum. Due to Second World War, the tenants were unable to raise the lease charges and they were contemplating terminating the lease contract. The plaintiff verbally offered to accept a reduced rent of 1250 pounds per annum. The resulting agreement was not supported by a fresh consideration. The plaintiff relying on the promise reduced the rent to the tenants to prevent them from vacating the apartment. 5 years later after war ended, the matter went to court and it was held that the promise of the plaintiff to accept reduced rent of 1250 pounds was binding because it made the defendant to reduce rent to the ultimate tenants thus reducing their income. The court also ruled that the full rent of 2500 pounds would now be demanded because war was over and the promise had not been supported by a consideration.

 

CIRCUMSTANCES UNDER WHICH THE DOCTRINE APPLIES
i) There must be an existing contractual relationship.
ii) Plaintiff must make the promise voluntarily.
iii) Plaintiff must have intended to create legal relations by making the promise.
iv) Plaintiff must have intended the defendant to act on the promise.
v) The defendant must have acted on the promise.
vi) Defendant must have suffered a loss by relying on the promise.

Rule 6:  Consideration must be in excess of existing legal duty (public duty)
This rule affects public officers who are going beyond the call of duty to discharge services to individual clients. If they do that, they have given sufficient consideration for which they are allowed to charge. Eg when a police officer is offering security services to individuals such as banks, churches etc, he/she must be paid by such individuals even if government pays the police officer for provision of security to public generally.

Rule 7: When promisee does something beyond his/her duty.

 This is a good consideration even if it is in line with his/her existing duties.


Reference case: Harvey vs paulsby
17 out 36 of crew members deserted the voyage. The remaining crew members were promised extra 40 pounds each to get the ship to its destinations. The owner of the ship later refused to pay the additional 40 pounds claiming that they were discharging their existing obligations. It was held that the 19 crew deserved the 40 pounds extra because they did a job that was to be done by 36. The large number of desertions made the voyage difficult and more dangerous and it fundamentally changed the terms of the original contract.

Rule 8: A promise founded on a third party is a good consideration


Reference: Shadwell vs Shadwell
An uncle wrote to his nephew, “I am glad to hear of your intended marriage to Ann. I promise to give you 150 pounds per annum during my life time as long as your practice income does not exceed 600 per annum”. The plaintiff married Ann but the uncle did not meet his promise. It was held that by marrying Ann, the nephew must have fulfilled something of interest to the uncle and must have materially changed his position to please the uncle. The uncle’s promise was binding even if it was founded on 3rd party.

 

ELEMENT NO. 4;  CAPACITY TO CONTRACT

Capacity is the ability to incur legal obligations and acquire legal rights.
Persons are generally presumed by the law to have the ability to enter into contracts. However, such capacity may be absent or impaired. Capacity may be determined by age, mental or legal status. Different rules apply to minors, bankrupts, drunkards, insane persons and corporation.
(a) Capacity of minors/infants

A minor is a person below the age 18. The law governing contract with minors comprises of two principles:

  1. Minors should be protected from their own incompetence and inexperience.
  2. The law does not intend to cause unnecessary hardships to those dealing with minors.

Contracts with minors may be valid, void or voidable.

Valid contracts with minors

  1. Contracts for necessaries

Necessaries are goods suitable to the condition of a minor into its actual requirements at the time of sale such as basic needs. Infants are generally liable for necessaries supplied to them. It is the responsibility of a supplier to prove that the goods supplied were actually necessaries. An infant is only liable for executed contracts for necessaries but not for executory contracts.

  1. Contracts of service for the infant’s benefit

A beneficial contract of service is one that will help the infant earn a living from his/her skills, education, apprenticeship etc. e.g a music recording contract, sports contract etc

Voidable contracts with minors

These contracts are valid until avoided by the minor before attaining the age of 18 years or within a reasonable time. They include:

  1. Contracts for purchase of shares in a company.
  2. Contracts of lease where there is an obligation to pay rent.
  • Contracts to enter and form a partnership business.

Void contracts with minors

These are contracts that create no liability to the infant. The following contracts with minors are considered void and non-existent:

  1. Contracts for supply of goods other than necessaries.
  2. Contracts for payment of money lent. However, where the money borrowed by the minor was for purchasing necessaries, the loan is still void but the lender is allowed to subrogate himself to a supplier of necessaries and not as a lender. To subrogate is to take the position of another.
  • All trading contracts i.e contracts to supply an infant with goods for the purpose of resale. It is the responsibility of the merchant to ascertain the age of the minor because not knowing the age is not an acceptable defence.

(b) Capacity of drunkards

Contracts for supply of necessaries to a drunkard are valid. Necessaries to a drunkard may include accommodation, food, transport, medical attention e.t.c. however; the drunkard is bound to pay a reasonable price and not necessarily the whole contract price. Other contracts with drunkards are voidable. The drunk is expected to avoid the contract once he/she becomes sober. The right to avoid a contract may be lost with time. The objective of this rule is to prevent persons from taking advantage of others in their state of drunkardness.

(c) Capacity of insane persons

Contracts with insane persons are valid if they are about supplies of food, medical attention e.t.c. other Contracts are voidable at the option of the insane persons. For persons who suffer temporary mental illness, contracts entered into when they are sane are valid unless the insane person can prove that:

  1. At the time of entering the contract he was suffering from mental illness.
  2. The other party knew or ought to have known about the mental illness.

ELEMENT NO. 6; INTENTION TO CREATE LEGAL RELATIONS

A valid contract should have the intention to create legal relations e.g. legal consequences. In practices parties do not direct their attention to these aspects when forming an agreement. To this effect, courts have formulated certain principles that will apply where legal consequences have not been expressed. These are classified into:

  • Domestic and family agreements

Agreements between husband, wife, children, uncles, aunts, cousin’s e.t.c. are considered not to create legal relations except if they constitute a commercial agreement. Where husband and wife are separated, any agreement between them is legally binding.

  • Social agreements

These are agreements between friends and are presumed not to carry any legal consequences except if they constitute commercial agreements.

  • Commercial agreement

These are business contracts and are presumed to have legal consequences unless an agreement to the contrary is expressed.

  • Collective bargaining agreements

These have no legal consequences unless they are in writing and have been registered with the industrial court.

  • Mere advertisement puff

These are opinions and exaggerations by sales men and advertisers and have no legal consequences. They should not be taken literally.

 

ELEMENT NO. 6; TERMS OF A CONTRACT

Terms are rules, requirements and provisions which govern an agreement or a contract. Statements containing terms should be clear, certain and devoid of double meaning. In the process of negotiation, statements made by the parties may be terms or representations. A statement that becomes part of the contracts is a term. These other statements are representation.

The following guidelines are used to distinguish between a term and representation:

  • Superior knowledge: a statement made by a person with superior knowledge about the matter is likely to be a term.
  • Intention of the parties: if the makers of the statement intended to influence the other party, then the statement is a term.
  • Time gap: a statement made before or during formation of a contract is more likely to be a term. A statement made after is a representation.
  • Does the statement preclude further inquiry or verification? If yes, the statement is a term. If no, the statement is a representation.
  • Would the party have entered the contract minus the statement? If no, the statement is a term. If yes the statement is a representation.
  • Was the statement reduced I writing? If yes it is a term, otherwise it is representation.

CONDITIONS AND WARRANTIES

Terms to a contract can further be classified into conditions, warranties or innominate terms;

  1. I) CONDITION

This is a term that goes to the root of the contract. It forms the basis of the formation of a contract. Breach of condition entities the aggrieved party to rescind a contract i.e. set it aside and sue for damages. The party may also decide to affirm (treat as subsisting)

  1. II) WARRANTY

A warranty is a minor term in a contract. It does not go to the root of the contract. Breach of warranty entities the aggrieved party to seek other remedies other than rescission.

Guidelines to distinguish a condition and a warranty

  1. The court will consider the intention of the parties.
  2. The court will examine the contract as a whole in the absence of an express declaration of what is a term and what is a condition.
  • The court will also examine any implied terms by customs or statutes or by the courts.

IMPLIED TERMS

Parties are presumed to have entered into a contract and specified all the terms to govern their agreement. However, it is not always possible that all the terms are specified in the contract. Therefore terms will be implied in contract either by customs, statutes or by court:

  1. a) Implied terms by customs. Parties are presumed to have entered into the contract as per the prevailing customs and traditions.
  2. b) Implied terms by statute. Terms may be implied in a contract by a specific Act of parliament; such terms will always be binding even if there are contrary terms expressed by the parties.
  3. c) Implied terms by court. The court will imply terms in a contract in order to give it business meaning. Terms implied by courts are either facts or law. Terms implied by law are necessary for maintaining a standard behavior e.g under a contract of employment; employees undertake to carry on all lawful duties given by employer. It is implied that employer will not give any unlawful duty.

Terms implied by facts are the obvious and necessary terms to give meaning to a contract.

NOTE: The general rule is that terms should not be implied in written contracts, except in the following circumstances:

III) INNOMINATE TERMS

This are terms that difficult to classify as conditions or warranties until the magnitude of breach is seen and assessed.

EXCLUSION/EXEMPTION CLAUSES

These are clauses that seek to protect a party from liability arising from a contract. The law allows the presence of exemption clauses but it has formulated following rules for their applications;

  1. Fundamental breach -exemption clauses should not amount to fundamental breach of contract.
  2. Privity of contract -it is only the parties to a contract that can enforce the exemption clause. Strangers or 3rd parties cannot rely on them.
  • Misrepresentation -exemption clauses should not amount to a lie or misrepresentation of facts.
  1. Notice of the clause -the exemption clause should be clearly pointed out to the other party for it to be reliable.
  2. Signing of documents -where a party has signed documents, the requirements of notice is deemed to have been fulfilled. A party is assumed to have thoroughly read the document he signed.
  3. Negligence -exemption clauses should not exempt a party from negligent acts.
  • Clear terms –exemption clauses must be expressed clearly.
  • Reasonableness –exemption clauses must be reasonable and should not amount to oppression of the other party because he or she lacks bargaining power.
  1. Incorporation -exemption clauses must have been an integral part of the contract and not an after-thought.
  2. Contract as a whole -the court will interpret the whole contract and not just the exemption clauses in isolation.

ELEMENT NO. 7; VITIATING FACTORS (FREE CONSENT)

These are factors that affect the free consent required in a valid contract. They include:

  1. a) Mistake
  2. b) Misrepresentation
  3. c) Undue influence
  4. d) Duress/ coercion
  5. e) Fraud
  6. f) Illegality
  7. MISTAKE

Mistake is an erroneous belief. It is an error committed in relation to some matter of fact affecting the rights of one of the parties to a contract. It can be categorized into:

  1. Mistake of fact -this is a mistake as to the fundamental part of a contract. Such a mistake is said to be operative i.e it destroys the understanding that form the basis of a contract.
  2. Mistake of law -also referred to as ignorance of law. It is an error in understanding how the law is to be applied to the fact. It is not a valid defense except if it is foreign law or private rights.

Types of mistakes

  1. Common/bilateral mistake

This occurs where both parties make the same mistake without awareness.

 

Forms of common mistake

  • Mistake as to the existence of a subject matter (‘res exincta’) e.g an agreement to buy a cow which unknown to both parties died last night.
  • Mistake as to the existence of a state of affairs e.g parties entering into marriage believing they are single while they are not.
  • Mistake as to the possibility of performance i.e where contract is not capable of being performed by an ordinary person but the parties thought it was possible.
  • Mistake as to the ownership of a thing (‘res sua’) e.g. an agreement to buy some property which unknown to the buyer that property already belongs to him or the property does not even belong to the seller.
  • Mutual mistake

This occurs where both parties mean two different things. A mutual mistake is a mistake as to the identity as to the subject matter. Where a mutual mistake exists there is no ‘consensus ad ideum’ (meeting of the mind)

  1. Unilateral mistake

This occurs where one of the parties is mistaken about some fundamental facts and the other party knows or ought to have known.

Forms of unilateral mistakes:

  1. Mistake as to the identity of the party you are contracting with e.g. when dealing with identical twins.
  2. Mistakes as to the terms of the contract e.g. getting a wrong quotation from the seller and entering the contract without disclosing there is an undercharge.
  3. Documents mistakenly signed. If a person signs a document by mistake and the other party is aware, such a mistake can only be rectified if:
  4. The party made a mistake as to the nature of the document but not the content.
  5. The document was fundamentally different from that which he ought to have signed.
  • He acted with reasonable care by reading the content first.
  1. The signature was induced by fraud.

Remedies to mistake

  1. Rectification -this is where a written contract is corrected by the court.

Conditions necessary for rectification

  1. The parties must have been in final and full agreement prior to the writing of the document.
  2. The intention of the parties must have continued unchanged until the time of rectifying the document.
  • Parties must produce prior evidence to support the agreement.

Rescission

This refers to setting aside a contract. In recession, the parties are returned to their original position as if no contract has been signed.

  • Affirmation

This is where parties agree to move on with the contract even in the presence of a mistake.

  • Refusal of an order of specific performance

This is where the court refuses to issue orders of specific performance because of mistakes.

  • MISREPRESENTATION

This is an untrue statement of facts made by a party with the intention to induce the other party to enter into a contract. It is a false representation which may be in form of words or conducts

Content/characteristics of misrepresentation

  •  It must be a statement of some specific existing facts or past events.

The following statements do not amount to misrepresentations;

  • A statement of opinion unless made by an expert.
  • A statement of future conduct or intention.
  • Advertisement puff
  • The statement must induce the other party.

A statement cannot induce the other party if:

  • That party knew the statement was false.
  • He would have entered the contract in spite of misrepresentation.
  •  The injured party must have relied on the statement misrepresented

Remedies of misrepresentation

  • Damages in tort

A person who makes a dishonest statement is liable under tort for deceit.

  1. Damage in contract

Where a plaintiff has suffered financial loss, he/she can sue for damages to recover their losses.

  1. Refusal of further performances.

A person who discovers misrepresentation can refuse to continue with performance of that contract.

  1. Rescission

This is the right to rescind and set aside a contract and it can be lost if:

  • An innocent third party has acquired the rights in the contracts.
  • The parties cannot be restored to their original position.
  • There has been subsequent affirmation of a contract.
  • Time to rescind a contract has expired.
  • Affirmation

This is where the aggrieved party treats the contracts as subsisting even where there is misrepresentation.

Types of misrepresentation

  • Fraudulent misrepresentation

This is an untrue statement made with knowledge that it is false, carelessly or recklessly without believe it is true

  • Innocent misrepresentation

This is an untrue statement made in innocent believe that it is true and the maker had no means of confirming that it was false.

  • Negligent misstatement

This is untrue statement made without caring whether is true or not ie the maker has both means of capacity of ascertaining its falsity but fails to do so.

  1. UNDUE INFLUENCE

This is where a person takes advantage of another because of inequalities between them. The effect of untrue influence is to lender the contract voidable at the option of aggrieved party. Undue influence is presumed to exist between:

  • Parent and child
  • Doctor and patient
  • Teacher and student
  • Pastor and faithful
  • Lawyer and client

Undue influence cannot be presumed between husband and wife because these are treated as equals in the eyes of the law.

The right to avoid the contract where the undue influence has been present can be lost if:

a) A third party has acquired rights in the contract

b) There was undue delay in rescinding the contract

c) There was subsequent affirmation of the contract.

 

  1. DURESS/COERCION

This refers to the use of violence or threat against the other party or his relatives. It can be exerted by the contracting party or some third party acting under the instruction of the other party. The threat must be calculated to produce fear or loss life or body injury to a person or relative but not goods or property. Threatened criminal proceedings or imprisonment is also a form of duress.

  1. ILLEGALITY

The law relating to illegal contracts is founded on the principle that no action can arise out of an illegal transaction. Illegality of the subject matter renders the contract void.

The following contracts are considered illegal:

  • Contracts contrary to public policy

These are contracts that are inconsistent with the values of a society.

They include:

  1. Contracts leading to corruption of public life.
  2. Contracts interfering with sanctity of marriage e.g. an agreement to enter into marriage and later separate in future or a promise to marry another person when the current spouse dies.
  • Contracts to commit fraud on public revenue.
  1. Contracts in restraint of marriage.
  2. Contracts containing sexually immoral elements.
  3. Marriage brokerage contracts i.e. contracts to introduce a person to another with the view of marriage.
  • Contracts to oust court’s jurisdiction i.e. any contract to deny someone the right to court proceedings.
  • Contracts to break law of a friendly country.
  1. Contracts tending to abuse the legal process.
  2. Contracts involving commission of a legal process wrong i.e. contracts where the object is to criminal or civil wrong

2) Contracts illegal by statutes

This are contracts which some acts of parliament classifies as illegal. They includes:

  1. Betting or wagering contracts.

Whereas betting is not an illegal process, betting contracts are considered illegal and unenforceable.

  1. Contracts in restraint of trade

These are contracts restraining a person from freely exercising his/her lawful profession, trade or business. However, employers are allowed to restrain workers from engaging in competing business during employment or for certain duration after employment. Such restraint is meant to protect trade secrets and business connections. Public servants or workers can also be restrained from tendering for the same government or company they work for. This is to avoid a conflict of interest.

 

ELEMENT NO. 7;   DISCHARGE/TERMINATION OF CONTRACTS

  • PERFORMANCE

This is where both parties have prepared their obligations in full. The performance should be complete, precise and exact. However, a contract could still be discharged even where there is no full performance in the following ways (ways of classifying performance):

  1. Substantial performance

This is where obligations have been fulfilled substantially but there is a defect as to the quality of performance. Payment in this case should be on quantum meruit basis i.e. payment should be proportionate to the work completed.

  1. Partial performance

where only a part of the whole contract has been completed, payment in this case is on quantum meruit basis. However, part performance does not apply to payment of a debt as per the rule in foaks vs bear.

  • Divisible contracts

Where a contract is divisible in units and a party has completed some of the units, payment should be for the completed parts only.

  1. Prevented performance

Where the defended prevents the plaintiff from completing his obligations, the contract is discharged and payment is on quantum meruit basis.

  1. Lapse of time

Failure to perform an obligation on time will discharge that contract and payment will be on quantum meruit basis.

 

  • AGREEMENT OF THE PARTIES

The same way the parties agree to form a contract, they can also agree to terminate it any time. Such an agreement should be in writing and signed. Discharge of a contract by agreement may take the following forms:

  1. Bilateral discharge

This is where the parties agree to discharge a contract either when both have not fulfilled their obligations or have fulfilled them partially.

  1. Unilateral discharge

This is where only one party has the right to surrender the contract because the other party has performed his part completely.

WAYS OF DISCHARGE BY AGREEMENT

  1. Accord and satisfaction

This is where the contract is discharged and a consideration is given.

  1. Novation

This where an existing contract is replaced with a new contract.

  • Deed

This where a party who has not fulfilled his/her obligations is released by the other by way of writing and signing a document.

 

  • FRUSTRATION

This refers to a situation where performance has been mad impossible by factors beyond the control of either party.

Frustration will discharge a contract if:

  • The event frustrating the contract was not contemplated by either party.
  • The event makes the contract fundamentally different from the original one.
  • The contract resulted to a situation where the parties did not wish to be in.
  • Neither of the party was responsible for even frustrating the contract.

Discharge of a contract by frustration may take the following forms:

  • Death or incapacity of either party -this is more so if it was a contract for personal service. General contracts will not be affected.
  • Destruction of the subject matter
  • Changes in law i.e a contract may be legal at the time of formation but may become illegal due to alteration/amendments in law.
  • Frustration of a common venture -where the whole basis of a contract was the occurrence or non-occurrence of an event and that event occurs or doesn’t occur, the contract is discharged through frustration.
  • Government interference -unexpected government interference may cause fundamental changes on circumstances around the contract.

Effects of frustration

  • Frustration discharges a contract as to the future; the contract is not made void from the beginning. Therefore money paid into the future is refundable and any money which was payable into the future ceases to be payable.
  • Some of the money which was paid into the past where obligations have not been fulfilled is recoverable. However, where obligations were fulfilled, such money is not refundable.
  • LAPSE OF TIME

A contract formed for a specific time will be discharged when that time comes to an end. If no time is fixed then the contract will be discharged after a reasonable time.

 

  • OPERATION OF THE LAW

This can take the following forms:

  • Death or incapacitation
  • Bankruptcy -bankrupcy of either party will terminate the original contract and new contract is entered between the trustees of the bankrupt person and the other party.
  • Merger of interests -this is where the interests of the two parties are merged into one party e.g. when a tenant purchases the house owned by the landlord.
  • Material alteration -this is where the contract is materially altered without the consent of the other party e.g. where on employee signed a contract to be paid 50,000 but is paid only 10,000 at the end of the month.

 

  • BREACH OF CONTRACT

It takes the following forms:

  1. Failure to perform -this is where one party fails to meet his/her obligations in a contract.
  2. Renunciation -this arises where one party renounces/denies having any obligation in the contract even before time for performance is due.
  • Self disableness -this is where one party disables himself by making him/herself incapable of fulfilling his obligations e.g. a person promises to marry another but goes ahead and marries someone else.

Remedies for breach of contract

  • Refusal of further performance -this is where the aggrieved party refuses to continue performing his obligations because the other party is in breach.
  • Quantum meruit -this is a claim for the value of work done by a party in respect of the contract.
  • Specific performance-this is an order of the court requiring the party in breach to carry out his/her contractual obligations.
  • Recession -in this case, the aggrieved party is allowed to set aside a contract because of breach of the other party.
  • Rectification -in this case the court will allow the party in breach to rectify the breach and carry on with the contract.
  • Court injunction -this is an order of the court restraining a party from repeating an act breach
  • Restitution -this involves returning the injured party back to the position he/she would have been if the contract had been concluded.
  • Action for agreed sum -in anticipatory breach the contract will always provide for a certain sum payable in the event of breach by either party. The aggrieved party can sue for this amount.
  • Action for damages -in this case the aggrieved party will be awarded unliquidated damages. A claim for damages has two questions:

Remoteness of damages– damages claimed under breach of contract should not be too remote. They should be fair and reasonable to compensate the injury considered as naturally arising or that injury which could have been in contemplation as the probable result of breach.

Measure of damages. The general rule is that the plaintiff should recover his/her actual loss and the court will try to return him to the same position he would have been if the contract was fully performed. The fact that damages are difficult to determine, does not prevent the injured party from being awarded damages. In the assessing damages, the court will take into consideration any inconveniences and annoyances caused to the injured party.

METHODS OF LIMITING DAMAGES

  • Contributory negligence

This is where the other party contributed to the injury he/she suffered. The damages awarded will be his proportionate contribution.

  • Remoteness of damage

The defendant may reduce the damage payable by proving they are too remote.

  • Mitigation

Any act of the defendant which aimed at reducing /mitigating the effect of breach will reduce the amount of damages payable.

Types of damages

  • Unliquidated damages: These are damages that are not known in advance. They will be determined by the court.
  • Liquidated damages: These are damages fixed by the parties in advance.
  • Ordinary/general damages: These are damages to compensate the natural consequences of breach.
  • Special damages: These are damages to cover any inconveniences and annoyances caused to the injured party.
  • Exemplary damages: These are damages meant to punish the wrong doer and determine others from repeating similar breach.
  • Nominal damages: These are damages awarded where the plaintiff has proved breach of contract but did not suffer any actual loss.
  • Contemptuous damages: These are damages awarded against the plaintiff because of bringing a case that has no basis.
  • Penalty clauses: This is a sum agreed in a contract as a security for the performance of the contract such that where a party fails to meet his/her obligations; he will have to part with the stated amount.

 

 

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Cost Accounting Mount Kenya University (MKU) Notes

INTRODUCTION TO COST ACCOUNTING

Purpose The main object of this lesson is to introduce the learner to cost accounting; uses of cost information; cost concepts and the differences between cost accounting and financial accounting Specific Objectives By the end of the lesson the learner should:

  • Define cost accounting
  • Understand the range of information that could be supplied by the cost accounting system.
  • Know the relationships of cost accounting to management accounting and financial accounting
  • Understand how raw data are transformed into information

1.1 Definition of and Scope of Cost Accounting

Cost scouting (commonly) termed “costing” may be defined as: „The establishment of budgets, standard costs and actual costs of operations, activities or products; and the analysis of variances, profitability, or the social use of funds’ The accounting system of any organization is the foundation of the internal financial information system. Management needs a variety of information to plan, to control and to make decisions. Information regarding the financial aspects of performance is provided by the costing system.

An important part of the management task is to ensure that operations, departments, processes and costs are under control and that the organization and its constituent parts are working efficiently towards agreed objectives. Although there are numerous other control systems within an organization, for examples production control, quality control, inventory control, the costing system is the key financial control system and monitors and the results of all activities and all other control systems. The detailed analysis and location of all expenditures, the calculation of job and product costs, the analysis of losses and scrap, the monitoring of labour and departmental efficiency and outputs of the costing system provide a sound basis of information for financial control. Cost accounting and financial accounting

Financial accounting can be defined as: ‘The classification and recording of the monetary transactions of an activity in accordance with established concepts, principles, accounting standards and legal requirements and their presentation, by means of profit and loss account, balance sheets and cash flow statements, during and at the end of accounting period’

Financial accounting originated to fulfil the stewardship function of businesses and this is still an important feature. Most of the external financial aspects of the organization, e.g., dealing with accounts payable and receivables, preparation of final accounts etc., are dealt with by the financial accounting system. Of course internal information is also prepared, but in general it can be said that financial accounting presents a broader, more overall view of the organization with primary emphasis upon classification according to type of transaction rather than the cost and management accounting emphasis on the function, activities, products and processes and on internal planning and control information

 

 

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Cost Accounting Mount Kenya University (MKU) Notes

INTRODUCTION TO COST ACCOUNTING

Purpose The main object of this lesson is to introduce the learner to cost accounting; uses of cost information; cost concepts and the differences between cost accounting and financial accounting Specific Objectives By the end of the lesson the learner should:

  • Define cost accounting
  • Understand the range of information that could be supplied by the cost accounting system.
  • Know the relationships of cost accounting to management accounting and financial accounting
  • Understand how raw data are transformed into information

1.1 Definition of and Scope of Cost Accounting

Cost scouting (commonly) termed “costing” may be defined as: „The establishment of budgets, standard costs and actual costs of operations, activities or products; and the analysis of variances, profitability, or the social use of funds’ The accounting system of any organization is the foundation of the internal financial information system. Management needs a variety of information to plan, to control and to make decisions. Information regarding the financial aspects of performance is provided by the costing system.

An important part of the management task is to ensure that operations, departments, processes and costs are under control and that the organization and its constituent parts are working efficiently towards agreed objectives. Although there are numerous other control systems within an organization, for examples production control, quality control, inventory control, the costing system is the key financial control system and monitors and the results of all activities and all other control systems. The detailed analysis and location of all expenditures, the calculation of job and product costs, the analysis of losses and scrap, the monitoring of labour and departmental efficiency and outputs of the costing system provide a sound basis of information for financial control. Cost accounting and financial accounting

Financial accounting can be defined as: ‘The classification and recording of the monetary transactions of an activity in accordance with established concepts, principles, accounting standards and legal requirements and their presentation, by means of profit and loss account, balance sheets and cash flow statements, during and at the end of accounting period’

Financial accounting originated to fulfil the stewardship function of businesses and this is still an important feature. Most of the external financial aspects of the organization, e.g., dealing with accounts payable and receivables, preparation of final accounts etc., are dealt with by the financial accounting system. Of course internal information is also prepared, but in general it can be said that financial accounting presents a broader, more overall view of the organization with primary emphasis upon classification according to type of transaction rather than the cost and management accounting emphasis on the function, activities, products and processes and on internal planning and control information

 

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PLC, DIVERSIFICATIONS, INNOVATIONS, PRODUCT REENGINEERING NOTES

For the purpose of this chapter, PLC will be taken to mean product life cycle, and product and service will be used interchangeably. Many will be familiar with this timeless model which not only describes the stages in the sales pattern of a product or product category, but also offers some strategic directions for each stage. This model is concerned with the sales pattern & strategic directions for each stage of a product‘s life cycle. It is important to differentiate between a product’s life cycle (home loans), a product category’s life cycle (variable, fixed, no-frill) and a brand’s life cycle (Westpac, St. George‘s, BankWest, ANZ). With matured markets, the life cycle model, for strategic planning, is appropriate at the product category level where one normally finds different categories/variants at different stages of the cycle.

APPLICATION OF THE MODEL
The model can be used for analysis as well as for strategy formulation. We shall examine the former first. The PLC concept attempts to provide managers with an understanding of the characteristics of each stage of the life cycle and, therefore, can be used to predict future sales and profit patterns. Underlying the PLC concept is the theory of diffusion of innovation, which identifies categories of buyers (adopters) of the innovation. By understanding these buyers, marketers can plan for the appropriate target market strategies. The early buyers of a new product are called innovators. The numbers are very small because the new product has to prove itself. If the product is satisfactory, it will attract the next category of buyers, early adopters. Later, mainstream buyers, early and late majority, will start adopting the product. Over time, the market becomes saturated and sales come mainly from product . Eventually, sales decline as new products appear and the original product becomes obsolete. This phenomenon gives rise to the distinct S-shaped pattern of a
typical product life cycle.

The PLC concept provides a framework for developing marketing strategies in each stage of the product life cycle. Bear in mind that these strategies are appropriate for market leaders whose behaviour parallel the industry. Lesser competitors may need different strategies to compete. In some ways, the PLC model can be used as a forecasting or predictive tool. It can enable marketers to forecast the market characteristics of subsequent stages as well as predict the strategies of the leading competitors. This, of course, assumes that the life cycle exhibits the traditional pattern. Later, we will realise that many life cycle patternsare more than traditional, and the stages are of varying duration. In the following section, we shall examine the use of the PLC model both as an analytical tool and as a planning tool. These will be divided into characteristics, objectives, and strategies for each stage of the PLC.

STAGE Characteristics
When the new product is first commercialised, it enters the introduction stage of the life cycle. This stage is characterised by a slow sales growth and profits are usually negative because of the high costs of marketing associated with the introduction. Many buyers are unaware of the product and sales are limited to a category of buyers known as innovators. These buyers tend to be more affluent, venturesome and from upper social classes. Mobile phone innovators include company chief executives, sales representative, and tradespersons. These adopt the product for business use while others may buy it as a status symbol. Regardless, these buyers will be influential. There usually is no or little competition at this stage.

Primary Objectives
The main objective here for the pioneer is market expansion by stimulating primary demand, i.e., demand for the product category. For example, Apple has taken upon itself to market its innovative personal MP3 player. Sony did likewise with its personal stereo, the Walkman, in the late 1970s. The marketing objective at this stage is, therefore, to create product awareness and encourage trial.

Strategic Emphases
With innovators as the target market, the pioneering company would emphasise customer education/trial through advertising and sales promotion; and ―push‖ for trade acceptance (distribution support). The product design and function are usually very basic because of the new technology involved. Price is often cost-based and tends to be very high reflecting the ―newness‖ of the innovation and its associated R&D and marketing costs. Potential competitors, meanwhile, monitor the market closely for signs of customer acceptance.

GROWTH
Characteristics
This stage is characterised by rapidly rising sales as the product receives wide acceptance amongst the early adopters. The innovators, as opinion leaders, serve to ―legitimise‖ the innovation through product use and social interactions. The arrival of major competitors and their combined marketing strategies fuel sales growth and industry profit rises. These events necessitate different marketing objectives.

Primary Objectives
Facing competition, perhaps for the first time, the pioneering company and other leaders will need to maximize their market shares by emphasizing selective demand, i.e., demand for a particular brand. Here, the brand‘s product features and performance are stressed by extensive promotion to both the trade and customers. Stability of market shares of mainstream brands is a characteristic of the next stage, maturity. Therefore, the size of the market share gained in the growth stage will tend to persist in the maturity stage, the longest and most competitive stage of the life cycle. A brand with a small share at the end of the growth stage will find it hard to survive
in the next phase.

Strategic Emphases
The competing brands are priced to penetrate the now mainstream market, both to secure intensive distribution and build customer preference. The target market is broader in demographic terms and the product range, therefore, has to be expanded to cater to the
diverse needs of the market. The companies that enter at this stage of the PLC are often large and formidable competitors with similar access to the core/basic technology. Technological advancement is pursued vigorously for product superiority. This leads to
improvements to a product‘s form and function, i.e., the physical attributes of a product that can be evaluated objectively. Examples include frost-free refrigerators, digital mobile phones, ABS brakes and stereo video cassette recorders.

MATURITY
STAGE
Characteristics
This is, perhaps, the most important turning point of a market. Its potential indefinite duration, together with its dynamism, makes this stage the most difficult to predict or plan for. Consider the digital camera market. In the early days, they were targeted as
a computer multi-media accessory and as a status symbol. Today, they are marketed as a replacement of the conventional film-camera for anyone and everyone. Is the market now still growing or reaching maturity? Technically, a product matures when the market
has been saturated and further sales are mainly from replacements. In other words, most potential customers already have one. Who are these potential customers?

Some indicators of maturity may be helpful to analyze the market:

Sales growth and market saturation — maturity is evident when sales growth declines because the number of potential first-time buyers is decreasing. The market is said to be saturated, or fully penetrated, and sales level is maintained mainly because of replacement purchases.

Lower prices and profitability — oversupply and intense competition force prices to fall resulting in lower industry profitability.

Technological maturity and product parity — the core technology used has matured and this leads to mainstream brands all having similar product form and functions. There are very little physical differences among the competing products‘ key features. Products are usually differentiated on brand name, image and perceived quality, i.e., subjective dimensions.

Buyer knowledge — over time, buyers gain experience in the use and evaluation of the product. They may eventually accept the reality of product parity and will buy on price or convenience (economic-driven buyers) or simply on brand name (status-driven).

Primary Objectives
The main objective for most competitors is market share protection. Because the industry does not recognize the notion of a given market share starting point for each competitor, any marketing strategies can be construed as either offensive or defensive. In
a sense, market share protection is a misnomer. An aggressive competitor can claim that it is merely rebuilding lost market share (on the defence) where, in fact, it could had lost share previously by letting its guard down. Also, pro-competitive legislation may prevent businesses from having too high a market share especially through corporate takeovers. These quasi-monopolists or functional monopolists will always be under the scrutiny of the Trade Practices Commission because of their ability to control the market.

Strategic Emphases
For the reasons mentioned above, it would be difficult to generalize marketing strategies especially for the early maturity stage. The marketing mix strategies adopted in the growth stage tend to persist in the early maturity stage but with greater intensity. However, product strategies would usually involve multi-branding and an increased number of product variants/models to appeal to an even broader market. The intention is to revitalize or prolong the maturity stage through product quality improvements, functional
improvements, or style/design improvements. Recall that this stage can last indefinitely. Strategies in the late maturity/decline stages will be presented in the next section.

DECLINE STAGE
Characteristics
This stage is characterized by declining sales and profits. However, the contributing factors need to be identified and analyzed so that the business can decide on the best course of action. It is important to note that we are not concerned here with the decline stage of a brand‘s life cycle. A brand may decline due to poor marketing, etc. Rather, we are concerned with the fate of the product category‘s decline such as those evident in the case of dialup internet connections, floppy disks, CD players, CRT TV sets, etc.

These products and others have declined because of obsolescence. There are even products or models with planned obsolescence, being replaced with new models. Products become obsolete because of substitutes and forward-planning companies are usually
prepared for with these product substitutes. Buyers of these products are known as laggards. They tend to be older, more conservative and from lower socio-economic backgrounds. Their numbers are usually very small. Competition is less intense as some players are quick to exit the market (industry shake-out).

Primary Objective
Since many businesses may have a sizeable infrastructure investment in the product, e.g., plant and machinery, a quick exit may not be the best solution. The more usual move is to reduce expenditure and milk (harvest) the product. Therefore, the primary objective is to maximize cash or profit generation as quickly as possible. Another option is to maintain in, and dominate, the market when others are exiting—―a big fish in a small pond‖. There are also situations where a business can attempt to revitalize the market to create growth.

Strategic Emphases
Some options are available at this stage.
Exiting the market involves either selling the business (divestment) or liquidating existing assets such as plant and equipment. Sometimes there could be ready overseas buyers for outdated equipment especially for third world or developing countries. This should be seen as a last resort especially when milking or harvesting is not feasible. Harvesting attempts to milk the business of all available profits or cash. This is usually possible when there is still a loyal, but small, group of buyers (laggards) to maintain sufficient sales to generate profits. All marketing and overhead expenses are kept at a bare minimum in order to manage profitability and cash flow. The marketing of typewriters is a classic example.

If exit barriers exist, the business may be motivated to continue business-as-usual. This suggests allowing enough investment to maintain the business and sending a message to the competitors of its determination. An industry shake-out, typical at this stage, will
allow the surviving businesses to reap additional market share and profits from the industry. Of course, depending on the nature of the decline stage, this strategy may not be durable.

Finally, a more positive strategy would be to revitalize the market. This can be achieved by creating new uses for the product (Teflon in paints), targeting new markets (baby shampoo for adults) and product modifications/variants (breakfast cereal redeveloped and
repackaged as snack bars).

CRITIQUE OF THE MODEL
The model is not without its critics. The major criticisms of the concept can be summarized as follows:

External versus internal impact on the life cycle
The model assumes that the pattern of a product or brand‘s life cycle is influenced by the chosen strategies (internal) of the business. There is enough empirical evidence to suggest that many companies fail miserably in meeting forecast sales. We can only conclude that environmental forces (external) can play an important role in shaping the sales pattern of the product or brand.
Consider this. An unexpected turn in the environment may, in the short term, cause the sales of a product to decline. Adhering to the PLC concept a manager may misread it as the decline stage of the product‘s life cycle and act accordingly. Marketing support gets
withdrawn and this will surely kill off the product. This creates a self-fulfilling prophecy that the brand is at the end of its life.

It is, therefore, not clear how much influence a firm‘s strategy has on the life cycle. One way of resolving this argument is to consider whether pattern follows strategy or strategy follows pattern. The former assumes that the chosen strategy is the primary influence on the life cycle pattern. This is typical of proactive companies, which attempt to prolong both the growth and maturity stages through some of the aggressive marketing strategies discussed earlier.

Lesser competitors tend to be more reactive by accepting the pattern as given. They have lesser control over environmental and competitive forces. They respond by adopting strategies appropriate for each stage. In this case, strategy follows pattern.

Other PLC patterns
Not all products or brands exhibit the traditional S-shaped pattern.
Styles are common in clothing, home design and passenger cars. A style such as blue jeans may last for decades, going in and out of vogue. Fads come as quickly as they decline. They have a steep introduction stage followed by a rapid decline and are found in toys and paraphernalia associated with hit movies. Scalloped or staircase life cycles exhibit a series of upward growth-maturity stages. This
occurs when new applications of the product are found, as in nylon, Teflon, and ScotchGuard.

Varying duration
So far it is not surprising to learn that life cycles do not have a fixed pattern and that the duration of each stage varies. Also, it is not always evident when the turning point (from one stage to the next) occurs. Only a sales history can provide the evidence. By
then, it may be too late for strategy development. Within a product category life cycle, the product form and brand life cycles can exhibit contrasting patterns. Brands tend to have the shortest life cycle with the exception of ―classics‖ such as Levi‘s, Colgate, Coca-cola, Hill‘s hoist, Speedo, etc. Product forms are prone to style patterns. Moreover, there may be no clear delineation among product
forms, which could result in a strategic planning nightmare. For example, should prebrush mouth rinses be separate from traditional mouthwashes for analysis and strategy formulation? Should product forms of passenger cars be based on price range, engine
capacity (1.5 litres), body style (sedans), or body types (sports)?

Despite these limitations, the PLC model remains one of the most widely used (and misused or abused) strategic tools. The concept is simple and many of its limitations can be minimised or totally avoided through proper market definition, understanding of
key environmental forces, and careful dealing of exceptions. After all, there is no known model that can predict the dynamic and erratic marketing environment.

DIVERSIFICATION
A diversification strategy involves venturing into a new business to exploit growth opportunities in that area but is a high risk move because of the unfamiliarity with the new business. It makes sense when attractive opportunities are found outside the present
businesses. There are two types of diversification, related and unrelated.

Related Diversification
Here, the new business has some commonalities with the company‘s existing businesses. These typically involve skills and assets (resources) that can be shared for synergy or economies of scale. Related diversification is appropriate when any of the following
dimensions is present:

R&D/technology — Canon‘s photographic and electronic technologies have successfully allowed the company to diversify into photocopiers, video cameras, and printers. SaabScania boasts of its association with passenger cars, trucks, and jet fighters. Even a conglomerate like Pacific-Dunlop has many related businesses. Its tyre, rubber glove, mattress, and, industrial foam and hose businesses are all rubber/latex-based.

Brand image/association — a strong brand name can help launch a new product especially one that will directly benefit from the brand association. Matsushita‘s Panasonic brand now dons its host of consumer electrical and electronic goods. However, its Technics‘ brand is reserved for its upmarket sound systems. Levi‘s was successful when it marketed a range of casual wear but failed in the sportswear
business.

Some brands are so well positioned in a given product category that extending them to other areas can be a disaster. Windex (window cleaners) lost out when the brand was extended to other household cleaners. Xerox failed when it ventured into computers and
so did IBM when it attempted to diversify into photocopiers.

Marketing skills — the marketing functional areas most responsive to synergy are distribution and promotion. Many good products failed due to the lack of adequate distribution and are targets of takeovers. For example, a major pharmaceutical company
may diversify by taking over a failing toiletry company and relaunching the latter‘s brands through its existing distribution channels.
Traditional soft drink producers such as Coca-Cola & Pepsi have diversified into packaged snack foods, mineral water and packaged fruit juices to take advantage of their distribution and mass marketing strengths.

Unrelated Diversification
Unrelated diversification is the seeking of new businesses that have little or no relationship with the company‘s core business. By definition, unrelated diversification has few opportunities to share or exchange skills and assets across businesses. It can be
argued that the motivations for such a strategy are primarily financial. These conglomerates usually have a ―parent‖ known aptly as a holding company. Because some of these conglomerates are so diversified, the holding company or board of directors are so removed from the daily operations of each business. These businesses operate independently and are quick to be sold or new ones acquired depending on some financial criteria.

Common financial criteria include cash flow, ROI, risk spreading, and tax benefits. The text even suggested the enhancement of CEO‘s personal power. Many Japanese conglomerates have ventured into real estate, hotels, golf clubs, casinos, private colleges,

INNOVATION
Innovation is defined as revolutionalizing service delivery in terms of translating new ideas into practice, offering new customer prepositions, and implementing effective organizational change. This change adds value and is driven by one or more of the
following;- transformed inputs, process/technology, habits/behavior or mindsets, experimentation, feedback and responsiveness.
For example, innovation in the public service context has a wide scope which encompasses but is not limited to the following areas:-

  • Innovation in the service delivery chain including systems, processes, operations, concepts, designs and technologies
  • Innovation in the final product/service which is required by the customer
  • Innovation in partnerships, participation and promoting social inclusion
  • Innovation in governance and advancement in democracy
  • Innovation in knowledge/information management and feedback systems
  • Innovation in development of policy, strategy and leadership
  • Innovation in value and legal systems, and corporate culture
  • Innovation in career actualization and staff welfare
  • Innovation in science and its application
  • Innovation in organizational arrangements

Kenya Vision 2030 recognizes that innovation is crucial in making service delivery to the customer more efficient and effective.
Evaluation of innovations
1. Enhancement of customer satisfaction

  • Ability to save time
  • Reduction in cost
  • Handling of feedback
  • Access to service/information
  • Safety and convenience
  • Esteem

2. Enhancement of product or service features

  • Originality
  • Integration (muiltipurpose utility or application)
  • Quality
  • Modification

3. Service delivery processes and systems

  • Automation
  • Partnership arrangements
  • Efficiency
  • Service provider safety
  • Reduction of fatigue
  • Utilization of skills
  • Workplace environment and safety

4. Community impact

  • Effect on vulnerable groups
  • Promotion of equity
  • Social inclusion
  • Social integration

5. Sustainability/Replication

  • On the basis of local resources
  • Evidence of having been instituoalized
  • Simplicity in application and universal appeal.

Note.
Patenting: Individuals, groups or institutions which come up with inventions/innovations have a responsibility to make them legitimate by acquiring patents or copyrights.Innovation is not possible without knowledge. So in this session we will also cover
knowledge management. What is Knowledge? It is important to understand the concept of what is knowledge when looking at Knowledge Based Economies and Knowledge System. Knowledge can be defined as information and skills acquired through experience or education or it is a process of knowing, taking available information and translating it into action.

Knowledge is a valuable resource that holds the potential for sound governance, socioeconomic development and service delivery. Knowledge system is used to understand the process of knowledge and is often equated with ‗culture ‗ or ‗ world view‘, terms that
refer collectively to a society, its way of life and its underpinning values and beliefs. People‘s culture is not consciously learned but rather absorbed from birth throughout life. It forms the foundation of all societies by reinforcing a given society‘s way of life,
thereby giving legitimacy. Different systems of knowledge exist to allow us to understand, perceive define and experience reality.
Knowledge is an acquaintance with facts, truth or principles as from study or investigation critical for decision making. We view Knowledge in three forms, namely, tacit knowledge, explicit knowledge and Indigenous knowledge (IK).

Tacit Knowledge is Personal knowledge existing within people that enables them to know how to do things based on their experiences. This is what informs their judgment, insights, experience, know-how as well as personal beliefs and values. Explicit knowledge is documented information that can be shared with someone based on training materials read and interaction with others during training. A trainer may know the exact sequencing and/or steps in conducting and delivering his or her training. Indigenous knowledge in the other hand is traditional knowledge which requires increased focus. This has been identified through research work and documentation by coding or recoding. These are subsequently transformed into explicit knowledge through written materials and studies on the same in Africa. Indigenous knowledge thus includes African traditional knowledge systems and western knowledge systems.

Definition of Knowledge-Based Economy:
Knowledge and technology have become increasingly complex, raising the importance of links between firms and other organisations as a way to acquire specialised knowledge. A parallel economic development has been the growth of innovation in services in advanced
economies. Knowledge based economy is an expression coined to describe trends in advanced economies towards greater dependence on knowledge, information and high skill levels, and the increasing need for ready access to all of these by the business and public sectors. The recognition of knowledge as a critical element of economic growth is not new. Over the past two decades, knowledge has become the engine of the social, economic and cultural development in today‘s world, radically transforming all other dimensions of
development and the ways in which societies operate.

The issue has long been acknowledged as a factor behind the economic success of the developed world according to the Organisation for Economic Co-operation and Development (OECD, 1996). The OECD‘s definition of a knowledge economy (KE) focuses on sectors that apply the intensive use of technology and include services, which are also heavily knowledge-based.

Pillars of Knowledge Based Economy
There are four elements that allow effective exploitation of knowledge which are;

  • An economic and institutional regime that provides incentives for the efficient use of the existing knowledge, the creation of new knowledge, and the flourishing of entrepreneurship;
  • An educated and skilled population that can create, share and use knowledge well;
  • A dynamic information and communication infrastructure that can facilitate processing, communication, dissemination; and finally
  • An effective innovation system (i.e. a network of research centres, universities, think tanks, private enterprises and community groups) that can tap into the growing stock of global knowledge, assimilate and adapt it to local needs, while creating new knowledge and technologies as appropriate.

GLOBAL / AFRICA’S PERSPECTIVE OF KNOWLEDGE ECONOMY
The global economy is currently undergoing a major shift to a knowledge-based economy. The broad consensus, evidenced by extensive World Bank data, is that this shift presents a major opportunity for developing nations. In a knowledge-based economy, the principle means of exchange and creation of value is through knowledge. Key enablers of the knowledge value chain include the development of collaborative communities with aligned or complementary objectives and the facilitation of knowledge access designed to catalyse innovation, application and implementation.

Through embracing a knowledge-based economy, Africa can make disproportionate progress by building on its own natural strengths to overcome perceived challenges and disadvantages. By developing a knowledge-based economy infrastructure across the entire continent, Africa can overcome tendencies towards knowledge silos and socially exclusive knowledge infrastructures. Various scholars have questioned why Africa should be part of the global knowledge economy; why and how can Africa mobilise its indigenous knowledge, innovation systems and natural resources in the promotion of sustainable development and community livelihoods.

The experience in other developing countries such as South Korea, Singapore, etc. has demonstrated that knowledge is the foundation of sustainable development. A global knowledge revolution is taking place, leading to a post-industrial society. The mega-trends in this knowledge revolution and globalisation include: an explosion of telecommunications; intensified global competition; scientific advances in areas such as bio-technology; increased exchanges of technology (international licensing flows); and knowledge investments which exceed capital goods investments. It is argued that Africa missed the opportunity of going through an industrial era. Therefore, Africa now needs to take advantage of its Indigenous Knowledge and innovation systems, including resources,
to participate effectively in the knowledge revolution characterised by a shift from a resource-based to a knowledge-based economy.

Africa‘s sustained economic growth will increasingly depend on the continent‘s economic capacity for innovation, as well as its ability to produce a wider array of goods and services, to accelerate the pace of technological change and to integrate with the global economy. Enhancing this capacity will require investment in human resources development and a strengthening of the innovation environment and Africa‘s information and communication technology (ICT) infrastructure.

If Africa is to benefit from the ICT revolution, more work is needed to review and modernise telecommunication policies and regulations to generate fair competition and reduce high communication and operational costs. It is this consideration that highlights
the importance of the quality of education Africa should offer, particularly tertiary education, as it is a crucial element of the capacity to innovate. Alders (2003) emphasises that innovation is the path to economic diversification and moving up the value chain. The following section looks at the role of Indigenous Knowledge (IK) and innovation systems in promoting a sustainable knowledge economy.

INDIGENOUS KNOWLEDGE AND SUSTAINABLE DEVELOPMENT
The term Indigenous Knowledge (IK) and innovation systems refers to a distinctive body of knowledge and skills, including practices and technologies, that have been developed over many generations outside the formal educational system and which enable
communities to survive. Indigenous knowledge (IK) and innovations are a significant resource, which could contribute to the increased efficiency, effectiveness and sustainability of the development process in Africa. It is a key element of rural communities‘ social capital and constitutes their main asset in their efforts to gain control of their own lives (Mascarenhas, 2004). Full recognition and utilisation of IK may reduce the risk of creating dependency, which is often the result of developmental projects. Therefore, mobilisation of IK and innovations will assist Africa to attain the following goals:

Kayumba (1999) argues that African governments and their international aid efforts to achieve sustainable development since political independence in the 1950s and 1960s have failed. This is attributed to a number of factors related to the marginalisation and/or
distortion by imported western technologies of Indigenous Knowledge Systems and innovations.

Most development models have tended to rely on western development paradigms and structures. Hence, there was a mismatch between what local people know (IK) and western development models. Western values and technological interests are perpetuated
by the existing education systems in Africa and their western-style curricula. There was also a lack of understanding and appreciation by African governments and development agencies of the pertinent local issues and no development of a common approach by stakeholders, i.e. a participatory model, which takes into consideration local communities‘ interests and knowledge systems. Another factor is that some African elites suffer from colonised minds and do not appreciate the role of Indigenous Knowledge and
innovations in sustainable development and community livelihoods.

It is important to note that there is increasing realisation among researchers, academics, policy-makers and development agencies within and outside Africa that development efforts which ignore local circumstances tend to waste an enormous amount of time and
resources. Compared to modern technologies and approaches to sustainable community livelihood, Indigenous Knowledge and innovations have been tried and tested by the local people themselves.

They are effective, inexpensive, locally available, culturally appropriate, and based on preserving and building on the patterns and processes of nature. It is in recognition of this important role of IK and innovation systems in sustainable development, especially in
R&D, that IKS were identified as one of the flagship programme areas of the NEPAD Science and Technology.

Indigenous Knowledge (IK) and innovation systems are important because they are cumulative and represent generations of experiences, careful observations, and trial and error experimentation. They are also dynamic because new knowledge is continuously
being added through local innovations as people struggle to survive in their specific environments. In this process of innovation they use and adapt external knowledge to suit the local situations. Experience shows that African local communities have over centuries used these knowledge systems as the basis for decisions pertaining to food security, human and animal health, education, natural resources management, conflict transformation and other vital activities. IK and innovations are a key element of the social capital of the poor and constitute the main asset in their efforts to gain control of their own lives.

INTERFACE BETWEEN IK AND INNOVATIONS WITH MODERN SCIENCE &TECHNOLOGY FOR SUSTAINABLE COMMUNITY LIVELIHOODS

African indigenous knowledge systems are increasingly becoming an integral part of the global body of knowledge. Indigenous knowledge systems can be compared and contrasted with the global knowledge system (Warren, 1993) and in so doing uncover
mechanisms for evaluating the strengths and weakness of each system. This interactive flow has already resulted in mutually-beneficial exchanges of knowledge that have enhanced the capacity of the formal research system to solve priority problems identified within local communities. Both multilateral and bilateral donor agencies are now recognising the role of indigenous knowledge in sustainable development including the promotion of public health care.

Most local African communities are realising that Indigenous Knowledge and innovations continue to provide the building blocks for development and public health in most African countries, while seeking co-operation with modern knowledge for the mutual benefit of the two systems. A number of communities have demonstrated efforts made in various parts of the continent to interface African indigenous knowledge with modern knowledge systems for sustainable community livelihoods.

The Tanga AIDS Group (TAWG) in Tanzania has demonstrated a partnership between traditional healers and bio-medical practitioners to combat HIV/AIDS, and the training of traditional healers in diagnosing HIV/AIDS from a western perspective at the Nelson Mandela Medical University of Zululand. In Northern Malawi, local farmers practice ethno-veterinary work in collaboration with research and academic institutions such as the Bunda College of Agriculture (University of Malawi) and the National Herbarium in Zomba for botanical identification of the indigenous medicinal materials.

They collaborate on trials that use western scientific methods to verify the claims of the farmers. The collaboration aims to promote the conservation of medicinal plants and the complementary use of indigenous and conventional veterinary medicine for sustainable
livestock production.

KNOWLEDGE BASED ECONOMY AND KENYA’S ECONOMIC DEVELOPMENT AGENDA
Kenya intends to become a knowledge-led economy wherein, the creation, adaptation and use of knowledge will be among the most critical factors for rapid economic growth. The Kenya Vision 2030 recognises the role of science, technology and innovation (STI) in a
modern economy, in which new knowledge plays a central role in wealth creation, social welfare and international competitiveness.

The Kenya Vision 2030 recognises that STI will be critical to the socio-economic transformation of the country. Kenya harnesses science, technology and innovation in all aspect of its social and economic development in order to foster national prosperity and
global competitiveness. Science, technology and innovation will be mainstreamed in all the sectors of the economy through carefully-targeted investments. The introduction and use of internet in many rural areas in Kenya has impacted positively on individual lives in the rural villages making them the catalytic and developmental potential nerve of the entire economy. The internet has changed people‘s lives by empowering them to live more sustainable.

Another major innovation that is widely viewed as a success story to be emulated across the developing world is M- Pesa services, an SMS based money transfer system that allows individuals to deposit, send, and withdraw funds using their cell phone. M-PESA has grown rapidly, currently reaching approximately 38 percent of Kenya‘s adult population. The service allows users to deposit money into an account stored on their cell phones, to send balances using SMS technology to other users (including sellers of goods and services), and to redeem deposits for regular money. Charges, deducted from users‘ accounts, are levied when e-float is sent, and when cash is withdrawn.

The ongoing projects in the development of ICT in Kenya shows that people and communities in rural and urban areas benefit from ICT both socially and economically and thereby being able to use the internet for the same purposes as people in western countries, such as communicating with others, searching for information and buying goods and services. It has also been noted that Indigenous Knowledge and innovation provides the potential for local communities to go beyond poverty alleviation and generate wealth utilising their local knowledge, innovations and resources. A Case Study in Kenya by Mr. Ngumbi Kimeu of Kitui District, entitled: ‗Rethinking Indigenous Knowledge in Beekeeping for Sustainable Livelihood demonstrated how local communities in the district use their
knowledge and innovations developed over the years to promote beekeeping activities for sustainable income generation.

As envisaged in the Kenya Vision 2030, Strategies for promoting science, technology and innovation and hence the management of knowledge are;

  • Strengthening technical capabilities: Kenya will strengthen her overall STI capacity. This will focus on creation of better production processes, with strong emphasis on technological learning. The capacities of STI institutions will be enhanced through advanced training of personnel, improved infrastructure, equipment, and throughstrengthening linkages with actors in the productive sectors. This will increase the capacity of local firms to identify and assimilate existing knowledge in order to increase competitiveness.
  • High skilled human resources: Measures will be taken to improve the national pool of skills and talent through training that is relevant to the needs of the economy.
  • Intensification of innovation in priority sectors: To intensify innovation, there will be increased funding for basic and applied research at higher institutions of learning and for research and development in collaboration with industries. Measures will be taken to identify and protect heritage. In order to encourage innovation and scientific endeavours, a system of national recognition will be established to honour innovators.

In order therefore to attain Knowledge-based economies, the following should be done;

  • Provide community development services – a knowledge-sharing hub supporting a collaborative, network of knowledge networks. This can only be stimulated to develop organically – by supporting knowledge networks to address particular shared interests and goals such as, for example, government service delivery, governance, management of HIV/Aids, promotion of women‘s rights. The goal is to connect forward-thinking leadership and change agents throughout the African continent and its Diaspora, creating a strong and effective continental and global support network;
  • Facilitate monitoring and evaluation, benchmarking and learning for different aspects of development and service delivery. service-delivery challenges stored and continuously improved through a shared library;
  • Develop a shared knowledge repository, linked to benchmarking measures of related challenges and solutions, where solutions include action-learning resources, services and providers, and infrastructure approaches.

Knowledge is an acquaintance with facts, truth or principles as from study or investigation critical for decision making. Knowledge is informed by understanding that germinates from combination of data, information, experience, and individual interpretation is referred to as Knowledge . Within the context of organisation, knowledge is the sum of what is known and resides in the intelligence
and competence of the people. Personal knowledge existing within people that enables them to know how to do things based on
their experiences and which informs their judgment, insights, experience, know-how as well as personal beliefs and values is called tacit knowledge.

This knowledge is exhibited at individual level. For instance, one may have training materials but may not have the experience to deliver training that would lead to transfer of knowledge or skills. He or she therefore lacks the tacit knowledge which is the know-how based on previous experience. On the other hand, information that has been documented and can be shared with someone is referred to explicit knowledge. Based on the training materials read and interaction with others a trainer may know the exact sequencing of steps conduct and deliver his or her training. Though viewed as tacit knowledge, intensified activities involving research and documentation through coding or recoding will subsequently transforms IK into explicit knowledge. Practitioners observe that, much is yet to be captured and time is running out.

In a local example we shall deal with vision 2030 transformation as shown above.
Vision 2030 imperatives – Research

  • Contextualized and applied research
  • Multi-disciplinary – academia/industry/government
  • Demand-led research – what are the requirements of Vision 2030? Infrastructure, economic zones, energy, ICT, construction, etc
  • Funding for R & D – targeted and prioritized
  • Science and technology curricula

Vision 2030 imperatives – Innovation

  • New products, technology, processes, markets, ventures, and organizational models – or adoption/modifications
  • Innovative capacity a function of university/industry collaborations and R&D spending
  • Productivity and competitiveness – dependent on innovation and human capital
  • Required – incentives for innovators – incubation, awards

Vision 2030 imperatives – Human Capital

  • Human capital and Vision 2030 – Agro-processing, infrastructural development, Knowledge-intensive industries, entrepreneurship (new and innovative ventures) – these require highly skilled workforce
  • Relevant knowledge for Vision 2030 at all levels – graduate and post-graduate engineers, but also intermediate and vocational training (technicians)
  • Skills raise the prospect of adoption of new technologies and business opportunities

On basis of this we can conclude that:-

  • The government should prioritize research funding based on relevance to development goals
  • Demand-led research and skills development as opposed to reactive
  • Various levels in science and technology qualifications, including intermediate (vocational) training to be given priority
  • Multi-disciplinary, inter-organizational research design involving universities, government, and industry. (Industry – academic collaboration)
  • Support recognized innovators and protect them through intellectual property laws

PRODUCT/SERVICE RE-ENGINEERING
Definition
This is the fundamental reconsideration and redesign of organizational products/services in order to achieve drastic improvement of current performance in cost. As organizations continue to evolve and reinvent themselves to develop new focus areas
and cater to new markets, it is imperative that their business systems do not fall behind and become obsolete. An organization should provide maintenance and reengineering services to keep its products tuned so that business needs do not outpace business
systems.

The Reengineering Process Model has the following phases:

  • Product study phase
  • Reengineering phase
  • Regression testing phase
  • Acceptance testing phase

Objectives of product/service reengineering

  1. Productivity and competitiveness
    This emphasizes increased productivity and competitiveness as one of the key guiding principles for expanding and maintaining the domestic and export markets in a liberalized environment.
  2. Market development
    The takes cognizance of the need to diversify and expand markets for industrial value added products. It addresses supply side constraints with regard to product quality, volume and standards.
  3. High value addition and diversification
    The recognizes high value addition to the resource endowment as key for optimizing creation of wealth, employment and regional development. It therefore emphasizes on further processing of primary products.
  4. Regional dispersion
    The underscores the need for equitable dispersion of industries throughout the country in order to accelerate the pace of development especially in the marginalized areas.
  5. Technology and innovation
    The recognizes innovation as central to meeting the rapidly changing consumer tastes and preferences while also boosting productivity and competitiveness of the industrial sector.
  6. Employment Creation
    This focuses on quality and sustainable employment creation.
  7. Environmental Sustainability
    The recognizes the need to promote sustainable industrial development that upholds environmental protection, management and efficient resource utilization.
  8. Compliance with the New Constitution and achievement of Vision 2030

This is particularly in the Public Sector . Process reengineering should be well-aligned to the provisions of the constitution and takes into account the constitutional provisions for a devolved structure of government and the particular call to encourage regional dispersal of industries as a basis for equity and empowerment across the nation.

Education and manpower development
This recognizes that reengineering can only take place when there is a strong and well trained workforce from all levels of training.