TOPIC 2:

NATURE OF LAW AND ITS ATRIBUTES

INTRODUCTION

According to Morris writes: ‘’To zoologist, a horse suggests the genus mammalian
quadruped, to a traveler a means of transportation, to an average man the sports of
kings, To certain nations an article of food,’’ Likewise, law has been variously defined
by various individuals from different points of view and hence there could not be and
is not any unanimity of opinion regarding the real nature of law and its definitions

Various schools of law have defined law from different angles some have defined it on
the basis of its nature. Some defined it in terms of its effect on society. There are
others who defined law in terms of the end or purpose of law.

A definition which does not cover various aspects of law is bound to be imperfect.
Moreover, law is a social science which grows and develops with the growth and
development of society.

DEFINITION OF LAW
Ulpian defined law as ‘’the art or science of what is equitable and good ‘’.
Cicero said that “law is the highest reason implanted in nature’’.
Blackstone writes: ‘’Law in its most general and comprehensive sense signifies a rule
of action and is applied indiscriminately to all kinds of actions, whether animate or
inanimate, rational or irrational. Thus, we say the laws of gravitation, or optics or
mechanics, as well as the laws of nature and of nations.
According to Austin,’’ law is the aggregate of rules set by men as politically superior,
or sovereign, to men as politically subject.’’ In other words, Law is the command of
the sovereigh.it imposes a duty and its backed by a sanction. Command, duty and
sanction are three elements of law.
Inhering defines law as “the form of the guarantee of the conditions of life of society,
assured by state‘s power of constraint.
Hobbes “Law is the speech of him who by right commands somewhat to be done or
omitted”.
Cardozo writes: ‘’ A principle of rule of conduct so established to justify a prediction
with reasonable certainty that it will bee enforced by the courts if its authority is
challenged is a principle or rule of law.’’
Holland says: ‘’More briefly, law is general rule of eternal human action enforced by
a sovereign political authority. All other rules for the guidance of human action are
laws merely by analogy; and proposition which are not rules for human actions are
laws by metaphor only’.
According to Bentham: ‘’Law or the law, taken indefinitely, is an abstract or
collective term, which when it means anything, can mean neither more nor less than
the sum total of a number of individual laws taken together.’’
Salmond defines law as “the body of principles recognized and applied by the state in
the administration of justice.’’
THEORIES OF LAW
There are various theories which were propounded by various philosophers of different
schools with the objective of enumerating the nature of law as follows;
1. Imperative theory( also called Austin’s theory of law);
2. The theory of legal realism (laws are principles enforced by courts);

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 3. Kelsen’s pure theory of law ( law as a Norm of action);
4. Marxist theory of law;
5. Historical school;
6. Sociological school;
7. Natural law school.
IMPERATIVE THEORY (AUSTINE ‘S THEORY OF LAW)

Austine’s theory of law is also known as the imperative theory of law.

According to Austin, positive law has three main features:
1. It is a type of command.
2. It is laid down by a political sovereign.
3. It is enforced by sanction.
A typical example would be the Road Traffic Act Chapter 403 of the Laws of Kenya,
which could be describe as a command laid down by the sovereign under the
Kenyan legal system. This Act lays down certain rules which have to be followed
(Command). It has been passed by parliament (laid down by the sovereign
authority of Kenya). Its violations are met with penalties (sanctions).

According to Austin, requests, wishes etc. are expressions of desire, while commands
are expressions of desire given by superiors to inferiors. The relationship of superior to
inferior consists for Austin in the power which the former enjoys over the other, i.e.,
his ability to punish him for disobedience.

To Austin, a sovereign is any person or body of persons whom the bulk of a political
society habitually obeys and who does not himself habitually obey some other person
or persons.

A command is the expression of a wish or desire to another so that he shall do a

particular thing or refrain from doing a particular thing. In case of non-compliance
with the command, he is to be visited with certain evil consequences. The sanction
behind law is the evil which is to be infected in case of disobedience.

CRITICISM OF AUSTINE’S THEORY OF LAW

1. Laws before state: The definition of law in terms of state has been criticized by the
jurists belonging to the historical and sociological schools.
According to this school, law is prior to and independent of political authority and
enforcement. A state enforces it because it is already law. It is not correct that it
becomes law because the state enforces it.
2. Generality of law: According to Austin, Law is a general rule of conduct, but that
is not practicable in every sphere of law. A law in the sense of the Act of the legislature
may be particular in the fullest sense of the word.
Example: A Divorce Act is law even if it does not apply to all persons.
Law, in the sense of legal system, can be particular. The requirement that law should
be general is extremely difficult to maintain. There are degrees of generality. The
question whether a contract can create law for the parties has peculiar urgency for the
international lawyer.
3. Promulgation: According to Austin, law is a command and that command has to
be communicated to the people by whom it is meant to be obeyed or followed. This
view of Austin is not tenable. Promulgation is usually resorted to but it is not essential
for the validity of a rule of law.

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4. Law of command: According to Austin, law is a command of the sovereign but all
laws cannot be expressed in terms of a command. The greater part of a legal system
consists of laws which are neither command nor forbid things to be done. They
empower people by certain means to achieve certain results, e.g. Laws giving citizens
the rights to vote, laws conferring on leaseholders the right to buy the reversion, laws
concerning the sale of property and making of wills.
5. Sanction: Austin’s definition of law may be true of a monarchical police state, but
it cannot be applied to a modern democratic country whose machinery is employed for
the service of the people. The sanction behind law is not the force of the state but the
willingness of the people to obey the same. To define law in terms of sanction is like
defining health in terms of hospital and diseases. Force can be used only against a few
rebels and not against the whole society.
Sanction can be applied only if there are only a few to oppose the law. However, if
everyone decides to challenge law, it is bound to fail in its objective and no sanction
can enforce the same.’’
6. Not applicable to international law: Although international law is not the
command of any sovereign, yet it is considered to be law by all concerned
7. Not applicable to constitutional law: Austin’s definition of law does not apply to
constitutional law which cannot be called a command of any sovereign. As a matter of
fact, the constitutional law of a country defines the powers of the various organs of the
state. Nobody can be said to command himself. Even if one makes a command to bind
one’s self, it cannot have much force.
8. Disregard of ethical elements: Austin’s theory of law is defective in as much as it
disregards that ethical element which is in essential constituent of a complete
conception. Austin’s theory is silent about the special relation between law and
justice.
9. Purpose of law ignored: Austin’s theory of sovereign ignores altogether the
purpose of law and hence is one-sided and incomplete
10. A theory of “gunman law” on the ground that it makes no real distinction
between a law and the command of a bank robber who pint s his gun at the bank
clerk and orders him to hand over the contents of the till.
MERIT OF THE THEORY
1. Austin rendered a great service by giving a clear and simple definition of law;
2. Salmond states that Austin’s theory contains an important element of truth
with regard to the nature of law.

THE THEORY OF LEGAL REALISM (LAWS ARE PRINCIPLES ENFORCED BY

COURTS)
The realists contend that law has emanated from Judges, therefore law is what courts
do and not what they say. For them, judges are the law makers.
The theory though peddles in America by Oliver Windell Holmes, Gray, Cardozo and
Jerome Frank, This theory was propounded by Salmond.
He regarded law as the practice of the court and propounded theory of legal realism.
Like contemporary positivist, he agreed that law is an expression of the will of the
state but as a realist he felt that it is not the parliament but court which expounds the
law.
Realists define law as “generalized prediction of what the Courts will do”
Basic features of realist school
1. There can be no certainty about law as its predictability depends upon the set
of facts which are before the court for decision;
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 2. They do not support the formal, logical and conceptual approach to law because
the Court while deciding a case reaches it’s decision on ‘emotive rather than
‘logical grounds;
3. They lay greater stress on psychological approach to the proper understanding
of law as it is concerned with human behavior and convictions of the lawyers
and judges;
4. Realists are opposed to the value of legal terminology, for they consider it as a
tacit method of suppressing uncertainty of law;
5. The realist school prefers to evaluate any law in terms of its effects.
Criticism
1. Judges apply and enforce the law rather than defining it.
2. It is appropriate as far as case- laws is concerned but it does not seem
appropriate in respect of statute law the reason being that statute law becomes
a law as soon as it is passed and brought on the statute book and does not
await a case to come to court and receive judicial recognition and further that
statutes are recognized by law courts because they are law, they not law simply
by judicial recognition.
3. Quite a large number of law suits never reach courts therefore they do not have
judicial recognition which is an essential attribute of law according to Salmond.
4. Case law is often made in haste without regard to wider implications; the courts
generally give decisions on the spot and only rarely take time for consideration.
5. Realists have exaggerated the role of human factor in judicial decision, it is not
correct to say that judicial pronouncements are the outcome of the personality
and behavior of the judge;
6. Realist school is confined to local judicial setting of United States and has no
universal application in other parts of the world.

Kelsen’s pure theory of law (law as a Norm of action);

Kelsen tried to modify Austin’s theory of law by propounding his pure theory of law.
He regards law as a norm of action and jurisprudence as a normative science as
distinguished from natural science.
According to Kelsen, “state is a synonym for the legal order which is “pyramid of norm”
He builds up his pure theory of law on the hypothesis of the grundnorm or basic norm.
Example:
According to Kelsen, for Kenya, the grundnorm is “what the parliament lays down as
law. There is no norm above this. He contends that from the basic norm, norm making
power devolves upon a lower level, from which it flows to a still lower level and so on.
Thus the entire hierarchy of norm- making organs and the process of concretization of
norm is called by Kelsen the “legal Order” of a particular state.
He did not favour widening the scope of jurisprudence by co-relating it with all social
sciences and rigorously insisted on separation of law from politics, sociology,
metaphysics and all other extra-legal disciplines.
Salient features of Kelsen’s theory of pure science of law
The pure theory of Law as propounded by Kelsen is founded on certain basic
assumptions which may be summarized as follows:
1. The theory is aimed at reducing chaos and confusion created by the supporters
of natural law philosophy;
2. The theory deals with the knowledge of what law is, and it is not concerned
about what law ought to be;
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 3. The theory considers law as a normative science and not a natural science;
4. It is a theory of norms not so much concerned with the effectiveness of the legal
norm;
5. It is a formal theory confined to a particular system of positive law as actually
in operation.
Kelsen’s pure theory of law is an improvement upon Austin’s imperative theory
in the following aspects;
1. There is no dualism between state and law: for Austin, law was subordinate
to the sovereign which is a personification of the state. Since law is the
command of the sovereign, it cannot control the sovereign. But Kelsen treats
state as a unity of legal order therefore, there is no dualism between state and
law.
2. Law need not be imperative: like Austin, Kelsen also thinks that sanction is a
necessary element of law but he does not treat law as a “command” of the
sovereign. There are many laws such as law of evidence, law of procedure,
limitation etc. which could not be called law in the Austinian sense of the term
but Kelsen has cleared this confusion by asserting that law need not be
necessarily imperative.
3. Customary law is also law strictu sensu: since custom is not created by the
sovereign, it is not law according to Austin’s theory of law. But applying pure
theory of law which treats legal order as a ‘pyramid of norms”, Kelsen brought
custom within the definition of law as it is an intermediate norm and a popular
practice which finally generates into a legal norms.
4. There is not dichotomy between private and public law: the propounders of
the positive school drew a distinction between public and private law. They
pointed out that the former deals with the rights and duties of the sovereign (or
the state) towards the subjects while the latter deals with rights and duties of
private persons inter-se. Kelsen refuted the distinction since he denied to accept
sovereignty (or the state) as a distinct entity. This automatically brought to an
end the prevailing dichotomy between private and public law which was created
by analytical jurists.
5. International law is a law in strict sense of the term’s law: Austin did not
consider international al law as law but called it as a mere ‘positive morality’.
Since the sovereign is not himself bound by this law, which is his own creation.
Kelsen regards international organization as superior to the legal order
otherwise called the state and therefore, its norms are binding upon the state.
Criticism
Kelsen’s theory suffers from certain glaring defects despite the facts that it seeks to
divest law from natural Law doctrines and from the elements of justice which was a
predominant characteristic feature of the laws introduced by the totalitarian state:
1. It excludes all reference of social facts and felt needs of the society, thus
his theory of law is without any sociological foundation.
2. Kelsen’s assertion that all the norm excepting the basic norm
(grundnorm) are pure, has no logical basis. One really fails to understand as
to how subsequent norms which derive their authority from the Grundnorm
can be pure when the grundnorm itself is based on a hypothesis that it is an
outcome of a combination of various social and political factors and
circumstances in a given situation.
3. The theory is found to be based on hypothetical considerations without
any practicality. It is not possible to divest law from the influence of political
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 ideologies and social needs. He doesn’t consider justice and morality as
essential attributes of law.
4. The theory has no solution for the conflicts arising out of ideological
differences. Law cannot be completely divorced from ethics and morality which
gives it a honourable place in the society.
5. The account of legal dynamics is inadequate; it ignores the purpose of law.
Example, while considering the validity or otherwise of a particular enactment.
The courts do take into account the prevailing custom or the motive of the
legislature and try to correlate it with the social purpose which the Act seeks to
achieve.
6. The theory suffers from methodological shortcomings. He ignores the fact
that the action of the authority enforcing law to be valid has to be in accordance
with the procedure and therefore it becomes necessary to probe into the content
of law, mere use of force would not validate a law.
Merits of the theory
Despite the shortcomings, Kelsen’s contribution to legal theory cannot be ignored and
they are as follows:
1. He attempted to break away with the traditional natural law theory on the one
hand and legal positivism on the other.
2. He asserts that legal knowledge is free from foreign elements such as ethics,
psychology, sociology etc.
3. His normative theory separates law from morality on the one hand and law and
facts on the other.

MARXIST THEORY OF LAW

The same was propounded by Carl Marx and Engel.
It is also called the communist theory of law.
The theory considers law as an instrument of suppression its main function being to
secure power relationship. It is essentially meant to further the ends of the
economically dominant class of society at the expense of the suppressed class.
Carl Marx in his “communist Manifesto” pointed out that the history of all hitherto
existing society is nothing but the history of class struggle. The social and economic
development of society is essentially an outcome of class struggle between the
dominant and the suppressed classes of the society. In either stage it existed in the
form of privileged class and the slaves which subsequently changed into the class
struggle between the feudal Lords and the serfs. With the evolution and development
of trade, commerce and industries this class struggle transformed onto a clash if
interest between the capitalists and the working class i.e. the haves and the have
not’s.
Propositions of Marxists theory
1. Law is essentially one form of politics and the two are inseparable;
2. Law and state are closely related but law exhibits relative autonomy from the
state;
3. Law in its legal form replicates the prevailing economic relations;
4. Law has in it a coercive element and manifests the state’s monopoly of the
means of coercion;
5. The contents and procedure of law reflects the interest of dominant class or the
power – block;

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 6. Law is ideological and provides legitimation for the inherent values of the
dominant class. Example Honourable Keter in the news in the news when he
indicated that the legislature makes the law and can amend the same in there
is a lacuna to suit the situation of the legislators.
Carl max believed that state and law are bound to wither away sooner or later because
with the abolition of classes, the power of the state would disappear.
However, the Marxist view about law and state has radically changed in the preceding
decades with the emergence of socialism and democracy. With these changes, the
power and authority of the state and law has considerably increased and the theory of
their withering away now stands completely discarded.

HISTORICAL SCHOOL
The exponents of this school take social institutions in their sequence with primacy to
primitive legal institutions of the society.
The school doesn’t attach importance to relation of law to the state but gives primacy
to the social institutions in which the law develops itself. It concentrates on evolution
of law from the primitive legal institutions of the ancient communities.
Backdrop
The revolutionary ideas generated by positivist’s legal thinking had a devastating effect
as they failed to meet the needs of the people. Consequently it led to the emergence of
new approach to the study of jurisprudence based on history and historic concept of
law.
Vico in Italy, Montesquieu in France, Burke in England and Hugo and herder in
Germany heralded a new era in the development of legal theory and viewed law as a
legacy of the past and product of customs, traditions and beliefs prevalent in different
communities.
The historical jurists believe that law has biological growth and it has not evolved in
an arbitrary and erratic manner.
Stages of development of law

Supporters of Historical school have traced the evolution and development of law
through four main stages:
1. Divine law: in the beginning law originated from Themes, which meant the
goddess of justice. It was generally believed that while pronouncing judgements,
the king was acting under divine inspiration of goddess of justice. Themestes
were the awards pronounced by the goddess of justice to be executed by the
king as a custodian of justice under divine inspiration. Thus the kings were
merely the executors of judgement of God.
2. Customary law: the recurring application of judgements led to uniform practice
which crystallized into customary law to be followed in the primitive societies.
Custom is to society what law is to state as enumerated by Henry Maine.
3. Priestly class as a sole repository of customary law: in the next stage of
development of law, the authority of the king to enforce the executed law was
usurped by the priestly class who claimed themselves to be learned in law as
well as religion. The priestly class memorized the rules of customary law
because the art of writing had not developed until then. The applied and
enforced the customary law.
4. Codification: the era of codification marks the fourth the probably the last
stage of development of law. With the discovery of the art of writing, a class of
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 learned men and jurists came forward to denounce the authority of priests as
law givers. They advocated codification of law to make it accessible and easily
knowable. This broke the monopoly of priestly class in matters of
administration of law.

SOCIOLOGICAL SCHOOL OF LAW

This school has emerged as a result of synthesis of various juristic thoughts.
The exponents of the school considered law as social phenomena; they are concerned
with relationship of law to other contemporary social institutions.
The exponents include:Montesque,Auguste compte,Herbert spencer,Rudolph Von
Ihiring
They emphasize that jurists should focus their attention on social purpose and
interest served by law rather than on individuals and their abstract rights.
It is majorly to study the effect of law and society on each other.
They treat law as instrument of social progress.
The supporters of sociological jurisprudence linked law with other social science
disciplines and treated it as a synthesis of
‘psychology,philosophy,economics,politics.science and sociology.
Law according to them was an applied science employing functional methods of
investigation and analysis for solving the social and individual problems.
Features of sociological jurisprudence
1. Law is a result of constant struggle: the role of law is to harmonize conflicting
interest of individuals for the purpose of protection of interest of the society as a
whole.
2. Law is to serve a social purpose: the ultimate end of the law is social purpose
and not the individual purpose or interest. The state should ensure the
avoidance of clashes between the individual and social interest.
3. Law alone is not means to control the society: there are some other conditions
such as climate, topography wherein law need not intervene.
4. It lays greater stress on functional aspect of law rather than its abstract
contents.
5. They consider law as a social institution essentially inter-linked with other
disciplines bearing direct impact on the society.
6. They uphold the view that law is designed on the basis of human experience in
order to meet the needs of the society.
7. It discards the abstract notions of analytical positivism which lay great
emphasis on command or power aspect of law.
8. It discards the dead weight of past culture and traditions which constituted the
main theme of the historical jurisprudence.
9. It has a multifaceted approach to resolve problems of society that is some prefer
to adopt pragmatic empirical recourse while others prefer to look at it in terms
of court ruling thus realistic approach.
Distinction between historical and analytical school of law

Analytical school Historical school

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1. Law is the creation of the state.
2. Without a sovereign, there can be no law.
3. The hallmark of law is enforcement by the
sovereign.
4. The law rests upon the force of politically
organized society.
5. Judges should confine themselves to
interpreting the law.
6. The typical law is statute.
1. Law is found and not made. It is
self existent.
2. Law is antecedent to the state and
it existed even before states came
into existence.
3. Law is independent of political
authority and enforcement.
4. Law rests on social pressure.

7. Emphasis is an empirical a priori method. 5. In construing a statute, judges

should consider the history of
legislation in question.
6. The typical law is custom.

7. Emphasis is on comparative
method.

PURPOSE AND FUNCTION OF LAW

The object of law is to maintain law and order in the country.
According to Hobbes: “Law was brought into the world for nothing else but to limit
natural liberty of particular men in such a manner as they might not hurt but assist
one another and join together against a common enemy.’’
‘’The aim of law is freedom and the fundamental process of law is the adjustment of
one’s freedom to that of every other member of the community.’’ The maximization of
the happiness of the greatest number of the members of the community in question as
stated by Jeremy Bentham.’’
Maintain law and order within a given society and that has to be done at any cost. The
second purpose of law is to maintain the status quo in society. The third purpose is to
enable individuals to have the maximum satisfaction of the needs of the people.
‘’The rule which determines the sphere within the existence and activity of each
individual may obtain of the obtain secure and free play’’

USES OR ADVANTAGES OF LAW

(1)They provide uniformity and certainty to the administration of justice:
The same law has to apply in all cases. There can be no distinction between one
case and another case if the facts are the same. Law is not respector of personality.
Not only this, law is also certain. The legal system of a country is put down in
black and white and it is possible for all the people to know the law of the land.
(2) The existence of fixed principles of law avoids the dangers of arbitrary,
biased and dishonest decisions: Law is certain and known. Therefore, a
departure from a rule of law by a judge is visible to all. It is not enough that
justice should be done, but it is also necessary that it should be seen to be done. If
the administration of justice is left completely to the individual discretion of a
judge, improper motives and dishonest opinions could effect the distribution of
justice.

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 (3) The fixed principles of law protect the administration of justice from the
errors of individual judgment: In most cases, the law on the subject is clear and
judges are not expected to twist the same. They are not expected to substitute
their own opinion for law of the country. Experience shows that people have lived
happier lives when they are ruled by the fixed principles of law than when there are
no laws as such.
(5) It is more reliable than individual judgment: Human mind is fallible and
judges are no exception. The wisdom of the legislature which represents the
wisdom of the people in a safer and more reliable means of protection than the
momentary fancy of the individual judge.
DISADVANTAGES OF LAW
(1) Law is rigid: An ideal system keeps on changing according to the changes in
times and circumstances. The lack of flexibility in law results in hardship and
injustice in several cases.
(2)It’s conservative in nature: Both the lawyers and judges favour the
continuation of the existing law. The result is that very often law is static.
(3) Formalism: More emphasis is put on the form of the law than its substance. A
lot of time is wasted in raising technical objections of law which have nothing to do
with the merits of the case in dispute. While insisting on the formalities of the law,
injustice may be done in very many cases.
(4) Undue and needless complexity: It is true that every effort is made to make
law as simple as possible but it is not possible to make every law simple. That is
due to the complex nature of modern society. Lawyers also insist on drawing fine
distinctions on the various points of law.
KINDS OF LAW
Imperative law, physical or scientific law, natural or moral law, conventional law,
customary law, practical or technical law, international law and civil law.
A. Imperative law
According to Salmond: “imperative law means a rule which prescribes course of action
imposed by some authority which enforces it by superior power either by physical
force or any other form of compulsion.”
Imperative laws have been classified with reference to the authority from which they
proceed. They are either:
1. Divine: Divine laws consist of the commands imposed by God upon men and they
are enforced by threats of punishment in this world or in the next world or
2. Human: Human law consists of imperative rules imposed upon men.
They are of three kinds: a) Civil law: Civil law consists of commands issued by the
state to its subjects and enforced by its physical power.
b) Law of positive morality: The law of positive morality
consists of rules imposed by society upon its members and enforced by public censure
or disapprobation and
c) Law of nations or international law: International law
consists of rules imposed upon states by the society of states international laws are
followed compulsorily and their breach is visited by punishment. Those may be war,
the severance of diplomatic relations, enforcement of economic sanctions and
condemnation by other states.
B. PHYSICAL OR SCIENTIFIC LAWS
According to Salmond: “physical or the laws of science are expressions of the
uniformities of nature. Physical laws are also called natural laws or laws of nature .

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There is uniformity and regularity in those laws. They are not the creation of men and
cannot be changed by them.
C. NATURAL LAW OR MORAL LAW.
According to Salmond: “These are the principles of natural right and wrong – the
principles of the natural justice if we use the term justice in its widest sense to include
all forms of rightful action.” It is called the command of God imposed upon men.
It is universally obeyed in all places and by all people.
It has existed from the beginning of the world and hence is called eternal. Divine law is
also called natural law as its principle are supposed to have been laid down by God for
the guidance of mankind.
It is called rational law as it is not to be based on reason.
It is called unwritten law as it is not to be found in the form of a code.
Natural law appeals to the reason of man. It is addressed to intelligent beings.
The view of Dias and Hughes is that some of the contributions of the philosophy of
natural law to human are:
(1)The various doctrines have always served the social need of the age.
(2)They have helped to maintain stability against changes as in the time of the Greeks
and the medieval church. They have inspired change against stability, notably after
the Reformation and the Renaissance.
(3)The philosophy of natural law has inspired legislation and the use of reason in
formation systems of law.
(4)The period from the Renaissance down to the 18th century witnessed a lasting
distinction drawn between positive law and morality.
(5)The same period also brought about the emancipation of the individual.
(6)A strong connection was established between positive law and freedom of the
individual.
(7)The natural rights of the individual acquired great significance.
4. CONVENTIONAL LAW
According to Salmond, conventional law means “any rule or system of rules agreed
upon by persons for the regulations of their conduct towards each other.”
It is a form of special law.
It is law for the parties who subscribe to it. Examples of conventional law are the laws
of cricket or any other game, rules and regulations of a club or any other voluntary
society.
Conventional law in some cases is enforced by the state.
When it is enforced by writers or international law or the law of nations is also a kind
of conventional law on the ground that its principles are expressly or impliedly agreed
by the states concerned.
5. CUSTOMARY LAW
Means “any rule action which is actually observed by men any rule which is the
expression of some actual uniformity of some voluntary action.”
Customary law is an important source of law. This is particularly so among the
conservative people who want to keep as much of the past as possible.
6. PRACTICAL OR TECHNICAL LAW
Practical or technical law consists of rules for the attainment of certain ends e.g. the
laws of health, the law of architecture etc. These rules guide us as to what we ought to
do in order to attain a certain end.
7. INTERNATIONAL LAW

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International law consists of rules acknowledged by the general body of civilized
independent states to be binding upon them in their mutual relations. It consists of
those rules which govern sovereign states.
International law is the body of principles and rules which civilized states consider as
binding upon them in their mutual relations.
8. CIVIL LAW
According to Salmond, civil law is “the law of the state or of the land, the law of the
lawyers and the law courts”.
Civil law is the positive law of the land or the law as it exists.
Like any other law, it is uniform and that uniformity is established by judicial
precedents.
It is noted for its consistency because without that, it would be nothing but the law of
the jungle.
It is enjoyed by the people who inhabit a particular state which commands obedience
through the judicial process. It is backed by the force and might of the state for
purpose of enforcement. Civil law has imperative character and has legal sanction
behind it. It is essential of territorial nature. It applies within the territory of the state
concerned. It is not universal but general. It creates legal rights, whether fundamental
or primary. It also creates secondary rights
CONSTITUTIONAL LAW
The term constitutional law has been defined by many writers. Hibbert defines
constitutional law as “the body of rules governing the relation between the sovereign
and his subjects and the different parts of the sovereign body.

TOPIC 3:

COURTS AND THEIR PROCEDURES

There are various courts in Kenya
The Judiciary of Kenya is the system of courts that interprets and applies the law.
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After the promulgation of the constitution of Kenya 2010 the general public through
parliament sought to reform the judiciary.
Parliament passed the Magistrates and Judges vetting act of 2011.
A major part of reforming the judiciary was the vetting of Magistrates and Judges in
an attempt to weed out unsuitable persons.
The Judicature Act has also been amended to raise the minimum number of
magistrate and Judges allowing more judicial officers to be hired.
More magistrates and judges are needed to clear the backlog of cases that have caused
great delay in the conclusion of cases and to staff new courts.
New courts are needed to bring the courts closer to the people which is in line with
devolution a major principle written into the Constitution of 2010.
New courts like the High Court opened in Garissa in November 2014 is a good
example. In the past residents of North Eastern Kenya had to go all the way to Embu
to access a High Court.
Courts
The Judiciary of Kenya consists of Superior courts made up of the following:
- Supreme Court, Court of Appeals, High Court, Industrial Court, Environment and
Land Court.
-The subordinate courts consisting of Magistrate Court, Courts Martial and Kadhi
Court.

SUPREME COURT
Establishment: The Supreme Court is established under Article 163 of the
Constitution as the final arbiter and interpreter of the Constitution.
Composition of the court: The Court comprises the Chief Justice, who is the
President of the Court, the Deputy Chief Justice, who is the Vice-President of the
Court and five other Judges.
Jurisdiction:
1. Exclusive original jurisdiction to hear and determine disputes relating to the
elections to the office of President arising under Article 140 of the Constitution.
2. Appellate jurisdiction to hear and determine appeals from the Court of Appeal
and any other court or tribunal as prescribed by national legislation. However
appeals can only be;
a) As a matter of right where the case involves interpretation or application of the
Constitution or
b) a matter certified by the Supreme Court or the Court of Appeal as one that
involves a matter of general public importance.
c) The Supreme Court may review a certification by the Court of Appeal and either
affirms, vary or overturn it.
3. Render advisory opinion at the request of the National Government, any State
organ, or any County Government with respect to any matter concerning
County Government.
4. Determine the validity of a declaration of a state of emergency; an extension of
such a declaration or any legislation enacted or action taken in consequence of
a declaration of a state of emergency.

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 5. Appeals from a tribunal constituted under Article 168 of the Constitution on
removal of Judges from office.
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 Improve access to justice.
Seat of the Court
The Court sits in Nairobi at the Supreme Court building and is deemed to be properly
constituted for purposes of its proceedings when five of the judges are sitting.
Being the highest court in the land, all other courts are bound by its decisions

COURT OF APPEAL
Will handle appeal cases from the High Court and as prescribed by Parliament.
It will constitute not less than 12 judges and will be headed by a President appointed
by the Chief Justice.

HIGH COURT
The High court of Kenya is established under article 165 of the constitution of Kenya.
It has supervisory jurisdiction over all other subordinate courts and any other
persons, body or authority exercising a judicial or quasi-judicial function.
After the promulgation of the constitution of Kenya 2010 and as part of the reforms of
the judiciary the High Court expanded to create a dedicated court to deal with issues
relating to Labour, Land and the Environment.
These courts were given autonomy at the High Court level.
Powers
1. The court has unlimited original jurisdiction in civil and criminal matters as per
article 165 3,(a) of the Constitution of Kenya 2010:
2. Jurisdiction to hear any question respecting the interpretation of the
constitution as per 165 3,(d),
3. Jurisdiction to determine whether a right or fundamental freedom in the bill of
rights has been violated, denied, infringed or threatened as per article 165 3,(b),
4. Jurisdiction to hear an appeal from the decision of a tribunal appointed under
the constitution to consider the removal of a person from office as per article
165 3,(c).

EMPLOYMENT & LABOUR RELATIONS COURT

The Industrial court is established pursuant of Article 162 (2) (a) of the Constitution of
Kenya 2010.
The Industrial Court is a superior court of record with the status of the High Court
and shall exercise jurisdiction throughout Kenya.
OBJECTIVE
For the purpose of:
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 1. Settling employment and Industrial relations disputes and
2. The furtherance, securing and maintenance of good employment and labour
relations in 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 Labour relations
including:-
(a) disputes relating to or arising out of employment between an employer and an
employee
(b) Disputes between an employer and a trade union.
(c) Disputes between an employer’s organization and a trade union’s organization,
(d) Disputes between trade unions,
(e) Disputes between employer organizations,
(f) Disputes between an employer’s organizations,
(g) Disputes between an employer’s organization and trade union,
(h) Disputes between a trade union and a member thereof,
(i) Disputes between an employer’s organization or a federation and a member thereof,
(j) Disputes concerning the registration and election of trade union officials, and (k)
disputes relating to the registration and enforcement of collective agreements.
ORDERS
In exercise of its jurisdiction, the court shall have power to make any of the following
orders:-
(i) interim preservation orders including injunctions in cases of urgency
(ii) a prohibitory order
(iii) an order for specific performance
(iv) a declaratory order
(v) An award of compensation in any circumstances contemplated under the
Industrial Court Act or any written Law.
(vi) An award of damages in any circumstances contemplated under the
Industrial Court Act or any written Law.
(vii) 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.
(viii) 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:-
(a) Decisions of the Registrar of trade unions, and
(b) Any other court, local tribunal or commission and prescribed under any Written
Law.
COMPOSITION OF THE COURT
The court shall consist of;
(a) The Principal Judge; and
(b) Such number of Judges as the President may, acting on the recommendations of
the Judicial Service Commission, appoints.
(1) The Principal Judge shall be elected in accordance with the procedure prescribed in
Article 165 (2) of the Constitution.
(2) 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.
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(3) The Principal Judge shall have supervisory powers over the Court and shall be
answerable to the Chief Justice.
(4) 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

An Act of Parliament to give effect to Article 162(2)(b) of the Constitution; to establish a
superior court to hear and determine disputes relating to the environment and the use
and occupation of, and title to, land, and to make provision for its jurisdiction
functions and powers, and for connected purposes.
SUBORDINATE COURTS
The courts below the High Court are referred to as Subordinate courts.

MAGISTRATE COURT
Article 169 1(a) of the constitution of Kenya 2010 creates the Magistrate court. This is
where majority of the judiciary’s cases are heard.
Magistrate courts are generally located in every district in Kenya.
Officers
The presiding judicial officer in Magistrate court could be a Chief Magistrate, Senior
Principal Magistrate, Principle Magistrate, Senior Resident Magistrate, or Resident
Magistrate.
Their authorities vary in administrative responsibility and range of fining and
sentencing abilities.
The Judicature Act is the statute passed by parliament detailing the varying powers
and jurisdiction of Magistrates and Judges.
KADHI COURT
Article 169 1(b) of the Constitution of Kenya 2010 creates the Kadhi court.
This is a court which hears civil matters relating to Islamic law.
The parties involved must all be followers of Islam and all must agree that the matter
to be decided under Islamic law.
The matter cannot be criminal in nature, matter must be civil in nature e.g. marriage,
Divorce, inheritance etc.
The court is headed by a Chief Kadhi and parliament is given the authority to enact
laws describing the guidelines, qualification and jurisdiction of this court.
Presided over by the Chief Kadhi and other Kadhis not fewer than three in number.
Appeals from Kadhi Court are heard by the High Court.
COURTS MARTIAL
Article 169 1(c) of the constitution of Kenya 2010 creates the Courts Martial. This is
the military court where matters involving members of the Kenya Defense Forces are
heard.
Appeals from this court are heard by the High Court.

Administration within the Judiciary

The chief administrator of the Supreme Court is the Chief Justice who will be the
president of the Supreme Court.
One of his responsibilities is to come up with procedures for running the courts.
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For example, the children Act gives the chief justice authority to come up with rules
on how proceedings involving children should take place.
Decisions on staffing, where new courts should be opened etc.
Certain situations dictate that the Chief Justice appoints a judge or panel of judges to
deal with a specific matter.
-Deputy President of the Supreme Court.
The deputy chief justice shall be the deputy president of the Supreme Court.
President of the court of Appeals
The courts of appeal judges elect a member to deal with administrative issues as well
as represent them in the Judicial Service Commission.
Principle Judge of the High Court.
The high court judges elect a member to deal with administrative issues and represent
High Court judges on the Judicial Service Commission.
Chief Registrar of the Judiciary.
Article 161 (2), c of the constitution of Kenya 2010 provides for the position of Chief
Registrar with the responsibility of being the chief administrator and accounting
officer of the Judiciary.
Registrar of the Supreme Court
Registrar of the Court of Appeal
Registrar of the High Court
Executive officer of Magistrate Court
Judicial Service Commission
An independent Judicial Service Commission has been set up to handle the
appointment of judges. They will recommend a list of persons to be appointed as
judges by the President.

TOPIC 3:
SOURCES OF LAW
The term “sources of law” has been interpreted by different writers in various ways. It
is thus necessary to distinguish between its various meanings and determine the
premises of each.
Meaning
1. “The sovereign from where the law emanates”;
2. “Where one must resort to get at law”.
THE SOURECES ARE CLASSIFIED BY SALMOND AS FOLLOWS
A. Material sources (the law derives its matter and not validity).
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 B. Formal sources (that from which a rule of law derives its force and validity).
Material sources
They are further classified as:
1. Legal sources(these are authoritative)
2. Historical sources(these are unauthoritative e.g. writings of eminent jurists,
foreign judgments)
Legal sources
Legal sources are further classified as:
1. Legislation(enacted law)
2. Precedent(case law)
3. Customary law(law based on customs)
4. Conventional (based on agreements e.g. local laws, treaties).

CUSTOM
According to Salmond, custom is the embodiment of those principles which have
commended themselves to the national conscience as principles of justice and public
utility.
According to Carter: “The simplest definition of custom is that it is the uniformity of
conduct of all persons under like circumstances.’’
According to Holland, custom is a generally observed course of conduct.
Requisites of a valid custom
In order to be a valid custom, it must conform to certain requirements laid down by
the law.
These include:
1. Reasonableness: it must be remembered that the authority of a prevailing
custom is never absolute, but it is authoritative provided it conforms to the
norms of justice and public utility/ policy.
A general observance of a custom leads to the presumption that it has a
rational basis and that it is useful and convenient. The party disputing the
validity of a custom must satisfy the court of its unreasonableness.
2. Consistency: a custom to be valid must be in conformity with statute law. It
should not be contrary to an Act of Parliament.
3. Compulsory observance: a custom to be legally recognized as a valid custom
must be observed as of right. It must have been followed by all concerned
without recourse to force and without the necessity of permission of those who
are adversely affected by it. Before accepting a custom as a binding source of
law, the Court should satisfy itself that it had transformed into an un
mistakable conviction of the community as to the rights and obligations of its
members towards one another.
4. Continuity and immemorial antiquity: for a custom to be valid, it should
have been continuously in existence from the time immemorial. The long
existence of a custom gives it the force of a right to make it legally recognizable.
5. Certainty: in order to prove the existence of a custom since time immemorial, it
must be shown that it is being observed continuously and uninterruptedly with
certainty.
6. Public policy: a custom should not be opposed to public policy.
7. The custom must be general or universal: According to Carter: “Customs is
effectual only when it is universal or nearly so. In the absence of unanimity of
opinion, custom becomes powerless or rather does not exist.”
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 8. The enjoyment of a custom must be a peaceable one: If that is not so,
consent is presumed to be wanting in it.
KINDS OF CUSTOMS
They are as follows:
1. Conventional custom(usage, certain trade practices);
One whose authority is conditional on its acceptance and incorporation in the
agreement between the parties to be bound by it. It is an established practice
which is legally binding because it has been expressly or impliedly incorporated
in a contract between the parties concerned.
Certain conditions must be satisfied before a court is entitled to incorporate the
usage into contracts. The usage must be so well-established as to be notaries.
This is necessary because without notoriety, it will be impossible to show that
both parties were contracting in the right of the usage. The usage cannot alter
the general law of the land whether statutory or common law. The reason is
that usage derives its force from its incorporation into an agreement and can
have no power to the alter law than an express agreement. Usage must be
reasonable. A custom or usage will not be enforced in a particular case if it
purports to nullify or vary the express terms of the contract.
2. Legal custom: one whose legal authority is absolute. It possesses the force of
law. The parties effected may agree to a legal custom or not but they are bound
by the same. Legal customs are of two kinds:
a) Local (practiced in a particular locality only)
b) General (practiced throughout the realm).
Local customs apply only to a locality and general custom applies to the whole
country.

PROFESSIONAL OPINIONS AND RELIGION

Professional opinions are also a source of law. These can be discussed under
the heads of the obiter of judges, general opinions of the legal profession and
opinions of writers upon legal subjects.
(1) The obiter dicta are the statements of law made by a judge in the course of a
decision, arising naturally out of the circumstances of the case, but not
necessary for the decision. The value of these dicta as a source of law
depends upon the reputation of the judge and the relation and the relation
of the law upon the specific point in question and upon similar topics.
(2) The legal profession consists of the judges, the practicing lawyers and
teachers of law. These branches of the legal profession exercise a powerful
influence upon the development of law. Many existing rules of law owe their
origin to the support of the legal profession.
(3) The opinions of the writers of text-books also help the growth of law. It has
been particularly son the case of international law. Its rules have frequently
depended upon the opinion of jurists.

RELIGION
Religion is also a source of law. According to Sir Henry Maine and Sir James Frazer,
the religion fear of civil was the principle instrument in securing uniformity of conduct
in primitive society at a time when law did not enjoy an independent existence.
In the case of cowan v. Milbourne it was held that “Christianity is part of the law of
England”.
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AGREEMENT
According to Sir John Salmond, an agreement is also a source of law as to gives rise to
two kinds, legal and conventional law.
Agreements play an important part in international law. There may be an agreement
among a large number of states to follow a particular procedure with regard to a
certain matter.

LEGISLATION AS A SOURCE OF LAW

The word Legislation means “making of law”
From the latin words, legis meaning “law” and latum meaning “to make or set”.
Definitions
1. Austin, legislation includes activities which result into law making or amending,
transforming or inserting new provisions in the existing law”.
2. Salmond, legislation is that source of law which consists in the declaration of
legal rules by a competent authority.
Kinds of Legislation
Legislation may be either:
1. Supreme Legislation:- legislation that proceeds from the sovereign power in the
state and is incapable of being repealed, annulled or controlled by any other
legislative body.
2. Subordinate Legislation:- proceeds from any authority other than the sovereign
authority
Validity of Subordinate Legislation
In order that the exercise of delegated legislative power may be valid, certain
conditions must be satisfied. These conditions are:
1) The parent Act must be valid:- the Act under which the power to make
subordinate legislation is exercised must be valid.
2) The delegation clause within the parent Act must be valid.
3) The statutory instrument so made, must be in conformity with the delegation
clause in point of substance, procedure and form.
4) The statutory instrument must not violate certain general norms laid down by
judicial decision e.g. norms regarding ouster of court jurisdiction.
5) The statutory instrument must not violate any of the fundamental rights
guaranteed by the constitution or any other provision of the constitution.
Kinds of subordinate legislation

The chief forms of subordinate legislation are as follows:

1. Colonial legislation: the British colonies and other dependencies were
conferred limited powers of self-government in varying degrees by the
imperial legislation.
2. Executive legislation:- the legislature quite often delegates it’s rule making
powers to certain departments of the executive organs of the Government.
They are known as administrative laws which are commonly called ‘public
law’.
3. Judicial legislation: - in certain cases, the legislative power of rule-making is
delegated to the judiciary and the superior courts are authorized to make
rules for regulation of their own procedure in exercise of this power.
4. Municipal legislation (county):- county authorities are allowed within their
areas to make by-laws for limited purposes such as revenue.
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 5. Autonomous legislation: - the state may occasionally allow private entities or
bodies i.e. universities, companies, corporations to make by- laws for
regulating their conduct and procedures within the stated perimeters.
Legislation compared to other sources of law
Advantages of Legislation over Precedence
(i) Legislation is both constitutive and abrogative, but precedent is merely
constitutive.
(ii) Legislation is not only a source of new law but also the most effective
instrument of abolishing the existing law.
(iii) Legislation is based on the principle of division of Labour and consequently
enjoys the advantages of efficiency. The legislative and judicial functions are
separated and consequently both of them are done better by different
organs.
(iv) Legislation satisfies the requirements of natural justice that laws shall be
known before they are enforced. Law is declared in the form of legislation
and the same is later on enforced by the courts. Law is formally declared to
the people and if after that they dare to violate the same, they are punished.
However, that is not the case with precedent. It is created and declared in
the very act applying and enforcing it.
(v) Legislation makes rules for cases that have not yet risen but precedent must
wait until the actual concrete incident comes before the courts for decision.
Precedent is dependent on the accidental course of litigation but legislation
is independent of it.
(vi) Legislation is superior in form to precedent. It is brief, clear, easily
accessible and knowable. Case- law is buried from sight and knowledge in
the huge and daily growing mass of the records of litigation.
Codification
According to the oxford dictionary: Code is a systematic collection of statutes, body
of laws, so arranged as to avoid inconsistency and overlapping.”
Codification implies collection, compilation, methodical arrangement, systematization
and reduction to coherent form the whole body of law on any particular branch of it so
as to present it in the form of a systematic, clear and precise statement of general
principle and rules.
KINDS OF CODIFICATION
Codes may be of the following kinds:
(i) A creative code: - that which makes a law for the first time without any
reference to any other law. It is law-making by legislation. The Penal Code
belongs to this category.
(ii) A consolidating code: - that code which consolidates the whole law-
statutory, customary and precedent-on a particular subject and simplifying
the law. The code of Justinian belongs to this category. The same is the case
with the Indian Transfer of property Act, 1882.
(iii) A code may be both creative and consolidating. It may make new law as well
as consolidate the existing law on a particular subject. The recent legislation
in Marriage Act is an example of this kind.
MERITS
(I) Law can be known with the certainty. The law of the contract in Kenya can
be found by a reference to the contract Act .Likewise, the rules of evidence in
the country can be known by a study of the rules of the Evidence Act. The
certainty of law avoids confusion in the public mind.
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 (II) The evils of judicial legislation can be avoided. According to Macaulay
judge-made law in a country where there is an absolute government.
(III) Codification is necessary to preserve the customs which are suited to the
people of a country.
(IV) The codification of law is necessary to bring about a sense of unity in the
country.
DEMERITS
(i) Codification brings rigidity into the legal system. It cramps and impedes the
free growth of law.
(ii) Codification results in the regimentation of the life of the people.A code give
a uniform law to the whole country. It does not bother about the differences
in the sentiments, convictions,aspirations, customs and traditions of the
people living in different parts of the country.
(iii) A code is the work of many persons and no wonder the provisions of a code
are found to be incoherent. However, if the work is done by competent
persons, this defect can be avoided to a greater extent.
(iv) Codification makes the law simple and thereby enables the knaves to
flourish. They know the law and before committing a crime, they can provide
against the same.
(v) A code is likely to disturb the existing rights and duties of the people by
creating new rights and duties in place of the old ones.
(vi) No code can be complete and self-sufficing. In course of time, every code is
overlaid with an accumulating mass of comment and decisions.

CASE LAW & JUDICIAL PRECEDENT

Precedent as source of law

Judicial precedents are an important source of law. They have enjoyed high
authority at all times and in all countries. This is particularly so in the case of
England and other countries which have been influenced by English
jurisprudence.
Definition
Salmond : 1. Reported case law which may be cited and followed by the court.
2. That case law which not only has a binding authority but must also be
followed
Circumstances which destroy or weaken the binding force of precedent
(i)Abrogated Decision. A decision ceases to be binding if the statute or statutory
rule inconsistent with it is subsequently enacted, or it is reversed or overruled
by a higher court. Reversal occurs when the same decision is taken on appeal
and is reversed by the appellate court.
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 (ii) Affirmation or Reversal on Different Ground.- It sometimes happens that a
decision is affirmed or reversed on appeal on a different points. Suppose a case
is decided in the court of Appeal on ground A and then goes on appeal to the
Supreme Court which decides it on ground B, nothing been said upon A.
(iii)Ignorance of statute.- A precedent is not binding if it was rendered in
ignorance of a statute or a rule having the force of a statute, i.e delegated
legislation. Similarly, a court may know of the existence of the statute or rule
and yet not appreciate its relevance to the matter in hand.Such a mistake also
vitiates the decision. Even a lower court cease to follow a precedent on this
ground.
(iii)Inconsistency with Earlier Decisions of Higher Court.-A precedent loses its
binding force if the court that decided it overlooked an inconsistent decision of a
higher court. For example, if the Court of Appeal decides a case in ignorance of
a decision of the Supreme Court which went the other way, the decision of the
court of Appeal is per incuram and is not binding either on itself or on lower
courts.
(v)Inconsistency Between Earlier Decision of the same Rank---A court is not
bound by its own previous decisions that are in conflict with one another. The
court of Appeal and other courts are free to choose between conflicting
decisions, even though this might amount to preferring an earlier decision to a
later decision, preferring an unreported decision to a reported decision and
preferring a decision of a court of coordinate jurisdiction to its own decision.
(iv)Precedent sub silentio or not Fully Argued.- When a particular point involved
in a decision is not taken notice of and is not argued by a counsel, the court
may decide in favour of one party, whereas if all the points had been put
forth,the decision may have been in favour of the other party. Hence such a rule
is not an authority on the point which had not been agued and this point is
said to pass sub silentio.
(vii) Decisions of Equally Divide courts. Where an appellate court is equally
divided,the practice is to dismiss the appeal.The rule adopted in the
Supreme Court is that the decision appealed from becomes the decision of
the Supreme Court.
(viii) Erroneous Decision. Decisions may also err by being founded on wrong
principles or by conflicting with fundamental principled of common law.
Circumstances which increase the authority of a precedent
1. The number of judges constituting the Bench and their eminence is a very
important factor in increasing the authority of a precedent.
2. To some extent, the eminence of the lawyers who argued the case enhances the
authority of a precedent.
3. A unanimous decisions carries more weight.
4. Affirmation, approval or following by other courts, especially by higher tribunal.
5. If an Act is passed embodying the law in a precedent gains an added authority,
6. The lapse of time to the authority of a precedent
KINDS OF PRECEDENTS
(1) Authority and persuasive
According to salmond,an authoritative precedent is one which judges must
follow whether they approve of it or not.
A persuasive precedent is one which the judges are under no obligation to
follow but which they will take into consideration and to which they will attach
great weight as it seem to them to deserve.
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 Authoritative precedents are the legal source of law and persuasive precedents
are merely historical.
(2) Absolute and conditional precedents
Authoritative precedents are of two kinds, absolute and conditional.
In the case of absolutely authoritative precedents, they have to be followed by
the judges even if they do not approve of them. They are entitled to implicit
obedience.
In the case of authoritative precedents having a conditional authority, the
courts can disregards them under certain circumstances, Ordinarily,they are
binding but under special circumstances, they can be disregated.
(3) A declaratory precedent is one which is merely the application of an already
existing rule of law.
(4) An original precedent is one which creates and applies a new rule. In the case of
a declaratory precedent, the rule is applied because it is already law. In the case
of an original precedent, it is law for the future because it is now applied.

SUPERIOR COURTS
Supreme Court
163(1)There is established the Supreme Court, which shall consists of-
(a) The Chief Justice, who shall be the president of the court;
(b) The Deputy Chief justice ‘who shall-
(i)deputize for the chief justice; and
(ii) Be the vice-president of the court; and
(C) Five other judges.
(2)The Supreme Court shall be properly constituted for the purposes of its
proceedings if it is composed of five judges.
(3)The Supreme Court shall have-
(a) Excusive original jurisdiction to hear and determine disputes relating to the
elections to the office of president arising under Article 140; and
(b) Appellate jurisdiction to hear and determined appeals from-
(i) The court of Appeals; and
(ii) Any other court or tribunal as prescribed by national legislation.
(4) Appeals shall lie from the court of Appeal to the supreme Court-
(a) As of right in any case involving the interpretation or application of this
constitution; and
(b) 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).
(5)A certification by the court of appeal under clause (4)(b) may be reviewed by
the Supreme Court, and either affirmed, varied or overturned.
(6)The Supreme Court may give an advisory opinion at the requested of the
national government, any state organ, or any county government with respect
to any matter concerning county government.
(7)All courts, other than the Supreme Court, are bound by the decisions of the
Supreme Court.
(8)The Supreme Court shall make rules for the exercise of its jurisdiction.

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(9)An Act of parliament may make further provision for the operation of the
Supreme Court.
Court of appeal
164 (1)There is established the court of appeal, which-
(a)shall consist of the number of judges, being not fewer than twelve, as may be
prescribed by an Act of parliament; and
(b) Shall be organized and administered in the manner prescribed by an Act of
parliament
(2)There shall be a president of the court of Appeal who shall be elected by the
judges of the court of Appeal from among themselves.
(3) The court of Appeal has jurisdiction to hear appeals from-
(a) The High Court; and
(b) Any other court or tribunal as prescribed by an Act of parliament.
High court
165 (1)There is established the High Court, which-
(a)Shall consist of the numbers of judges prescribed by an Act of parliament;
and
b) shall be organized and administered in the manner prescribed by an Act of
parliament.
(2)There shall be principal judge of the High Court, who shall be elected by the
judges of the High Court from among themselves.
(3) The High Court shall have-
(a) unlimited original jurisdiction in criminal and civil matter;
(b)jurisdiction to determine the question whether a right or fundamental
freedom in the Bill of Rights has been denied,violated,infringed or threatened;
(c) Jurisdiction to hear an appeal from a decision of a tribunal appointed under
this constitution to consider the removal of a person from office, other than a
tribunal appointed under Article 144;
(d) Jurisdiction to hear any question respecting the interpretation of this
constitution including the determination of-
(i) The question whether any law is inconsistent with or in contravention of this
constitution;
(ii) The question whether anything said to be done under the authority of this
constitution or of any law is inconsistent with, or in contravention of, this
constitution;
(iii)any matter relating to constitution powers of state organs in respect of
county governments and any matter relating to the constitutional relationship
between the levels of governments; and
(iv) A question relating to conflict of laws under Article 191; and
(e) Any other jurisdiction, original or appellate, conferred on it by legislation.
(4)Any matter certified by the court as raising a substantial question under
clause (3)(b) or(d) shall be heard by an uneven number of judges, being not less
than three, assigned by the chief justice.
(5)The High Court shall not have jurisdiction in respect of matter-

25
(a) Reserved for the exclusive jurisdiction of the supreme court under this
constitution; or
(b) Failing within the jurisdiction of the courts contemplated in Article 162(2).
(6) The High Court has supervisory jurisdiction over the subordinate courts
and over person, body or authority exercising a judicial or quasi-judicial
function, but not over a superior court’
(7)the High Court may call for the recorded of any proceeding before any
subordinate court or person, body or authority referred to clause (6),and may
make any order or give any direction in considers appropriate to ensure the fair
administration of justice.
(1)The president shall appoint-
(a)the chief justice and the Deputy chief justice, in accordance with the
recommendation of the judicial service commission, and subject to the
approval the National Assembly; and
(b) All other judges, in accordance with the recommendation of the judicial
service commission.
(2)Each judge of superior court shall be appointed from among persons who-
(a) Hold a law degree from relevant recognized university, or are advocates of
the High Court of Kenya, or posses an equivalent qualification in a common-
law jurisdiction;
(b)posses the experience required under clause(3)to(6) as applicable,
irrespective of whether that experience was gained in Kenya or in another
commonwealth common-law jurisdiction; and
(c) Have a high moral character, integrity and impartiality.
(3)The Chief justice and other judges of the Supreme Court shall be appointed
from among person who have-
(a) At least fifteen years experience as a superior court judge; or
(b)at least fifteen years experience as a distinguished academic ,judicial officer,
legal practitioner or such experience in other relevant legal field; or
©held the qualifications mentioned in paragraph (a) and (b) for a period
amounting, in the aggregate, to fifteen years;
(4)Each judge of the court of appeal shall be appointed from among persons
who have-
(a) At least ten years experience as a superior court judge; or
(b)at least ten years experienced as a distinguished academic or legal
practitioner or such experience in other relevant legal field; or
(c) held the qualification mentioned in paragraphs (a) and (b) for a period
amounting, in the aggregate, to ten years
(5) Each judge of the High Court shall be appointed from among persons who
have
(a) At least ten years experience as a superior court judge or professionally
qualified magistrate; or
(b) At least ten years experience as a distinguished academic or legal
practitioner or such experienced in other legal field; or

26
(c) held the qualifications specified in paragraphs (a) and (b) for a period
amounting in the aggregate, to ten years.
(1)A judge shall retire from office on attaining the age of seventy years, but may
elect to retire at any time after attaining the age of sixty-five years.
(2)The chief justice shall hold office for a maximum of ten years or until retiring
under clause (1), whichever is (1), is the earlier.
(3)If the Chief justice’s term of office expires before the chief justice retires
under clause (1), the chief justice may continue in office as a judge of the
Supreme Court.
(4)If, on the expiry of the term of office of a chief justice, the chief justice opts to
remain on the Supreme Court under clause (3), the next person appointed as
chief justice may be selected in accordance with result in there being more
than the maximum permitted number of Supreme Court judges holding office.
(5)The chief justice and any other judge may resign from office by giving notice,
in writing to the president.
(1)A judge of a superior court may be removed from office only on the grounds
of-
(a) A breach of a code of conduct prescribed for judges of the superior courts by
an Act of parliament;
(b) Inability to perform the functions of office arising from mental or physical
incapacity;
(c) Bankruptcy;
(d) Incompetence; or
(e) Gross misconduct or misbehavior.
(2)The removal of a judge may be initiated only by the judicial service
commission acting on its own motion, or on the petition of any person to the
judicial service commission.
(3)A petition by a person to the judicial service commission under
clause(2)shall be in writing, setting out the alleged facts constituting the
ground for the judges removal
(4)The judicial service commission shall consider the petition and, if it satisfied
that the petition discloses a ground for removal under clause (1), sent the
petition to the president.
(5)The president shall, within fourteen days after receiving the petition,
suspend the judge from office and, acting in accordance with the
recommendation of the judicial service commission-
SUBORDINATES COURTS
(1)The subordinate’s courts are-
(a) The magistrates’ courts;
(b) The kadhi’s courts
(c) The court martial; and
(d) Any other court or local tribunal as may be established
Kadhi’s Court
(1)There shall be a chief kadhi and such number, being not fewer than three of
other kadhi’s as may be prescribed under an Act of Parliament

27
(2)A person shall not be qualified to be appointed to hold or act in the office of
kadhi unless the person-
(a) Professes the Muslim religion; and
(b) Possesses such knowledge of the Muslim law applicable to any sects of
Muslim as qualifies the person, in the opinion of the judicial service
commission, to hold a kadhi’s court.
(3)The Chief Kadhi and the other kadhis,or the chief kadhi and such of the
other kadhis(not being fewer than three in number)as may prescribed under an
Act of parliament, shall each be empowered to hold kadhi’s court having
jurisdiction within Kenya.
(5)The jurisdiction of a kadhi’s court shall be limited to the determination of
question 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 Kadhi’s courts.
JUDICIAL SERVICE COMMISSION
171 (1) There is established the judicial service commission.
(2)The commission shall consist of-
(a) One Supreme Court judge elected by the judges of the Supreme Court;
(b) The chief justice, who shall be the chairperson of the committee;
(c) One court of appeal judge elected by the judge of the court of appeal;
(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
(e) The Attorney-General;
(f)two advocates, one a woman and one a man, each of whom has at least
fifteen years experience, elected by members of the statutory body responsible
for the professional regulation of advocates;
(g) One person nominated by the public service commission; and
(h) One woman and one man to represent the public not being lawyers,
appointed by the president with the approval of the National Assembly.
(3)The Chief Registrar of the judiciary shall be secretary to the commission.
(4)Members of the commission, apart from the chief justice and the Attorney-
General, shall hold office provided that they remain qualified, for the term of
five years and shall be eligible to be nominated for the one further term of five
years.
(1)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-
(a) Recommend to the president persons for appointment as judges;
(b) Review and make recommendations on the conditions of service of
(i) Judges and judicial officers, other than their remuneration; and
(i) The staff of the judiciary;
(c)appoint, receive complaints aginst,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;

28
(d) Prepare and implement programmers for the continuing education and
training of judges and judicial officers and
(e) Advise the national government on improving the efficiency of the
administration of justice.
(2)In the performance of its functions, the commission shall be guided by the
following-
(a) Competitiveness and transparent process of appointment of judicial officers
and other staff of the judiciary; and
(b) The promotion of gender equality.
(1)There is established a fund to be known as the judiciary Fund which shall
be administered by the chief Registrar of the judiciary.
(2)The fund shall be used for administrative expenses of the judiciary and such
other purposes as may be necessary for the discharged of the functions of the
judiciary.
(3)Each financial year, the Chief Registrar shall prepare estimates of
expenditure for the following year, and submit them to the National Assembly
for approval.
(4)On approval of the estimates by the National Assembly, the expenditure of
the Judiciary shall be a charge on the consolidated Fund and the fund shall be
paid directly into the judiciary Fund.

TOPIC 4
NATURE OF CONTRACT
OBJECT OF THE LAW OF CONTRACT
The law of contract is the branch of law which determines the circumstances in which
promises made by the parties to a contract shall be legally binding on them. Its rules define the
remedies that are available in a court of law against a person who fails to perform his contract,
and important branch of business law. It affects all of us in one way or the other. It is,
however, of particular importance to people engaged in a trade, commerce and industry as bulk
of their business transactions are based on contracts.
The law of contract introduces definiteness in business transactions.
It may be said that the purpose of the law of contract is to ensure the realization of reasonable
expectation of the parties into a contract.
DEFINITION OF A CONTRACT
-A contract is an agreement made between two parties which the law will enforce.
–SIR WILLIAM ANSON defines a contract as a legally binding agreement between two or more
persons by which rights are acquired by one or more to acts or forbearance.
-ACCORDING TO SALMOND, a contract is “an agreement creating and defining obligations
between the parties.
BASIC ELEMENTS AND PRINCIPLES OF LAW OF CONTRACT
In order to become a contract, an agreement must have the following essential elements:
1. OFFER AND ACCEPTANCE: There must be two parties to an agreement, i.e. One party
making the offer and other party accepting it. The terms of the offer must be definite and the
acceptance of the offer must be absolute and unconditional. Acceptance must also be
according to the mode prescribed and must be communicated to the offeror.
2. INTENTION TO CREATE LEGAL RELATIONSHIP: When two parties enter into an
agreement, their intention must be to create legal relationship between them. If there is no

29
such intention on the part of parties, there is no contract between them .Agreement of a social
or domestic nature do not contemplate legal relationship, and such they are not contracts.
Example: A husband promised to pay his wife a household allowance of $30 every month, Later
the parties separated and the husband failed to pay the amount .The wife sued for the
allowance.Held,agreements such as these were outside the realm of contract altogether
[Balfour,(1919)2 K.B.571]
3. LAWFUL CONSIDERATION: An agreement to be enforceable by law must be supported by
consideration .Consideration ‘means an advantage or benefit moving from one party to the
other. The agreement is legally enforceable only if both parties give something, and get
something in return. Consideration need not necessarily be in cash or kind, it may be an act or
abstinence (abstaining from doing something) or promise to do or not to do something. It may
be past, present or future .But it must be real and lawful.
4. CAPACITY OF PARTIES (COMPETENCY): The parties to an agreement must be capable of
entering into a valid contract. Every person is competent to contract if he:
(a) Is of the age of majority, (b) is of sound mind, and(C)is not disqualified from contracting by
any law to which he is subject.
Flaws in capacity to contract may arise from minority, lunacy, idiocy, drunkenness and status.
If a party suffers from any flaw in capacity, the agreement is not enforceable except in some
special cases.
5. FREE AND GENUINE CONSENT: It is essential to the creation of every contract that there
must free and genuine consent of the parties to the agreement. The consent of the parties is
said be free when they are of the same mind on all the material terms of the contract. The
parties are said to be of the same mind when they agree about the subject-matter of the
contract in the same sense and at the same time.
There is absence of free consent if the agreement is induce by coercion, undue influence, fraud,
misrepresentation.
6. LAWFUL OBJECT. The object o f the agreement must be lawful. In other words, it means
that the object must not be:
(a)Illegal (b) Immoral, or (c) opposed to public policy).If an agreement suffers from any legal
flaw, it would be not be enforceable by law.
7. AGREEMENT NOT DECLARED VOID. The agreement must not have been expressly
declared void by law of the country.
8. CERTAINITY AND POSSIBILITY OF PERFOMANCE: The agreement must be certain and
not vague or indefinite .if it is vague and it is not possible to ascertain its meaning it cannot be
enforced.
Example: A agrees to sell to B “a hundred tons of oil “there is nothing whatever to show what
kind of oil is intended. The agreement is void for uncertainty
The terms of the agreement must also be such as are capable of performance. Agreement to do
an act impossible in itself cannot be enforced
9. LEGAL FORMALITIES: A contract may be made by words spoken or written. As regards the
legal effects, there no difference between a contract in writing and a contract made by word of
mouth. It is however in the interest of the parties making the contract that it should be in
writing .There are some other formalities also which have to be complied with in order to make
an agreement legally enforceable. In some cases, the document in which the contract is
incorporated is to be stamped, in some other cases a contract, besides being a written one, has
to be registered. Or stamped and made in the presence of witnesses.
CLASSIFICATION OF CONTRACTS
Contacts may be classified according to their:
(1) Validity
(2)Formation or
(3)Performance
A. CLASSIFICATION ACCORDING TO VALIDITY
VALID CONTRACT: A contract is based on an agreement. An agreement became a contract
when all the essential elements pertaining to enforceability at law are adhered to, in such a

30
case, the contract is a valid contract. If one or more of these elements is missing, the contract
is either voidable, void, illegal or unenforceable.
VOIDABLE CONTRACT: An agreement which Is enforceable by law at the option of one or
more of the parties thereto, but not at the option of the other or others is a voidable contract.
This happens when the essential element of free consent in a contract is missing .when the
consent of a party to a contract is not free I.e. it is caused by coercion, undue influence,
misrepresentation or fraud ,the contract is voidable at his option,
The party whose consent is not free may either rescind (avoid or repudiate) the contract if he so
desires, or elect to be bound by it. A voidable contract continues to be valid till it is avoided by
the party entitle to do so.
Example. A promised to sell his car to B for Kshs.500,000/=.His consent is obtained by use of
force. The contract is voidable at the option of A. He may avoid the contract or elect to be
bounded by it.
When a person at whose option a contract is voidable rescinds it,the other party thereto need
not perform any promise therein contained which he is the promisor.
If the party rescinding the contract has received any benefit under the contract from another
party to such contract he shall restore such benefit, so far as may be, to the person from whom
it was received.
VOID AGREEMENT: An agreement not enforceable by law is said to be void. Such agreement
does not create any legal rights or obligation. It is a nullity and is destitute of legal effects
altogether, FOR EXAMPLE, an agreement with a minor or an agreement without consideration
VOID CONTRACT: A contract which ceases to be enforceable by law is said to be void when it
ceases to be enforceable. A contract when originally entered into, may be valid and binding on
the parties’ e.g. A contract to import goods from a foreign country. It may subsequently
become void when a war breaks out between the importing country and the exporting country
ILLEGAL AGREEMENT: An illegal agreement is one which transgresses some rule of basic
public policy or which is criminal in nature or which is immoral. Such an agreement is a
nullity and has much wider import than a void contract.
All illegal agreements are void but all void agreements or contracts are not necessarily illegal.
An illegal agreement is not only void as between the immediate parties but has this further
effect that even the collateral transactions to it become tainted with illegality.
UNENFORCEABLE CONTRACT: An unenforceable contract is one which cannot be enforced in
a court of law because of some technical defect such as absence of writing or where the remedy
has been barred by lapse of time. The contract may be carried out by the parties concerned,
but in the event of breach or repudiation of such a contract, the aggrieved party will not be
entitled to the legal remedies.
B. CLASSIFICATION ACCORDING TO FORMATION
A contract may be (a) made in writing or by word of mouth, or (b) inferred from the conduct of
the parties or the circumstances of the case.
Contracts may be classified according the mode of their formation as follows:
EXPRESS CONTRACT: If the terms of contract are expressly agreed upon (whether by words
spoken or written) at the time of formation of the contract, the contract is said to be an express
contract.
Where the offer or acceptance of any promise is made in words, the promise is said to be
express. An express promise results in an express contract.
IMPLIED CONTRACT: An implied contract is one which is inferred from the acts or conduct of
the parties or cause of dealings between them.
Where the proposal and acceptance of any promise is made otherwise than in words, the
promise is said to be implied. An implied promise results in an implied contract. Example. (a)
There is an implied contract when A
1. Gets into a public bus, or
2. Takes a cup of tea in a restaurant.
QUASI CONTRACT: Strictly speaking a quasi-contract is not a contract at all. A contract is
intentionally entered into by the parties, a quasi-contract on the other hand, is created by law.

31
It resemble a contract that legal obligation is imposed on a party who is required to perform it.
It rests on the ground of equity that, a person shall not be allowed to enrich himself unjustly
at the expense of another.
Example: ‘T’, a tradesman, leaves goods at ‘C’s by mistake. ‘C’ treats the goods as his own.’ C’
is bound to pay for the goods.
C. CLASSIFICATION ACCORDING TO PERFOMANCE
To the extent to which the contracts have been performed, contracts may be classified as:
EXECUTED CONTRACT: ‘executed’ means that which is done. An executed contract is one in
which both the parties have performed their respective obligations.
Example :’A’ agrees to paint a picture for ‘B’ for Kshs.1000/= when ‘A’ paints the picture and
‘B’ pays the price ,i.e. when both the parties performs their obligations, the contract is said to
be executed.
EXECUTORY CONTRACT: Means that which remains to be carried into effect. An executor
contract is one in which both the parties are yet to perform their obligations.
Example: ’A’ agrees to paint a picture for ‘B’ for Kshs.1000/= the contract is executor if ‘A’ has
not yet painted the picture and ‘B’ has not paid the price.
PARTLY EXECUTED AND PARTLY EXECUTORY: Example: ’A’ agrees to paint a picture for
‘B’ for Kshs.1000/=Thus if ‘B’ has paid the price to ‘A’ and ‘A’ has not yet painted the picture,
the contract is executed as to ‘B’ and executory as ‘A’
UNILATERAL OR ONE –SIDED CONTRACT: A unilateral or one –sided contract is one in
which only one party has to fulfill his obligation at the time of the formation of the contract ,the
other party having fulfilled his obligation at the time of the contract or before the contract
comes into existence.
Such contracts are also known as contracts with executed consideration.
Example. ‘A’ permits a railway coolie to carry his luggage and place it in the carriage. A
contract comes into existence as soon as the coolie has already performed his obligation. Now
only ‘A’ has to fulfill his obligation, I.e. Pay the reasonable charges to the coolie
BILATERAL CONTRACT: A bilateral contract is one in which the obligations on the part of
both the parties to the contract are outstanding at the time of the formation of the contract. In
this sense, bilateral contracts are similar to executory contracts and are also known as
contracts with executory consideration.
FORMATION OF CONTRACT
OFFER AND ACCEPTANCE
At the inception of every agreement, there must be a definite offer by one person to another
and its unqualified acceptance by the person to whom the offer is made.
An offer is a proposal by one party to another to enter into a legally binding agreement with
him.
A person is said to have made a proposal, when he, “signifies to another his willingness to do
or to abstain from doing anything with a view to obtaining the assent of that other to such act
or abstinence.
FOR EXAMPLE: ‘A’ says to ‘B’, “Will you purchase my car for Kshs. 500,000/=?’’ ‘A’, in this
case, is making an offer to ‘B’ as he signifies to ‘B’ his willingness to sell his car to ‘B’ for Kshs.
500,000/= with a view to obtaining ‘B’s assent to purchase the car.
The person making the offer is known as the offeror, proposer, or promisor and the person to
whom it is made is called the offeree or proposee. When the offeree accepts the offer, he is
called the acceptor or promisor.
HOW AN OFFER IS MADE
EXPRESS OFFER: it is an offer made by express words, spoken or written. FOR EXAMPLE,
when ‘A’ says to ‘B’, “Will you purchase my house at Nakuru for Kshs. 1,500,000/=?” or when
‘A’ advertises in a newspaper offering Kshs. 50,000/= to anyone who returns his lost dog, there
is an express offer.
IMPLIED OFFER: An offer implied from the conduct of the parties or the circumstances of the
case. Thus when a transport company runs a bus on a particular route, there is an implied

32
offer by the transport company to carry passengers for certain fare.The acceptance of the offer
is complete as soon as a passenger boards the bus.
SPECIFIC OFFER: an offer made to a definite person, It can be accepted only by the person to
whom it is made.
GENERAL OFFER: an offer made to the world at large, any person with notice of the offer may
accept the offer. When the offer is accepted by a particular person, there is a contract between
the offerer and that particular person. If a large number of persons accept the offer, there are
as many contracts as the number of persons accepting the offer.
In the case of [CARLILL V. CARBOLIC SMOKE BALL CO] The Company advertised in several
newspapers that a reward would be given to any person who contracted influenza after using
the smoke balls of the company according to its printed directions .One Mrs. Carlill used the
smoke balls according to the directions of the company but contracted influenza. HELD, she
could recover the amount as by using the smoke balls she had accepted the offer [carlill v.
carbolic smoke Ball co. (1893) 1 O B. 256].
LEGAL RULES AS TO OFFER
(1). Offer must be such as in law is capable of being accepted and giving rise to legal
relationship: A social invitation, even if it accepted, does not create legal relations because it is
not so intended. An offer, therefore, must be such as would result in a valid contract when it is
accepted.
(2). Terms of offer must be definite, unambiguous and certain and not loose and vague: If
the terms of an offer are vague or indefinite, its acceptance cannot create any contractual
relationship. E.g. A says to B. “ I will sell you a car”. A owns 3-different cars. The offer is not
definite.
(3) Offer must be communicated: An offer, to be complete, must be communicated to the
person to whom it is made. Unless an offer is heard of or known, there can be no acceptance of
it. An acceptance of an offer in ignorance of the offer is no acceptance and does not confer any
rights on the acceptor.
Example. ‘S’ offered a reward anyone who returned his lost dog.’F’ brought the dog to ‘S’
without having heard of the offer. Held, ‘F’ was not entitled to the reward [fitch v.snedaker,
(1868) 38 N.Y. 288].
(4) Offer must be made with a view to obtaining the assent: The offer to do or not to do
something must be made with a view to obtaining the assent of the intention of making an
offer.
(6). Offer should not contain a term the non-compliance of which may be assumed to
amount to acceptance: thus a man cannot say that if it is not communicated by certain time,
the offer would be considered as accepted.
For example, where ‘A’ writes to ‘B’, “I will sell you my horse for Kshs. 50,000/= and if you do
not reply, l shall assume you have accepted the offer,” there is no contract if ‘B’ does not
reply.’B’s is under no obligation to speak. However, If B is in possession of ‘A’s horse at the
time the offer is made and he continues to use the horse thereafter, ‘B’s silence and his
continued use of the horse amount to acceptance on his part of the terms of A’s offer.
(7). A statement of price is not an offer: A mere statement of price is not construed as an
offer to sell.
ACCEPTANCE
A contract emerges from the acceptance of an offer. Acceptance is the act of assenting by the
offeree to an offer. In other words, it is the manifestation by the offeree of his willingness to be
bound by the terms of the offer.
It is “to an offer what a lighted match is to a train of gunpowder. It produces something which
cannot be recalled, undone.” An offer when accepted became a promise.
Acceptance may be express or implied.
EXPRESS ACCEPTANCE: it is an acceptance which is communicated by words, spoken or
written or by doing some required act.
IMPLIED ACCEPTANCE: when an acceptance is to be gathered from the surrounding
circumstances or the conduct of the parties.

33
Example: A widow promised to settle some immovable property on her niece if the niece stayed
with her in her residence. The niece stayed with her in her residence till her death. Held, the
niece was entitled to the property [v.Rao v. Rao. (1916) 30 mad. 509]
WHO CAN ACCEPT
Acceptance of Particular offer: when an offer is made to a particular person, it can be
accepted by him alone. If it is by any other person, there is no valid acceptance. The rule of law
is clear that if you propose to make a contract with ‘A’, ‘B’ cannot substitute himself for ‘A’
without your consent.
General offer: When an offer is made to world at large, any persons to whom the offer is made
can accept it
In the case of [CARLILL V. CARBOLIC SMOKE BALL CO] The Company advertised in several
newspapers that a reward would be given to any person who contracted influenza after using
the smoke balls of the company according to its printed directions .One Mrs. Carlill used the
smoke balls according to the directions of the company but contracted influenza. HELD, she
could recover the amount as by using the smoke balls she had accepted the offer [carlill v.
carbolic smoke Ball co. (1893) 1 O B. 256].
LEGAL RULES AS TO ACCEPTANCE
The acceptance of an offer is the very essence of a contract.To be legally effective, it must
satisfy the following conditions:
(1). It must be absolute and unqualified, i.e., it must be in conformity with the offer. An
acceptance, in order to be binding, must be absolute and unqualified in respect of all terms of
the offer, whether material or immaterial, major or minor. If the parties are not ad idem on all
matters concerning the offer and acceptance, there is no contract.
Example. ‘A’ made an offer to ‘B’ to purchase a house with possession from 25 th July. The offer
was followed by an acceptance suggesting possession from 1st August. Held, there was no
concluded contract [Routledge v.Grant, (1828) 4 Bing. 653]
(2). It must be communicated to the offeror: To conclude a contract between the parties, the
acceptance must be communicated in some perceptible form. A mere resolve or mental
determination on the part of the offeree to accept the offer, when there is no external
manifestation of the intention to do so, is not sufficient. In order to result in a contract, the
acceptance must be a matter of fact. Example: ‘A’ tells ‘B’ that he intends to marry ‘C’, but tells
‘C’ nothing of his intention. There is no contract, even if ‘C’ is willing to marry ‘A’.
3. It must be according to the mode prescribed or usual and reasonable mode: If the
acceptance is not according to the mode prescribed, or some usual and reasonable mode
(where no mode is prescribed) the offeror may intimate to the offeree within a reasonable time
that the acceptance is not according to the mode prescribed and may insist that the offer must
be accepted in the prescribed mode only. If he does not informs the offeree, he is deemed to
have accepted the acceptance.
4. It must be given within a reasonable time: If any time limit is specified, the acceptance
must be given within that time. If no time limit is specified, it must be given within a
reasonable time.
5. It cannot precede an offer: If the acceptance precedes an offer. It is not a valid acceptance
and does not result in a contract.
Example. In a company, shares were allotted to a person who had not applied for them.
Subsequently when he applied for the shares, he was unaware of the previous allotment. The
allotment of shares previous to the application is invalid.
6. It must show an intention on the part of the acceptor to fulfill terms of the promise: If
no such intention is present, the acceptance is not valid.
7. It must be given by the party or parties to whom the offer is made.
8. It must be given before the offer lapses or before the offer is withdrawn.
9. It cannot be implied from silence of the offeree or his failure to answer, unless the offeree
has by his precious conduct indicated that his silence means that he accepts.
COMMUNICATION OF OFFER, ACCEPTANCE AND REVOCATION

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An offer, its acceptance and their revocation (withdrawal) to be complete must be
communicated.
When the contracting parties are face to face and negotiate in person, a contract comes into
existence the moment the offeree gives his absolute unqualified acceptance to the proposal
made by the offeror.
When the parties are at a distance and the offer and acceptance and their revocation can be
made through post, i.e. letter or telegram.
MODE OF COMMUNICATION
The communication of offer, its acceptance and their revocation respectively are deemed to be
made by any act, or omission of the party offering, accepting or revoking. Such act or omission
must however have the effect of communicating such offer, acceptance or revocation. Example:
installation of a weighing machine at a public place is an offer, putting of a coin in the slot of
the machine is the acceptance of the offer and switching off the machine amounts to revocation
of the offer.
WHEN IS COMMUNICATION COMPLETE
Communication of offer: The communication of an offer is complete when it comes to the
knowledge of the person to whom is made.
Communication of acceptance: The communication of an acceptance is complete
a.As against the proposer when it is put into a course of transmission to the proposer so as to
be out of the power of the acceptor.
b.As against the acceptor when it comes to the knowledge of the proposer.
Communication of revocation: Revocation means “taking back” “recalling” or “withdrawal”. It
may be a revocation of offer or acceptance.
The communication of a revocation is complete
a) As against the person who makes it, when it is put into a course of transmission to the
person to whom it is made.
b) As against the person to whom it is made, when it comes to his knowledge.
WHEN DOES AN OFFER COME TO AN END
An offer may come to an end by revocation or lapse, or rejection.
Revocation or lapse of offer.
1. By communication of notice of revocation by the offeror at any time before its acceptance is
complete as against him
Example. At an auction sale, ‘A’ makes the highest bid for ‘B’s goods. He withdraws the bid
before the fall of the hammer. The offer has been revoked before its acceptance.
2. By lapse of time if it is not accepted within the prescribed time. If however, no time is
prescribed, it lapses by the expiry of a reasonable time.
3 .By non-fulfillment by the offeree of a condition precedent to acceptance. Example: S, a
seller, agrees to sell certain goods subject to the condition that B, the buyer pays the agreed
price before a certain date. If B fails to pay the price by that date, the offer stands revoked.
4. By death or insanity of the offeror provided the offeree comes to know of it before
acceptance. If he accepts an offer in ignorance of the death or insanity of the offeror, the
acceptance is valid.
5. If a counter-offer is made to it. Where an offer is accepted with some modification in the
terms of the offer condition not forming part of the offer, such qualified acceptance amounts to
a counter-offer.
6. If the law is changed. An offer comes to an end if the law is changed so as to make the
contract contemplated by the offer illegal or incapable of performance.
7. If an offer is not accepted according to the prescribed or usual mode, provided the
offeror gives notice to the offeree within a reasonable time that the acceptance is not according
to the prescribed or usual mode. If the offeror keeps quiet, he is deemed to have accepted the
acceptance.
REJECTION OF OFFER
An offeree may reject the offer. Once he does that, he cannot subsequently accept it. Rejection
of the offer may be express or implied.

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Express rejection. The offeree may reject the offer expressly. i.e., by words written or spoken.
Express rejection is effective only when notice of rejection reaches the offeror.
Implied rejection. Rejection of the offer is implied by law
Where the offeree makes a counter-offer or where the offeree gives a conditional acceptance.

CONSIDERATION
Consideration is one of the essential elements to support a contract. Subject to a certain
exceptions, an agreement made without consideration is nudum pactum(a nude contract) and is
void.
Consideration is a technical term used in the sense of quid pro quo (something in return) when
a party to an agreement promises to do something, he must get “something in return”. This
“something” is defined as consideration.
Example; ‘A’ agrees to sell his car to ‘B’ for Kshs. 1,000,000/= Car is the consideration for B
and Kshs. 1,000,000/= price is the consideration for A.
Definition
According to Pollock “consideration is the price for which the promise of the other is bought
and the promise thus given for value is enforceable”
According to Justice Patterson “consideration means something which is of some value in the
eye of law …It may be some benefit to the plaintiff or some detriment to the defendant’.
Need for consideration
The reason why the law enforces only those promises which are made for consideration is that
gratuitous or voluntary promises are often made rashly and without due deliberation. The law
looks with disfavor upon an exchange of promises which would result in one of the parties
obtaining “something for nothing”. It supplies no means nor affords any remedy to compel the
performance of an agreement made without sufficient consideration.
LEGAL RULES AS TO CONSIDERATION
1. It must move at the desire of the promisor: An act constituting consideration must have
been done at the desire or request of the promisor. If it is done at the instance of a third party
or without the desire of the promisor. It will not be a good consideration. E.g. A saves B’s goods
from the fire without being asked to do so. A cannot demand payment for his services
2. It may move from the promisee or any other person: Under the English law,
consideration must move from the promise. Under Kenyan law, consideration may move from
the promise or any other person.
3. It may be an act, abstinence or forbearance or a return promise: Thus it may be noted
that the following are good consideration for a contract: a)forbearance to sue: if a person who
could sue another for the enforcement of a right agrees not to pursue his claim, this constitute
a good consideration for a promise by the other person. It will thus be a benefit to the person
not sued and a detriment to the person who could sue.
b) compromise of a disputed claim.
c) composition with creditors: a debtor who is financially embarrassed may call a meeting of his
creditors and request them to accept a lesser amount in satisfaction of their debt. If the
creditors agree to it,the agreement is binding both upon the debtor and the creditors and the
amounts to a compromise of the claim of their creditors.
4. It may be past, present or future; The words used in the Act are …”has done or abstained
from doing (past). Or does or abstains from doing (present), or promises to do or to abstain
from doing (future) something….”This means consideration may be past, present or future.
(a)Past consideration; When consideration is by a party for a present promise was given in the
past, i.e. before the date of the promise, it is said to be past consideration.
Under the English law, past consideration is no consideration as, in the words of Anson, it is “a
mere sentiment of gratitude or honour prompting a return for the benefits received.’’
(b)Present or executed consideration: When consideration is given simultaneously with
promise, i.e at the time of the promise, it is said to be present consideration. In a cash sale, for
example, consideration is present or executed.

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(c)Future or executory consideration: When consideration from one party to other is to pass
subsequently to the making of the contract, it is future or executory consideration
5. It need not be adequate: Consideration, as already explained, means “something in return
“. It need not be necessarily be equal in value to “something given”.
Consideration must, however, be something to which the law attaches value though it need not
be equal in value to the promise made the courts do not exists to repair bad bargains.
6. It must be real and not illusory. Although consideration need not be adequate, it must be
real, competent and of some value in the eyes of the law, there is no real consideration in the
following cases:
a. Physical impossibility: Example. ‘A’ owes Kshs .1000/= to ‘B’ .He promises to put life into
‘B’s wife should ‘B’ pay him Kshs .1000/=.’A’s promise is physically impossible of performance.
b. Legal impossibility: Example. ‘A’ owes Kshs .1000/= to ‘B’.He promises to pay Kshs.200/=
to ‘C’, the servant of ‘B’, who in return promises to discharged ‘A’ from the debt. This is legally
impossible because ‘C’ Cannot give discharge for a debt due to ‘B’, his master.
C.Uncertain consideration: Example. ‘A’ engages ‘B’ for doing certain work and promises to
pay a reasonable sum. There is no reorganized method of ascertaining the reasonable
remuneration. The promise is unenforceable as consideration is uncertain.
7. It must be something which the promisor is not already bound to do:
A promise to do what one is already bound to do, either by general law or under an existing
contract, is not a good consideration for a new promise since it adds nothing to the pre-
existing legal or contractual obligation. E.g. a promise to perform a public duty by a public
servant is not a consideration.
8. It must not be illegal, immoral or opposed to public policy.
The consideration given for an agreement must not be unlawful .Where it is unlawful, the
courts do not allow an action on the agreement.
PRIVITY OF CONTRACT (STRANGERS TO A CONTRACT)
It is a general rule of law that only parties to a contract may sue and be sued on that contract’’.
This rule is known as the doctrine of’’ privity of contract’’ means relationship subsisting
between the parties who have entered into contractual obligation.
It implies a mutuality of will and creates bond or tie between the parties to a contract.
There are two consequences of the doctrine of privities of contract:
(1)A person who is not a party to a contract cannot sue upon it even though the contract is for
his benefit and he provided consideration.
(2) a contract cannot confer rights or impose obligations arising under it on any person other
than the parties to it. Thus, if there is a contract between A and B, C cannot enforce it.
Exceptions
The following are the exceptions to the rule that “a stranger to a contract cannot sue”
1.A trust or charge: A person (called beneficiary) in whose favour a trust or other interest in
some specific immovable property has been created can enforce it even though he is not a party
to the contract. E.g. A agrees to transfer certain properties to be held by T in trust for the
benefit of B. B can enforce the agreement (i.e. the trust) even though he is not a party to the
agreement.
2.Marriage settlement, Partition or other family arrangements: When an arrangement is
made in connection with marriage, partition or other family arrangements and a provision is
made for the benefit of a person. He may sue although he is not a party to the agreement. E.g.
Two brothers, on a partition of joint properties, agreed to invest in equal shares a certain sum
of money for the maintenance of their mother. Held, she was entitled to require her sons to
make the investment.
3.Acknowledgement or estoppels: Where the promisor acknowledges or otherwise constitutes
himself as an agent of a third party, a binding obligation is thereby incurred by him towards
the third party. E.g. A receives some money from T to be paid over to P. A admits of this receipt
to P. P can recover the amount from A who shall be regarded as the agent of P.

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4.Assignment of a contract: The assignee of rights and benefits under a contract not
involving a personal skill can enforce the contract subject to the equities between the original
parties.
5.Contract entered into though an agent: The principal can enforce the contracts entered
into by his agent provided the agent acts within the scope of his authority and in the name of
the principal.
6.Covenants running with the land: In cases of transfer of immovable property, the
purchaser of land with notice that the owner of the land is bound by certain conditions or
covenants created by an agreement affecting the land shall be bound by them although he was
not party to the original agreement which contained the conditions or covenants.

A CONTRACT WITHOUT CONSIDERATION IS VOID (EXCEPTIONS)

The general rule is ex nudo pacto non aritur actio, i.e. an agreement made without consideration
is void.

However, there are certain exceptions to this rule as follows:

(1)Love and affection: where an agreement is expressed in writing and registered under the
law for the time being in force for the registration of documents and is made on account of
natural love and affection between parties standing in a near relation to each other. It is
enforceable even if there is no consideration.
(2)Compensation for voluntary service: A promise to compensate, wholly or in part, a person
who has already voluntarily done something for the promisor, is enforceable, even though
without consideration. In simple words, a promise to pay for a past voluntary service is
binding.
Example. (a) ‘A’ finds ‘B’s purse and gives it to him. ‘B’ promises to give’ A’Kshs.500/=.This is a
contract.
(3) Promise to pay a time-barred debt: A promise by a debtor to pay a time-barred debt is
enforceable provided it is made in writing and is signed by the debtor or by his agent generally
or specially authorized in that behalf. The promise may be to pay the whole or any part of the
debt. The debt must be such” of which the creditor might have enforced payment but for the
law for the limitation of suits”.
(4) Completed gift: The rule “No consideration, no contract” does not apply to completed gifts.

(5)Agency: No consideration is necessary to create an agency.

(6)Charitable subscription: where the promisee on the strength of the promise makes
commitments i.e. changes his position to his detriment.

CAPACITY TO CONTRACT

The parties who enter into a contract must have the capacity to do so.
Capacity here means competence of the parties to enter into a valid contract.

An agreement becomes a contract if it is entered into between the parties who are competent to
contract.
Every person is competent to contract who is of:
(a) The age of majority,
b) Soundness of mind and
(c) Is not disqualified from contracting by any law to which he is subject.

1. MINORS

A minor is a person who has not completed eighteen years of age.

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In the following two cases, he attains majority after twenty one years of age:
1.Where a guardian of a minor ‘s person or property has been appointed under the guardians
and wards Act 90, or
2.Where the superintendence of a minor‘s property is assumed by courts of wards.
The rules governing minor’s agreements are based on two fundamental rules:
1. The law protects minors against their own inexperience and against the possible improper
designs of those more experienced.
It has been rightly observed, in support of these arguments that “the law protects their
(minor’s) persons, preserves their rights and estates, excuses their laches (negligence or undue
delay in enforcing a right such as to disentitle a person to a certain remedy) and assists them
in their pleadings;
2. The law should not (in the cause of protecting minors) cause unnecessary hardship to
those who deal with minors:
POSITION OF THE MINOR’S AGREEMENT:
(a)An agreement with or by a minor is void and inoperative ab initio.
(b)He can be a promise or a beneficiary. Incapacity of a minor to enter into a contract means
incapacity to bind himself by a contract.
There is nothing which debars him becoming a beneficiary, such contracts may be enforced at
his option.
Example ‘A’, a minor, under a contract of sale delivered goods to the buyer. Held, he was
entitled to maintain suit for the recovery of price.
(3) His agreement can be ratified by him on attaining the age of majority. “Consideration
passed under the earlier contract cannot be implied into the contract which the minor enters
on attaining majority.
(4)If he has received any benefit under a void agreement he cannot be asked to compensate
or pay for it.
(5) He can always plead minority. Even if he has by misrepresenting his age, induced the
other party to contract with him, he cannot be sued either in contract or in tort for fraud
because if the injured party were allowed to sue for fraud, it would be giving him an indirect
means of enforcing the void agreement.
(6) There can be no specific performance of the agreements entered into by him as they are
void ab initio.
(7)He cannot enter into a contract of partnership. But he may be admitted to the benefits of
an already existing partnership with the consent of the other partners.
(8) He cannot be adjudged insolvent. This is because he is incapable of contracting debts
(10) He can be an agent. An agent is merely a connecting link between his principle and a
third party. As soon as the principle and the third party are brought together, the agent drops
out.
(11)His parents/guardian are/is not liable for the contract entered into by him, even
though the contract is for the supply of necessaries to the minor.
(12)A minor is liable in tort (a civil wrong), but where a tort arises out of a contract a minor
is not liable in tort as an indirect way of enforcing an invalid contract.
PERSONS OF UNSOUND MIND
One of the essential conditions of competency of parties to a contract is that they should be of
sound mind.
A person is said to be of sound mind for the purpose of making a contract if, at the time when
he makes it, he is capable of understanding it and of forming a rational judgment as to its
effect upon his interests.
A person, who is usually of sound mind, but occasionally of sound mind, may make a contract
when he is of sound mind.’’
Soundness of mind of a person depends on two facts:
(i) His capacity to understand the contents of the business concerned, and
(ii) his ability to form a rational judgment as to effect upon his interests.
CONTRACTS OF PERSONS OF UNSOUND MIND

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Lunatics: A lunatic is a person who is mentally deranged due to some mental strain or other
personal experience.
He suffers from intermitted intervals of sanity and insanity.
He can enter into contracts during the period when he is of sound mind.
Idiots: An idiot is a person who has completely lost his mental powers. He does not exhibit
understanding of even ordinary matters.
Idiocy is permanent whereas lunacy denotes periodical insanity with lucid intervals.
An agreement of an idiot, like that of a minor, is void.
Drunken or intoxicated persons: A drunken or intoxicated persons suffers from temporary
incapacity to contract, i.e. at the time when he is so drunk or intoxicated that he is incapable
of forming a rational judgement.
Agreements entered into by persons of unsound mind are void.
However, persons of unsound mind are liable for necessities supplied to them or to anyone
whom they are legally bound to support.
But even in such cases, no personal liability attaches to them.
It is only their estate which is liable.
OTHER PERSONS
Alien enemies: An alien (the subject of a foreign state) is a person who is not a subject of the
Republic of Kenya.
He may be:
(i) An alien friend, or
(ii)an alien enemy
Contracts with an alien friend (subject to certain restrictions, are valid.
Contracts with an alien enemy (an alien whose state is at war with the Republic of Kenya) may
be studied under two heads, namely:
(a)Contracts during the war, and
(b)Contracts made before war.
Contracts made before the war will either be suspended or dissolved.
Foreign sovereign, their diplomatic staff and accredited representatives of foreign states:
They have some special privileges and generally cannot be sued unless they of their own
submit to the jurisdiction of our law courts. They can enter into contracts and enforce those
contracts in our courts.
Corporations: A corporation is an artificial person created by law, having a legal existence a
part from its members. It may come into existence by a special Act of the legislature or by
registration under the companies Act.
Insolvents: When a debtor is adjudged insolvent, his property vests in the official Receive or
official assignee’s. As such that the insolvent is deprived of his power to deal in that property, It
is only the official Receiver or official Assignee who can enter into contracts relating to his
property, and sue and be sued on his behalf.
Convicts: A convict when undergoing imprisonment is not capable of entering into a contract.
He can, however, enter into, or sue on a contract if he is lawfully at large under a license called
“bail or bond”. His period of sentence expires or when he is pardoned.
FREE CONSENT
It is essential to the creation of a contract that the parties are ad idem, i.e. They agree upon
the same thing in the same sense at the same time and that their consent is free and real. “All
agreements are contracts if they are made by the free consent of parties”.
Consent means acquiescence or act of assenting to an offer.
Free consent: Consent is said to be free when it is not caused by:
(1) Coercion or (2) Under influence, or (3) Fraud, or (4) Misrepresentation, or (5) Mistake,
When there is no consent, there is no contract:
Example: An illiterate woman executed a deed of gift in favour of her nephew under the
impression that she was executing a deed authorizing her nephew to manage her lands. The
evidence showed that the woman never intended to execute such a deed of gift nor was the
deed ever read or explained to her. Held, the deed was void and inoperative.

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It is clear that the consent of the woman is altogether absent. Had she known the true position,
she would not have signed the documents thus a nullity.
COERCION
When a person is compelled to enter into a contract by the use of force by the other party or
under a threat, “Coercion” is said to be employed.
Coercion is the committing, or threatening to commit, any act forbidden by the penal code, or
the unlawful detaining, or threatening to detain, any property, to the prejudice of any person
whatever, with the intention of causing any person to enter into an agreement.
Coercion includes fear, physical compulsion and menace to goods.
Example: ‘A’ threatens to kill ‘B’ if he does not lend Kshs. 1,000 to ‘C’.’B’ agrees to lend the
amount to ‘C’. The agreement is entered into under coercion.
Consent is said to be caused by coercion when it is obtain by:
1. Committing, or threatening to commit, any act forbidden by the penal code, or.
2. Unlawful detaining or threatening to detain any property.
Effect of coercion
When consent to an agreement is caused by coercion, fraud or mispresentation, the agreement
is a contract voidable at the option of the party whose consent was so caused.
The onus of proving that the consent of a party to a contract was caused by coercion and that
he would not have entered into it had coercion not been employed, lies on the party who wants
to relieve himself of the consequences of coercion.
Duress
In the English law, the near equivalent of the term coercion is duress. Duress involves actual
or threatened violence over the person of another 9or his wife, parent or child) with a view to
obtaining his consent to the agreement.
If the threat is with regard to the goods or property of the other party, it is not duress.
UNDUE INFLUENCE
Sometimes a party is compelled to enter into an agreement against his will as a result of unfair
persuasion by the other party.
This happens when a special kind of relationship exists between the parties such that one
party is in a position to exercise undue influence over the other.
Definition
“A contract is said to be induced by undue influence where the relations subsisting between
the parties are such that one of the parties is in a position to dominate the will of the other and
uses that position to obtain an unfair advantage over the other.
A person is deemed to be in a position to dominate the will of another;
(a)Where he holds a real or apparent authority over the other i.e. relation between master and
servant, Doctor and patient.
(b) Where he stands in a fiduciary (relation of trust and confidence) to the other i.e. father &
son
(C) Where he makes a contract with a person whose capacity is temporally or permanently
affected by a reason of age, illness or mental or bodily distress.

Undue influence is sometimes called Moral Coercion.

Effect of undue influence

When consent to an agreement is obtain by undue influence, the agreement is a contract
voidable at the option of the party whose consent was so obtained.
Any such contract may be set aside either absolutely or if the party who is entitled to avoid it
has received any benefit thereunder, upon such terms and conditions as to the courts may
seem just and equitable.
The granting of relief on account of undue influence is founded on the principle of correcting
abuses of confidence.
Relationships which raise presumption of undue influence

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The following relationships usually raise a presumptions of undue influence, viz. (i) parent and
child, (ii)guardian and ward,(iii) trustee and beneficiary, (iv)religious adviser and disciple, (v)
doctor and patient
Burden of proof
In an action to avoid a contract on the ground of undue influence, the plaintiff has to establish
that-
(i) The other party was in a position to dominate his will. Mere proof of nearness of relationship
is not sufficient for the court to assume that one relation was in a position to dominate the will
of the other.
(ii) The other party actually used his influence to obtain the plaintiff‘s consent to the contract;
and
(iii) The transaction is unconscionable (unreasonable)
Rebutting the presumption.
The presumption of undue influence can be rebutted by showing that-
(a)Full disclosure of facts was made by the influencing party to the party alleged to have been
influenced at the time of entering into the contract.
(b) The price was adequate; Inadequate of consideration is only an evidence of undue influence,
it is however not conclusive.
(c)That the weaker party was in receipt of independent advice, before making the promise; The
mere fact that independent advice was received will not necessarily save the transaction .It
must be shown that the advice was competent and based on knowledge of all relevant facts.
MISREPRESENTATION AND FRAUD
A statement of fact which one party makes in course of negotiations with a view to inducing the
other party to enter into a contract is known as a representation. It must relate to some facts
which is material to the contract. The same may be expressed by words spoken or written or
implied from the acts and conduct of the parties.
A representation, when wrongly made, either innocently or intentionally, is a
misrepresentation.
Misrepresentation may be:
(i) An innocent or unintentionally misrepresentation, or
(ii) An intentionally, deliberate or willful misrepresentation with an intent to deceive or defraud
other party.
The former is called “misrepresentation” and the latter “fraud”
MISREPRESENTATION
Misrepresentation is a false statement which the person making it honestly believes to be true
or which he does not know to be false.
It also includes non-disclosure of a material fact or facts without any intent to deceive the other
party.
Example; A, while selling his horse to B, tells him that the horse is thoroughly sound. A
genuinely believes the horse to be sound although he has no sufficient ground for the belief.
Later on B finds the horse to be unsound. The representation made by A is a
misrepresentation.
Requirements of misrepresentation
Misrepresentation is relevant if it satisfies the following requirements:
(1)It must be a representation of a material fact: Mere expression of opinion does not amount to
misrepresentation even if it turns out to be wrong.
2. It must be made before the conclusion of the contract with a view to inducing the other party
to enter into the contract.
(3)It must be made with the intention that it should be acted upon by the person to whom it is
addressed.
(4)It must actually have been acted upon and must have induced the contract.
(5) It must be wrong but the person who made it honestly believed it to be true.
(6)It must be made without any intention to deceive the other party.

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(7) It need not be made directly to the plaintiff. A wrong statement of facts made to a third
person with intention of communicating it to the plaintiff, also amount to misrepresentation.
Consequences of misrepresentation
The aggrieved party, in case of misrepresentation by the other party, can-
1. Avoid or rescind the contract; or
2. Accept the contract but insist that he shall be placed in the position in which he would have
been if the representation made had been true.
FRAUD
Fraud exists when it is shown that-
(1)a false representation has been made (a) knowningly,or(b)without belief in its truth,
or(c)recklessly, not caring whether it is true or false, and the maker intended the other party to
act upon it, or
(2) There is concealment of material fact or that there is a partial statement of a fact in such a
manner that the withholding of what is not stated makes that which is stated false.
The intention of the party making fraudulent misrepresentation must be to deceive the other
party to the contract or to induce him to enter into a contract.
Fraud according to the law includes and of the following act committed by a party to the
contract:
1. The suggestion that a fact is true when it is not and the person making the suggestion does
not believe it to be true;
2. The active concealment of a fact by a person having knowledge or belief of the fact;
3. a promise made without any intention of performing it:
4. Any other act fitted to deceive
5. Any such act or omission as the law specially declares to be fraudulent.

Example : A sells to B a horse which A knows to be unsound. A says to B that the horse is his
best and in fact it is sound. This is fraud.

Essential elements of fraud

1. There must be representation or assertion and it must be false: without a representation or
assertion, there can be no fraud except in cases where silence may itself amount to fraud or
where there is an effective concealment of fact.
2. The representation must relate to material fact which exists now or existed in the past: a
mere opinion, commendatory or puffing is not regarded as representation of fact
3. The representation must have been made before the conclusion of the contract with the
intention of inducing the other party to act upon it: not only must the representation be false
and made with the knowledge of its falsity, but it must also be made with an intent to deceive
the other party.
4. The representation or statement must have been made with a knowledge of its falsity or
without belief in its truth or recklessly, not caring whether it is true or false.
5. The other party must have been induced to act upon the representation or assertion. A mere
falsehood is not enough to give a right of action.
6. The other party must have relied on the representation and must have been deceive.
7. The other party, acting on the representation or assertion, must have subsequently suffered
some loss. It is a common rule of law “that there is no fraud without damage”.
Consequences of fraud
A contract induced by fraud is voidable at the option of the party defrauded. Until it is avoided,
it is valid, the party defrauded has, however, the following remedies:
1. He can rescind the contract;Where he does so, he must act within a reasonable time. If in
the interval, while he is deliberating, an innocent third party has acquitted an interest in the
property for value, he cannot rescind the contract.
2. He can insist on the performance of the contract on the condition that he shall be put in the
position in which he would have been if the representation made had been true.
3. He can sue for damages

43
Distinction between fraud and misrepresentation
(1) Intention: In misrepresentation, there is misstatement or concealment of a material
fact or facts essential to the contract without any intention to deceive the other party
whereas in fraud, the intention is to deceive the other party.
Misrepresentation is innocent, fraud is deliberate or willful.

(2) Belief; In case of misrepsentation, the person making the suggestion s believes it to be
true.
(3) Rescission and damages; In misrepresentation, the aggrieved party can rescind the
contract or sue for restitution. There can be no suit for damages. In fraud, the remedy
available to the aggrieved party is not limited to rescission alone. He can also claim
damages.

(4) Discovery of truth. In case of misrepresentation, the aggrieved party can discover the
truth with ordinary diligence. But in the case of fraud, where there is active
concealment, the contract is voidable even though the aggrieved party had the means of
discovering the truth with ordinary diligence.
MISTAKE
Mistake may be defined as an erroneous belief about something. It may be a mistake of fact or
a mistake of law.
Mistake of law may be – Mistake of law of the country or mistake of law of a foreign country.
(1)Mistake of law of the country: Ignorantia juris non excusat,I,e ignorance of law is no
excuse, is a well settle rule of law. A party cannot be allowed to get any relief on the ground
that it had done a particular act in ignorance of law hence the contract cannot be avoided in
such circumstance.
(2)Mistake of law of a foreign country: Such a mistake is treated as mistake of fact and the
agreement in such a case is void.
Mistake of fact
Mistake of fact may be (1)a bilateral mistake, or unilateral mistake.
Bilateral mistake
Where both the parties to an agreement are under a mistaken belief as to a matter of fact
essential to the agreement.In such a case, the agreement is void.
Conditions to be fulfilled:
(i)The mistake must be mutual: both the parties should misunderstand each other and should
be at cross purposes.
(ii)The mistake must relate to a matter of fact essential to the agreement; As to what facts are
essential in an agreement will depend upon the promise in each case.
Unilateral mistake
When in a contract only one of the parties is mistaken regarding the subject-matter or in
expressing or understanding the terms or the legal effect of the agreement, the mistake is a
unilateral mistake.
A contract is not voidable merely because it was caused by one of the parties to it being under
a mistake as to a mistake as to a matter of fact.
A unilateral mistake is not allowed as a defence in avoiding a contract unless the mistake is
brought about by the other party’s fraud or misrepresentation.
LEGALITY OF OBJECT
A contract must not only be based upon mutual assent of competent parties but must also
have a lawful object. If the object of an agreement is the performance of an unlawful act, the
agreement is unenforceable.
The word “Object” means purpose or design.
In some cases, consideration for an agreement may be lawful but the purpose for which the
agreement is entered into may be unlawful, in such cases the agreement is void. As such, both
the object and the consideration of an agreement must be lawful, otherwise the agreement is
void.

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When consideration or object is unlawful
The consideration or object of an agreement is unlawful
1. If it is forbidden by law: If the object or the consideration of an agreement is the doing of
an act forbidden by law, the agreement is void. An act is forbidden by law when it is
punishable by the criminal law of the country or when it is prohibited by special legislation or
regulations made by competent authority under power derived from the legislature
Examples:’ A’ promise ‘B’ to drop a prosecution which he has instituted against ‘B’ for robbery
and ‘B’ promises to restore the value of the things taken. The agreement is void as its object is
unlawful
2. If it is of such a nature that, if permitted, it would defeat the provisions of any law: If
the object or consideration of an agreement is that which, though not directly forbidden by law,
it would defeat the provisions of any law, the agreement is void.
Example: ‘A’ was licensed under an Excise Act to run a liquor shop. The Act forbade the sale,
transfer or sub-lease of the licence or the creation of a partnership to the shop. A took ‘B’ into a
partnership. Held, the agreement was void (Nandlal v. Thomas 171 1. C.948).
(3) If it is fraudulent; an agreement which is made for a fraudulent purpose is void. Thus an
agreement in fraud of creditors with a view to defeating their rights is void.
Example. ‘A’,’B’ and ‘C’. Entered into an agreement for the division among them of gains
acquired, or to be acquired by them through fraud. The agreement is void, as its object is
unlawful.
4. If it involves, or implies injury to the person or property of another; Injury means
wrong, harm or damages; Person ‘means one’s body, Property includes both movable and
immovable property.
Example; The proprietor of a newspaper agreed with the printers to indemnify the latter against
consequences arising from libels printed in the newspaper. Held the agreement was void.
5. If the court regards it as immoral: An agreement, the consideration or object of which is
immoral, e.g. an agreement between a husband and wife for future separation ,is
unlawful[ sumitra Devi v. sulenka kundu,
An agreement is unlawful for immorality in the following cases;
a). Where the consideration is an act of sexual immorality e.g. illicit cohabitation or prostitution
b). Where the object of the agreement is the furtherance of sexual immorality e.g. lending
money to a prostitute to help her in her trade.
C).Where the courts regard it as opposed to public policy.
UNLAWFUL AND ILLEGAL AGREEMENT
An unlawful agreement is one which, like a void agreement, is not enforceable by law. It is
destitute of legal effect altogether. It affects only the immediate parties and has no further
consequences.
An illegal agreement on the other hand is not only void as between immediate parties but
has further effect that the collateral transactions to it also become tainted with illegality.
An agreement to commit a crime or tort,e.g. an agreement to assault is illegal.
Illegal agreements are those which involve the commission of a crime whereas unlawful acts
are those that which are non-criminal breach of the law.
Effects of illegality
The general rule of law is that no action is allowed on an illegal agreement. This is based on the
following two maxims:
1. Exturpi causa non oritur action;No action arises from a base cause.
The effect of this is that the law discourages people from entering into illegal agreements which
arise from base cause.
2. In part decicto, potior est conditor defendents; In cases of the equal guilt, the defendant is in
better position.
AGREEMENTS OPPOSED TO PUBLIC POLICY
An agreement is said to be opposed to public policy when it is harmful to the public welfare.

45
Public policy is that principle of law which holds that no subject can lawfully do that which has
a mischievous tendency to be injurious to the interest of the public or which is against public
good or public welfare.
Some of the agreements which are, or which have been held to be opposed to public policy and
are unlawful are as follows:
1. Agreements to commit a crime; Where the consideration in an agreement is to commit a
crime, the agreement is opposed to public policy. The court will not enforce such agreement.
Example;A promises to indemnify B in consideration of his beating C. the agreement is opposed
to public policy.
2. A agreement of trading with enemy; An agreement made with an alien enemy in time of
war is illegal on the ground of public policy.
3. Agreements which interferes with the administration of justice; An agreement the object
of which is to interfere with the administration of justice is unlawful, being opposed to public
policy. It may take any of the following forms:
(a)Interference with the courts of justice; An agreement which obstructs the ordinary process of
justice is unlawful.
(b)Stifling prosecution; It is in public interest that if a person has committed a crime, he must
be prosecuted and punished.
(c)Maintenance and champerty;Maintenance ‘is an agreement to give assistance, financial or
otherwise, to another to enable him to bring or defend legal proceedings when the person giving
assistance has got no legal interests of his own in the subject –matter
4).Agreements in restraint of legal proceeding: Agreements restricting enforcements of
rights;An agreement which wholly or partially prohibits any party from enforcing his rights
under or in any contracts is void to that extent. Agreement curtailing period of limitation;
agreements which curtail the period of limitation as prescribed by the law of limitation are void
because their object is to defeat the provisions of the law.
5) Trafficking in public offices and titles; Agreements for the sale or transfer of public offices
and titles or for the procurement of public recognition for monetary consideration are unlawful,
being opposed to public policy.such agreements, if enforced, would lead to inefficiency and
corruption in public life.
6) Agreement tending to create interest opposed to duty; If a person enters into an
agreement whereby he is bound to do something which is against his public or professional
duty, the agreement is void on the ground of public policy.
(7) Agreements in restraint of parental rights; A father is entitled by law to custody of his
legitimate child. He cannot enter into an agreement which is inconsistent with his duties
arising out of such custody. If he enters into any such agreement, it shall be void on the
ground of public policy.
(8)Agreement in restraint of marriage; Every agreement in restraint of the marriage of any
person, other than a minor, is void.
(10) Marriage brokerage agreements; An agreement by which a person, for a monetary
consideration, promises in return to procure the marriage of another is void, being opposed to
public policy.
(11)Agreements interfering with marital duties; Any agreement which interferes with the
performance of marital duties is void.
(12)Agreements to defraud creditors or revenue authorities: An agreement the object of
which is to defraud the creditors or the revenue authorities is not enforceable, being opposed to
public policy.
(13)Agreements in restraint of trade: An agreement which interferes with the liberty of a
person to engage himself in any lawful trade, profession or vocation is called an agreement in
restraint of trade hence opposed to public policy.
Exceptions.
The following are the exceptions to the rule that an agreement in restraint of trade is void’’:
(i)Sale of goodwill. A seller of goodwill of a business may be restraint from carrying on (i)a
similar business,(ii)within specified local limits,(iii) so long as the buyer or any person deriving

46
title to the goodwill from him carries on a like business: provided (iv) that such limits appear to
the court reasonable being had to the nature of the business.
(2)Partners’ agreements. (a) A partner shall not carry on any business other than that of the
firm he is a partner.
VOID AGREEMENTS
An agreement, though it might posses all the essential elements of a valid contract, must not
have been expressly declared as void by any law in force in the country.
The contract Act specifically declares certain agreements to be void.
A void agreement is one which is not enforceable by law, such an agreement does not give rise
to any legal consequences and is void ab initio.
The following agreements have been expressly declared to be void by the contract Act:
1. Agreements by incompetent parties;
2. Agreements made under a mutual mistake of fact;
3. Agreements the consideration or object of which is unlawful;
4. Agreements the consideration or object of which is unlawful in part;
5. Agreements made without consideration
6. Agreements in restraint of marriage
7. Agreements in restraint of legal proceedings
8. Agreements in restraint of trade
9. Agreements of meaning of which is uncertain
10. Agreements by way of wager)
11. Agreements contingent on impossible events
12. Agreements to impossible acts
13. In case of reciprocal promise to do things legal and also other things illegal, the second
set of reciprocal promises is a void agreement.
Agreements the meaning of which is uncertain
Agreements, the meaning of which is not certain, or capable of being made certain, are void.
The uncertainty may be as to (i) existence of,(ii) quality of, (iii)price of, (v)title to, the subject –
matter.
Example ‘A’ agrees to sell to ‘B’ his white horse for Kshs. 5,000 or 8,000.There is nothing to
show which of the two prices was to be given. The agreement is void.
Wagering agreements or wager
A wager is an agreement between two parties by which one promises to pay money or
money‘s worth on the happening of some uncertain event in consideration of the other party’s
promise to pay if the event does not happen.
Thus if ‘A’ and ‘B’ enter into an agreement that ‘A’ shall pay ‘B’ Kshs.100 if Manchester united
won a match on Monday, and that ‘B’ shall pay ‘A’ the same amount if they loose, it is a
wagering agreement.
“It is essential to a wagering contract that each party under it either win or lose, whether he
will win or lose being dependent on the issue of the event, and therefore remaining uncertain
until that issue is known. If either of the parties may win but cannot lose or may lose but
cannot win, it is not a wagering contract.
Essentials of a wagering agreement
1. Promise to pay money or money’s worth; The wagering agreement must contain a
promise to pay money or money’s worth.
2. Uncertain event; The promise must be conditional on an event happening or not
happening. a wager generally contemplates a future event, but it may also relate to a
past event provided the parties are not aware of its result or the time of its happening.
3. Each party must stand to win or lose; Upon the determination of the contemplated
event, each party should stand to win or lose. An agreement is not a wager if either of
the parties may win but cannot lose or may lose but cannot win
4. No control over the event; neither party should have control over the happening of the
event one way or the other. If one of the parties has the event in his own hands, the
transaction lacks an essential ingredient of a wager.

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 5. No other interest in the event; Lastly, neither partly should have any interest in the
happening or non-happening of the event other the sum or stake he will win or lose.
Thus an agreement is not a wager if the party to whom money is promised on the
occurrence of an event has an interest in its non- occurrence. That is why a contract of
insurance is not a wagering agreement.
RESTITUTION
When a contract becomes void, the party who has received any benefit under it must restore it
to the other party or must compensate the other party by the value of the benefit.
This restoration of the benefit is called restitution.
The principle of restitution is that a person who has been unjustly enriched at the expense of
another is required to make restitution to that other. In essence, restitution is not based on
loss to the plaintiff but on benefit which is enjoyed by the defendant at the cost of the plaintiff
which is unjust for the defendant to retain.
Consequences of rescission of voidable contract:
When a person at whose option a contract is voidable rescinds it, the other party thereto need
not perform any promise therein contained in which he is promisor.

PERFORMANCE OF CONTRACT
Performance of a contract takes place when the parties to the contract fulfill their obligations
arising under the contract within the time and the manner prescribed.
OFFER TO PERFORM
Sometimes it so happens that the promisor offer to perform his obligation under the contract at
the proper time and place but the promisee does not accept the performance. This is known as
“attempted performance” or tender” Thus, a tender of performance is equivalent to actual
performance.
It excuses the promisor from further performance and entitles him to sue the promisee for the
breach of contract.
Requisites of a valid tender
1. It must be unconditional; It becomes conditional when it is not in accordance with the
terms of the contract. Example ‘D’, a debtor offers to pay to’ C’ , his creditor ,the amount due to
him on the condition that ‘C’ sell to him certain shares at cost. This is not valid tender.
2. It must be of the whole quantity contracted for or of the whole obligation; A tender of
an installment when the contract stipulates payment in full is not a valid tender. Examples.
‘D’, a debtor, offers to pay ‘C’ his creditor, the amount due, in installments and tenders the first
installment. The tender is not of the whole amount due and hence it is not a valid tender
3. It must be by a person who is in a position, and is willing to perform the promise.
4. It must be made at the proper time and place: A tender of goods after the business hours
or goods or money before the due date is not a valid tender.
5. It must be made to the proper person and form; i.e. the promise or his duly authorized
agent. It must also be in proper form.
6. It may be made to one of several joint promisee’:. In such a case it has the same effect as
a tender to all of them.
7. In case of tender of goods, it must give a reasonable opportunity to the promisee for
inspection of the goods: A tender of goods at such time when the other party cannot inspect
the goods is not a valid tender.
8. In case of tender of money, the debtor must make a valid tender in the legal tender money.
If the creditor refuses to accept it, the debtor is not discharged from making the payment.
Tender, in this case, does not discharge the debt.
CONTRACTS WHICH NEED NOT BE PERFOMED
A contract need not be performed-
1. When its performance becomes impossible
2. When the parties to it agree to substitute a new contract for it or to rescind or alter it

48
 3. When the promise dispenses with or remits, wholly or in part, the performance of the
promise made to him or extends the time for such performance or accepts any
satisfaction for it.
4. When the person at whose option it is voidable, rescinds it
5. When the promise neglects or refuses to afford the promisor reasonable facilities for the
performance of his promise.
6. When it is illegal

BY WHOM MUST CONTRACTS BE PERFORMED

1. Promisor himself; If there is something in the contract to show that it was the intention of
the parties that the promise should be performed by the promisor himself, such promise must
be performed by the promisor.
This means contracts which involve the exercise of personal skill, volition, or diligence of the
promisor (for instance, a contract to paint a picture or sing), or which are founded on personal
confidence between the parties (for instances a contract to marry) must be performed by the
promisor himself.
2. Agent: Where personal consideration is not the foundation of a contract, the promisor or
his representatives may employ a competent person to perform it. Example.’ A’ promises to pay
‘B’ some money.’A’ may perform this promise , either by personally paying the money to B or by
causing it to be paid to B by another.
3. Legal representatives: A contract which involves the use of personal skill or is founded on
personal consideration comes to an end on the death of the promisor. The rule of law is: action
personalis moritur cum persona, i.e. a personal action dies with the person.
As regards any other contract, the legal representatives of the deceased promisor are bound to
perform it unless a contrary intention appears from the contract.
But their liability under a contract is limited to the value of the property they inherit from the
deceased.
4. Third persons: When a promisor accepts performance of the promise from a third person,
he cannot afterwards enforce it against the promisor
5. Joint promisor; when two or more persons have made a joint promise, they are known as
joint promisors. Unless a contrary intention appears from the contract, all of them must jointly
fulfill the promise.
WHO CAN DEMAND PERFOMANCE
It is only promisee who can demand performance of the promise under a contract. It makes no
differences whether the promise is for the benefit of the promisee or the benefit of any other
person.
Death of promisee: In case of death of the promisee, his legal representatives can demand
performance.
DISCHARGE OF CONTRACT
Discharged of contract means termination of the contractual relationship between the parties.
A contract is said to be discharged when it ceases to operate, i.e when the rights and obligation
created by it come to an end. In some cases, other rights & obligations may arise as a result of
discharge of contract, but they are altogether independent of the original contract.
A contract may be discharged –
1. By performance
2. By agreement or consent.
3. By impossibility.
4. By lapse of time.
5. By operation of law
6. By breach of contract.
DISCHARGED BY PERFORMANCE
Performance means the doing of that which is required by a contract. It takes place when the
parties to the contract fulfill their obligations arising under the contract within the time and in

49
the manner prescribed. In such a case, the parties are discharged and the contract comes to
an end.
But if only one party performs the promise, he alone is discharged, such a party gets a right of
action against the other party who is guilty of breach.
Performance of a contract is the most usual mode of its discharged it may be:
(1) Actual performance, or (2)attempted performance
I) Actual performance is when both the parties perform their promise and the contract
is thus discharged. Performance should be complete, precise and according to the
terms of the agreement.
II) Attempted performance or tender is where an offer to perform the obligation under
the contract is made by the promisor but the promisee refuses to accept the
performance. A contract is deemed to be performed in case of a valid tender and the
tenderer is thus discharged from the responsibility for non- performance.
DISCHARGE BY AGREEMENT OR CONSENT
As it is the agreement of the parties which binds them, so by their further agreement or
consent the contracts may be terminated.
The rule of law in this regard is as follows:Eodem modo quo quid, constituitur eodem modo
destruitur i.e a thing may be destroyed in the same manner in which it is constituted.
This means a contractual obligation may be discharged by agreement which may be express or
implied. Example. ‘A’ sells a car to ‘B’ on approval with the condition that it should be returned
within seven days if it is found wanting. Consent to return the car is given to B at the time of
the formation of a contract.
Cases of discharge by mutual agreement are as follows:
(a)Novation; takes place when:
(i) A new contract is substituted for an existing one between the same parties. or (ii)a contract
between two parties is rescinded in consideration of a new contract being entered into on the
same terms between one of the parties and a third party.
(b)Rescission; takes place when all or some of the terms of the contract are cancelled. It may
occur
(i) By mutual consent of the parties or
(ii) Where one party fails in the performance of his obligation. In such a case, the other party
may rescinds the contract without prejudice to his rights to claim compensation for the breach
of contract. Example: A promises to supply certain goods to B six months after date. By that
date, the goods go out of fashion. A and B may rescind the contract.
(c) Alteration: may take place when one or more of the terms of the contract is/are altered by
the mutual consent of the parties to the contract. In such a case, the old contract is
discharged.
(d)Remission: means acceptance of a lesser fulfillment of the promise made, e.g. acceptance of
a leaser sum than what is contracted for, in discharged of the whole of the debt.
(e) Waiver; takes place when the parties to a contract agree that they shall no longer be bound
by the contract. This amounts to mutual abandonment of rights by the parties to a contract.
(f) Merger: takes place when an inferior right accruing to a party under a contract merges into
a superior right accruing to the same party under the same or some other contract. Example;P
holds property under a lease. He later buys the property. His rights as a lessee merge into his
right as an owner.
DISCHARGE BY IMPOSSIBILITY OF PERFOMANCE
If an agreement contains an undertaking to perform impossibility, it is void ab initio.
Impossibility of performance may fall into either of the following categories:

a)Impossibility existing at the time of agreement: An agreement to do act impossible in

itself is void.. The fact of impossibility may be.

i) Known to the parties: This is known as absolute impossibility. In case of absolute

impossibility, the agreement is void ab initio. For example, when ‘A’ agrees with ‘B’

50
 to discover treasure by magic, or undertake to put life into the dead wife of ‘B’ the
agreement is void.
ii) Unknown to the parties: Where at the time of making the contract both the parties
are ignorant of the impossibility, as in the case of destruction of subject-matter to
the ignorance of both the parties,
The contract is void on the ground of mutual mistake. If, however, the promisor alone knows of
the impossibility of performance at the time of making the contract, he shall have to
compensate the promisee for any loss which such promisee sustains through the non-
performance of the promise.

Example, (a) A sold to B certain goods supposed to be on a voyage. The goods had ceased to
exist due to the perils of the sea. Held, the contract was void [couturier v. Hastlie, (1856) 5 H.C.
L.673].

b)Impossibility arising subsequent to the formation of contract: Impossibility which arises

subsequent to the formation of a contract. Is called post-contractual or supervening
impossibility. In such a case, the contract becomes void when the act becomes impossible or
unlawful].
Impossibility of performance of a contract as a general rule, is no excuse for non –performance
of a contract; but one which is out of control of the parties, the parties are discharge from
further performance of the obligation under the contract.

DISCHARGE BY SUPERVENING IMPOSSIBILITY

A contract is discharge by supervising impossibility in the following case:
a)Destruction of subject-matter of contract: When the subject- matter of a contract,
subsequent to its formation, is destroyed without any fault of the parties to the contract, the
contract is discharge.
Example, ‘C’ let a music hall to’ T’ for a series of concerts for certain days. The hall was
accidentally burnt down before the date of the first concert. Held, the contract was void [Taylor
v. Caldwell,(1863) 3 B. & S. 826]

b)Non-existence or non-occurrence of a particular state of things: Sometimes, a contract is

entered into between two parties on the basis of a continued existence or occurrence of
particular state of things. If there is any change in the state of things which formed the basis of
the contract, or if the state of things which ought to have occurred does not occur the contract
is discharged.
Example. ‘A’ and ‘B’ contract to marry each other. Before the time fixed for the marriage, ‘A’
goes mad. The contract becomes void.

This kind of failure of the object of a contract is often called “frustration of the contract”.

c)Death or incapacity for personal service: Where the performance of a contract depends on
the personal skill or qualification of a party, the contract is discharge on the illness or
incapacity or death of that party. The man’s life is an implied condition of the contract.
Example: An artist undertook to perform at a concert for a certain price. Before she could do
so, she died hence the contract was discharged.

d)Change of law or stepping in of a person with statutory authority: When, subsequent to

the formation of a contract, change of law take place or the government takes some power
under some ordinance so that the performance of the contract becomes impossible, the
contract is discharged. Example: ’D’ enters into a contract with ‘P’ on 1 st march for the supply
of certain imported goods in the month of September of the same year. In June by an Act of
parliament, the import of such goods is banned. The contract is discharge.

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e)Outbreak of war: A contract entered into with an alien enemy during war is unlawful and
therefore impossible of performance. Contracts entered into before the outbreak of war are
suspended during the war and may be revived after the war is over. Example. ‘A’ contracts to
take in cargo for ‘B’ at a foreign port.’ A’s Government afterwards declares war against the
county in which the port is situated. The contract becomes void when war is declared.
IMPOSSIBILITY OF PERFORMANCE- NOT AN EXUSE
“Impossibility of performance is, as a rule, not an excuse of non-performance,” Ordinarily when
a person undertakes to do something, he must do it unless its performance becomes absolutely
Impossible due to any of the circumstances already discussed.
In the following cases, a contract is not discharged on the ground of supervening impossibility:
1. Difficulty of performance: a contract is not discharge by the mere fact that it has become
more difficult of performance due to some un-contemplated events or delays. Example. (a)’ ‘A
sold a certain quantity of Finland timber to ‘B’ to be supplied between July and September.
Before any timber was supplied, war broke out in the month of August and transport was
disorganized so that ‘A’ could not bring any timber from Finland. Held, the difficulty in getting
the timber from Finland did not discharge ‘A’ from performance.
2. Commercial impossibility: A contract is not discharge merely because expectation of higher
profits is not realized, or the necessary raw material is available at a higher price because of
the outbreak of war, or there is a sudden depreciation of currency. Example. ‘A’ promised to
send certain goods from South Sudan to Kenya in September. Before the goods were sent, war
broke out and there was a sharp increase in shipping rates. Held, the contract was not
discharge.
3. Impossibility due to failure of third person: Where a contract could not be performed
because of the default by a third person on whose work]
the promisor relied, it is not discharge. Example: ‘A’, a wholesaler, entered into a contract with
‘B’ for the sale of a certain type of cloth to be produced by ‘C’, a manufacturer of that cloth. ‘C’
did not manufacture that cloth. Held, ‘A’ was liable to ‘B’ for damages.
4. Strikes, lock-outs and civil disturbances: Events such as these do not discharge a
contract unless the parties have specifically agreed in this regard at the time of formation of the
contract. Example: The unloading of a ship was delayed beyond the date agreed with the ship
owners owing to a strike of dock workers. Held, the ship-owners were entitled to damages, the
impossibility of performance being no excuse.
5. Failure of one of the objects: When a contract is entered into for several objects, the failure
of one of them does not discharge the contract.
DISCHARGE BY LAPSE OF TIME
The Limitation Act, lays down that a contract should be performed within a specified period,
called period of limitation. If it is not performed, and if no action is taken by the promisee
within the period of limitation, he is deprived of his remedy at law. For example, the price of
goods sold without any stipulation as to credit should be paid within three years of the delivery
of the goods. Where goods are sold on credit to be paid for after expiry of a fixed period of
credit, the price should be paid within three years of expiry of period of credit. If the price is not
paid and the creditor does not file a suit against the buyer for the recovery of price within three
years, the debt becomes time barred and hence irrecoverable.
DISCHARGE BY OPERATION OF LAW
A contract may be discharge independent of the wishes of the parties, i.e. By operation of law.
This includes discharge-
(a) By death: in contracts involving personal skill or ability, the contract is terminated on
the death of a promisor. In other contracts, the rights and liabilities of a deceased
person pass on to the legal representatives of the deceased person.
(b) By merger.
(c) By insolvency: When a person is adjudging insolvent, he is discharge from all liabilities
incurred prior to his adjudication.

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 (d) By unauthorized alteration of the terms of a written agreement: Where a party to a
contract makes any material alteration in the contract without the consent of the other
party. The other party can avoid the contract.
(e) By rights and liabilities becoming vested in the same person: Where the rights and
liabilities under a contract vested in the same person. Example: when a bill gets into the
hands of the acceptor, the other parties are discharge.

DISCHARGE BY BREACH OF CONTRACT

Breach of contract means a breaking of the obligation which a contract imposes. It occurs
when a party to the contract without lawful excuse does not fulfill his contractual obligation or
by his own act makes it impossible that he should performed his obligation under it. It confers
right of action for damages on the injured party-
Breach of contract may be-
a)Actual breach of contract, or b)Anticipatory or constructive breach of contract
ACTUAL BREACH OF CONTRACT
It may take place:
a)At the time when the performance is due: Actual breach of contract occurs, when at the time
when the performance is due, one party fails or refuses to perform his obligation under the
contract. Example. A agrees to deliver to B 5 bags of wheat on 1st January .He does not deliver
the wheat on that day. There is a breach of contract.
b)During the performance of the contract: Actual breach of contract also occurs when during the
performance of the contract, one party fails or refuses to perform his obligation under the
contract.
This refusal to perform may be by-
1)Express repudiation (by word or act): Where there has been some performance of the contract
and one party by his word or act refuses to continue to perform his obligation in some essential
respect, the other party can treat the contract as no longer binding on him and sue for breach
of contract.
2)Implied repudiation (impossibility created by the act of a party to the contract): If a party,
During the performance, makes by his own act the complete performance of the contract
impossible, the effect is as if he has breached the contract, and the other party is discharged
from the further performance of the contract.

ANTICIPATORY BREACH OF CONTRACT

It occurs when a party to an executory contract declares his intention of not performing the
contract before the performance is due. He may do so-
a)By expressly renouncing his obligation under the contract. Example. A undertakes to supply
certain goods to B on 1st January. Before this date, he informs B that he is not going to supply
the goods. This is anticipatory breach of contract by express repudiation.
b)By doing some act so that the performance of his promise becomes impossible.
REMEDIES FOR BREACH OF CONTRACT
Where there is a right, there is a remedy. A contract gives rise to correlative rights and
obligation. A right accruing to a party under a contract would be of no value if there were no
remedy to enforce that right in a court of law in the event of its infringement or breach of
contract. A remedy is the means given by law for the enforcement of a right.
When a contract is broken, the injured party ( i.e. the party who is not in breach) has one or
more of the following remedies:
(1) Rescission of the contract.
(2) Suit for damages.
(3) Suit upon quantum meruit.
(4) Suit for specific performance of the contract
(5) Suit for injunction.

RESCISSION

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When a contract is broken by one party, the other party may sue to treat the contract as
rescinded and refuse further performance. In such a case, he is absolved of all obligation under
the contract. Example. A promises B to supply 10 bags of cement on a certain day. B agrees to
pay the price after the receipt of the goods. A does not supply the goods. B is discharge from
liability that is to pay the price.
DAMAGES
Damages are a monetary compensation allowed to the injured party by the Court for the loss or
injury suffered by him by the breach of contract. The object of awarding damages for the
breach of contract is to put the injured party in the position in which he would have been had
there been performance and not breach. This is called “doctrine of restitution”
The foundation of awarding damages is compensation for the pecuniary loss which naturally
flows from the breach.
When a contract has been broken, the injured is entitled to-DAMAGES ARISING NATURALLY-
ORDINARY DAMAGES
When a contract has been broken, the injured party can recover from the other party such
damages as naturally and directly arose in the usual course of things from the breach. This
means that the damages must be the proximate consequence of the breach of contract. These
damages are known as ordinary damages. Example: A contract to buy of B at kshs.950 per
quintal of rice, no time being fixed for delivery. A afterwards informs B that he will not accept
the rice if tendered to him. The market price of rice on that day is Kshs. 930 per quintal. B is
entitled to receive from A compensation at the rate of Kshs. 20 per quintal.
In a contract for the sale of goods, the measure of damages on the breach of a contract is the
difference between the contract price and the market price of such goods on the date of the
breach. The price of the nearest and best available substitute may be taken into account in
calculating damages.
DAMAGES IN CONTEMPLATION OF THE PARTIES-SPECIAL DAMAGES
Damages other than those arising from the breach of a contract may be recovered if such
damages may reasonably be supposed to have been in the contemplation of both parties as the
probable result of the breach of the contract, such damages, known as special damages,
cannot be claimed as a matter of right. These can be claimed only if the special circumstances
which would result in a loss in the case of breach of a contract, are brought to the notice of the
other party. Example; S sent some specimen of his goods for exhibition at an agricultural show.
After the show he entrusted some of his samples to an agent of a railway company for carriage
to another show ground at New Castle. On the consignment note he wrote “Must be at a New
Castle Monday certain”. Owing to default on the part of the railway company, the sample
arrived late for the show. Held, S could claim damages for the loss of profit at the show.
VINDICTIVE OR EXEMPLARY DAMAGES
Damages for the breach of a contract are given by way of compensation for loss suffered, and
not by way of punishment for wrong inflicted. Hence,’ vindictive’ or ‘exemplary’ damages have
no place in the law of contract because they are punitive (involving punishment) by nature. But
in case of (a) breach of a promise to marry, and (b) dishonor of a cheque by a banker wrongfully
when he possesses sufficient funds to the credit of the customer, the Court may award
exemplary damages.
NOMINAL DAMAGE
Where the injured party has not in fact suffered any loss by reason of the breach of a contract,
the damages recoverable by him are nominal, i.e. very small, for example, Kshs.5/=. These
damages merely acknowledge that the plaintiff has proved his case and won. Example: A firm
consisting of four partners employed B for a period of two years. After six months two partners
retired, the business being carried on by the other two. B declined to be employed under the
continuing partners. Held, he was only entitled to nominal damages as he had suffered no loss
[Brace v. Calder, (1895)2 O.B253].
DAMAGES FOR LOSS OF REPUTATION
Damages for loss of reputation in case of breach of a contract are generally not recoverable. An
exception to this rule exists in the case of a banker who wrongly refuses to honor a customer’s

54
cheque. And the rule of law is: the smaller the amount of the cheque dishonored, the larger
the amount of damages awarded.
DAMAGES FOR INCONVENIENCE AND DISCOMFORT
Damages can be recovered for physical inconvenience and discomfort. The general rule in this
connection is that the measure of damages is not affected by the motive or the manner of the
breach. Example. A was wrongfully dismissed in a harsh and humiliating manner by G from
his employment. Held, (a) A could recover a sum representing his wages for the period of notice
and the commission which he would have earned during that period: but (b) he could not
recover anything for his injured feelings or for loss sustained from the fact that his dismissal
made it more difficult for him to obtain employment.
If, however, the inconvenience or discomfort caused by breach is substantial, the damages can
be recovered on the ground of fairness.
MITIGATION OF DAMAGES
It is the duty of the injured party to take all reasonable steps to mitigate the loss caused by the
breach. He cannot claim to be compensated by the party in default for loss which he ought
reasonably to have avoided.
DIFFICULTY OF ASSESSEMENT
Although damages which are incapable of assessment cannot be recovered, the fact that they
are difficult to asses with certainty or precision does not prevent the aggrieved party from
recovering them. The Court must do its best to estimate the loss and a contingency may be
taken into account.
COST OF DECREE
The aggrieved party is entitled, in addition to damages, to get the cost of getting the decree for
damages. The cost of suit for damages is in the discretion of the court.
DAMAGES AGREED UPON IN ADVANCE IN CASE OF BREACH
If a sum is named in a contract as the amount to be paid in case of its breach, or if the
contract contains any other stipulation by way of a penalty for failure to perform the
obligations, the aggrieved party is entitled to receive from the party who has broken the
contract a reasonable compensation not exceeding the amount so named. Example. A
contracts with B to pay B kshs.10, 000 if he fails to pay B Kshs.5,000 on a given day. B is
entitled to recover from A such compensation not exceeding Kshs. 10,000 as the court
considers reasonable.
QUANTUM MERUIT
The phrase’quantum meruit’ literally means ‘as much as earned’. A right to sue on a quantum
meruit arises where a contract, partly performed by one party, has become discharged by the
breach of the contract by the other party. The right is founded not on the original contract
which is discharged or is void but on an implied promise by the other party to pay for what has
been done.
SPECIFIC PERFORMANCE
In certain cases of breach of a contract, damages are not an adequate remedy. The court may,
in such cases, direct the party in breach to carry out his promise according to the terms of the
contract. This is a direction by the court for specific performance of the contract at the suit of
the party not in breach.
Some cases in which specific performance of a contract may, in the discretion of the court, be
enforced are as follows:
(a) when the act agreed to be done is such that compensation is money for its non-performance
is not an adequate relief.
(b)When there exists no standard for ascertaining the actual damage caused by the non-
performance of the act agreed to be done
(c)When it is probable that the compensation in money cannot be got for the non-performance
of the act agreed to be done.
SPECIFIC PERFORMANCE WILL NOT BE GRANTED WHERE-
(a) Damages are an adequate remedy;
(b) The contract is not certain, or is inequitable to either party;

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 (c) The contract is in its nature revocable;
(d) The contract is made by trustee in breach of their trust;
(e) The contract is of a personal nature,.e,g a contract to marry;
(f) The contract is made by a company in excess of its powers as laid down in its
Memorandum of Association;
(g) The court cannot supervise its carrying out, e.g. a building contract.

INJUNCTION
Where a party is in breach of negative term of a contract (i.e., where he is doing something
which he promised not to do), the court may, by issuing an order, restrain him from doing
what he promised not to do. Such an order of the court is known as injunction. Example: N, a
film actress, agreed to act exclusively for W for a year and for no one else. During the year she
contract to act for Z .Held, she could be restrained by injunction from doing so (Warner Bros.
V. Nelson,(1937) 1 K.B 209).

RECTIFICATION OR CANCELLATION
When through fraud or a mutual mistake of the parties, a contract or other instrument does
not express their real intention, either party may institute a suit to have the instrument
rectified.
A written document which is void or voidable against a person may cause him in some cases
serious injury, if it is left outstanding. In such a case, if he has any such apprehension, he may
file a suit to have the document adjudged void or voidable. The court may, in its
discretion,adjudge such a document void or voidable and order it to be delivered up and
cancelled.

TOPIC 6
THE LAW OF TORTS
INTRODUCTION
A tort is civil wrong which gives rise to an action at common law for unliquidted damages,
although in some cases some other remedy may be required, such as an injunction or specific
restitution. The main object of the law of torts is to compensate a person for the damage which
he has suffered.
The right of action in torts springs from the breach of a duty which a person owes to other
persons in general. The duty is created either by the common-law or statute, e.g. Occupiers
Liability Act (Cap 34), Occupational safety and Health Act.
A breach of contract is also a civil wrong, but the action here springs from the breach of a duty
which was created by the parties and stipulated in an agreement. The agreement creates rights
and duties which exist only between the parties. The basic remedy which the plaintiff requires
in actions in tort and for breach of contract is damages (the right to be compensated for having
suffered loss).
Crimes are public wrongs which are prosecuted by the state and punished by the Courts. The
object here is punishment; although provision is made for compensation to be awarded in
certain cases.Sometimes the same facts can give rise to a criminal prosecution and an action in
tort. For example “X is injured in a car accident caused by the negligence of “Y”. The police may
decide to prosecute “Y” for the offence of driving a car whilst under the influence of drink. If “Y”
is found guilty of this offence, he will be punished, but this, while it may give satisfaction to
“X”, does not compensate him for the injuries which he has suffered, the cost of hospital
treatment, and loss of earnings and so on. “X” may decide to sue “Y” for the tort of negligence

56
and if successful he will recover damages. It might be added that proof of “Y’s conviction in the
Criminal court can now be used in evidenced by “X” in civil proceedings.
But, the law does not always give remedy when damage has been suffered. Such cases are
known as damun sine injuria, i.e damage which is not the result of a legally remediable wrong.
For example: a shopper may be driven out of business as a result of price cutting by a
competitior,the shopkeeper has suffered damage, but he has no remedy. Conversely, there are
cases where a wrongful act is unaccompanied by any damage yet it is actionable at law- injuria
sine dumno, e.g. libel, trespass to land.

NEGLIGENCE

Negligence may be an element in some torts, but it is also an independents tort, which has
been greatly developed by case law and by statute.
Definition
The classical definition of negligence was given in the case of Blyth v.Girmingharm
Waterworks Co. (1886), 11 Ex.781, by Alderson. “The omission to do something which a
reasonable man,guided upon those considerations which ordinarily regulate the conduct of
human affairs, would do, or doing something which a prudent and reasonable man would not
do”.
To succeed in an action for negligence, the plaintiff must prove THAT:
1. The defendant owes the plaintiff a legal duty of care;
2. The defendant was in breach of that duty;
3. As a result of the breach of that duty the plaintiff suffered damage.
The question as to whether the defendant owed the plaintiff a legal duty of care is for the court
to decide.
The test to be applied in deciding whether the duty existed is to be found in Lord Atkins’s
judgment in Donoghue v. Stevenson, (1932) A.C.562.
“The rule that you are to love your neighbor” becomes, a law, “you must not injure your
neighbor”, the lawyer’s question would be, who is my neighbor? Receives a restricted reply. You
must take reasonable care to avoid acts or omissions which you can reasonably foresee would
be likely to injure your neighbor .Who, then, in law, is my neighbor? The answer seems to be-
persons who are so closely and directly affected by my act that I ought reasonably to have them
in contemplation as being so affected when I am directing my mind to the acts or omission which
are called in question.
“In the case in question, the plaintiff suffered injuries as a result of consuming a bottle of
ginger beer which contained the decomposed remains of a snail”. The retailer from whom the
ginger beer was purchased had obtained it from the manufacturer in a sealed opaque bottle
and thus had no opportunity to examine the contents. It was held by the House of Lords that
where a manufacturer produces goods in such a way that there is no possibility of intermediate
examination, he owes a legal duty of care to the ultimate consumer. The House never decided
whether in fact a breach of that duty had taken place.
Whether a legal duty of care exists depends, therefore, upon whether what took place was
reasonable foreseeable. The reported cases are only particular instances of when the duty did
exist.
There are certain dangers here as pointed out by Lord Wright in Tidy v. Battman, (1934)
1K.B 319, (cited with approval by law, J.A. in Usha v.Bachubhai, (1965) E.A 433).
“That no case is exactly like another, and no principle of law can in my opinion be extracted
from those cases. It is unfortunate that questions which are questions of fact-alone could be
confused by importing into them as principles of law, a course of reasoning which has no
doubt properly been applied in deciding other cases on other sets of facts.
It is clear from the cases that a motorist owes a legal duty of care towards fellow
motorists and pedestrians, the surgeon and the dentist towards their patients, the
manufacturer towards consumer, the contractor towards developer and tenants, the

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Railway and bus Companies towards their passengers and so on. As one judge put it, “the
categories of negligence are never closed.
The railway has a duty to use reasonable care to ensure that level crossings on public roads
are reasonability safe, but the duty of the engine driver is to watch the tracks ahead for objects
on the tracks and to watch for and observe signs and not for approaching motorists.
Once it has been established that the defendant owed the plaintiff legal duty of care, the
plaintiff must prove that there was a breach of that duty. This is a question of fact. The
standard required here is that of the reasonable man.
In sheriff v.sethna,(1963), the court of Appeal for Eastern Africa held that a motorist was not
entitled to assume that traffic would conform to a “Yield sign,In other words, if the reasonable
man had been driving the car in question, he would have realized that there are some motorists
who ignore traffic signs.
The standard of care required will vary according to the facts of the case. The tort will not
require the same standard of the Good Samaritan as of the doctor. A higher standard of care
will be required where children or disabled persons are likely to be injured, but in the latter
case the defendant’s must have knowledge of the disability.

In Namyalo v. Rataushi, (1968) E.A.14, the plaintiff’s husband was run over and killed by a
lorry driver, the defendant’s servant. The deceased was nearly blind. The driver of the lorry,
going at about 40 K.P.H. saw the deceased about to cross the road, walking quickly. The driver
took evasive action, but failed to miss him. The deceased was accompanied and there was
nothing to indicate that he was nearly blind. It was held that the driver had no means of
knowing that the deceased was nearly blind and the plaintiff had failed to prove negligence
(Haley v. London Electricity Board, (1965) A.c778, was distinguished)
As a general rule, the plaintiff has to prove that the legal duty of care to him was broken.
However, in some cases negligence will be presumed. When the facts are explicable on no other
ground but that there was negligence on the part of the defendant, the court will apply the
doctrine of re ipsa loquitur (the thing speaks for itself).For example, barrel of flour falling from a
warehouse, a stone found in a bun, crates falling of a passing lorry.
In ogl v. Muruthii (Civil Appeal No. 125 of 1984), the Court of Appeal applied the doctrine to
the appellant, who was on a pedestrian (zebra) crossing at the time of the accident.
IN muka v. V.K. yo wooden shuttles falling from a building, in course of construction, on the
public highway, thereby causing a fatal accident. In the absence of any explanation on the part
of the defendant, the plaintiff will have discharged the burden of proof. But, as Sir Alistair
Forbes, V.p Said in Msuri Muhhiddin v. Nazzar Bin Self, (1960) E.A. The respondent can
avoid liability if they can show either that there was no negligence on their part which
contributed to the accident; or that there was probable cause of accident which did not
contribute to negligence on their part; or that the accident was due to circumstances not
within their control.
As just, it is clear that where the cause of the accident was not under the control of the
appellants the doctrine is inapplicable (Molco Textiles Ltd .v. Yonasani, (1972) E.A.380).
Neither is the doctrine applicable where the facts of the accident are known (Byarugaba
v.Kilembe Mines Ltd., (1972) E.A. 341).When the doctrine is not applicable, then the plaintiff
must prove negligence (Berkway v. South Wales Transport Co, Ltd., (1948) 2 All E.R.460.
Once the plaintiff has established the breach of the legal duty of care, he must prove the injury
suffered was caused by the breach. A break in the line of causation may make the damage too
remote. In Thysen v. Wakisu Estate Ltd., (1960) E.A.288, the plaintiff was injured in a collision
caused by the negligence of the defendant. While unconscious for less than a half an hour, a
sum of money was stolen from his person. The defendants were held not liable for this loss,
since this could not have been foreseen and was novus actus intervenes (an independent
intervening act).
Once negligence has been established, two tests can be propounded as to:
1. Whether they were reasonably foreseeable or not (Re polimis, (1921) 3 K.B.560).

58
 2. A man must be considered to be responsible for the probable consequences of his act
(Overseas Tankships (U.K)Ltd., v.Motors Dock and Engineering Company Ltd.,
(1961).In other word, a man is only responsible for what is reasonably foreseeable. It
appears that the latter test is the one applicable in Kenya.
Denning,L.J…..referred to in Re polemis…and had said that the consequences of negligence do
not depend upon foreseability but on causation, of which foreseability was a relevant factor.
In the light of recent decision of the Privy Council in overseas Tankiship (u.K0Ltd v. Morts
Docks and Engineering Co. Ltd. It would appear that foreseability ought to be regarded as the
decisive test rather than as a relevant factor.

Contributory negligence
If the plaintiff has been guilty of contributory negligence, the court has power to reduce the
damages awarded to the plaintiff (has shown lack of reasonable care for his own safety, e.g.
driving a car with no rear light, or defective brakes).
The law Reform Act (Cap. 26), section 4 (1) provide that, “Where any person suffers damages as
a result partly of his own fault and partly of the fault of any other person or persons, a claim in
respect of that damage shall not be defeated by reason of the fault of the person suffering the
damage, but the damages recoverable in respect thereof shall be reduced to such extent as the
court thinks just and equitable having regard to the claimant’s share in the responsibility for
the damage”.
The court apportions the damages according to the blame- worthiness of the parties; the
question to be determined is one of fact. In Karisa v. solanki, (1969) E.A.318, the Court of
Appeal for East Africa reiterated that it would not normally interfere with the finding of a trial
judge at contrtributing degree of blame save in exceptional circumstances.
The majority of cases of negligence spring from physical injuries suffered as the result of an act
of negligence. But, the tort has been extended so as to include cases of nervous shock.
Provided that nervous shock was reasonably foreseeable as result of the negligence of the
defendant, damages are recoverable. A further extension of the tort has permitted actions
where financial or economic loss has been sustained as a result of negligent misstatement or
advice. In winther v. Arbon Langrish and southernLtd.,(196) E.A .292, Harris, J.,in applying
the decision in Hedley Byrne and Co.Ltd v. Heller and partners Ltd.,(1964) A.c.465) cited
with approval the following extract from the judgment of Lord Morris in that case. “My Lords, I
consider that it follows and that it should now be regarded as settled that if someone
possessed of a special skill undertakes, quite irrespective of contract, to apply that
skill for the assistant of another person who relies upon such skill, a duty of care will
arise”.
In winter’s case, it was held on the facts that the relationship of insurance broker and insured
gave to a duty of care on the part of the broker, independent of contract. Many professional
people could be affected by the implication of such a decision, independent of any possible
action in contract. The extent of such implications will be worked out by subsequent decisions
of the Kenya Courts.
The case of (Osinya v. Kenya Commercial Bank Ltd. (1976) Kenya LR 287) closely related to
the study of common law negligence are the common law duties owned by an employer to his
employer. These duties are as follows:
1. To provide a competent staff of men: If an employer is injured because of the incompetence
of a fellow employee, then the employee has a right of action against his employer.
2. To provide adequate plant and material: If an employee is injured as result of the employer
providing defective equipment, he will have a right of action against the employer. As we shall
see later, the duties imposed upon the employer by the Factories Act (Cap.514) supplement
and reinforce these common law duties.
3. To provide a safe system of work: This involves the way work is done, safety devices,
precautions and warning notices. The employment must insist that the proper safety
precautions are taken. The duties imposed insist that the safety precautions are taken. The
duty imposed upon the employer is high one, as it recognizes that workers are sometimes

59
heedless of their own safety. One judge, concerned that the duty mighty be pitted too high said,
I refused to accept that the relationship between an employer and an employee is similar to
that between a nurse and an imbecile child.
The Factories Act makes detailed provisions relating for example to the guarding of dangerous
machinery. If a worker is injured because a machine is not properly guarded, he may sue his
employer for breach of statutory duty and/or negligence. The Act imposes many duties on
employers, but the breach of these duties does not always give a civil remedy. The Factory
Inspectorate of the Ministry of Labour can institute proceedings in the Employment & Labour
Relations Court.
Further statutory modifications to the rules relating to negligence have been made by the
Occupiers Liability Act (Cap) 34. THE Act provides that the occupier of premise owes’ the
common duty of care” to all the visitors. Visitors are persons who are lawfully on the occupier’s
premises.
The common duty of care is also defined as “a duty to take such care as in all the
circumstances of the case is reasonable to see that the visitors will be reasonably safe using
the premise for the purposes for which he is invited or permitted by the occupier to be there.
The duty concerns” dangers due to the state of the premises or to things done or omitted to be
done on them.”Section 2(1).In Lougher v. Kenya safari Lodges and Hotel; s Ltd.,
(1977)Kenya LR 38, the plaintiff ( who happened to be a solicitor) was a guest at the
defendant’s hotel. He slipped on the floor outside a changing room in the hotel swimming pool
area broke an ankle. A Claim for damages fro breach of the common duty against the probable
wetness of the floor due to bare footed swimmers walking on it. The circumstances referred to
in section 2(1) are conditioned by two factors contained in section 3(3).
(a)An occupier must be prepared for children to be less careful than adults; and
(b) An occupier may accept that a person in the exercise of his calling will appreciated and
guard against any special risks ordinarily incident to it, so far as the occupier leaves him free
to do so.
The occupier is not liable for the negligence of an independent contractor, provided he is
satisfied that the contractor was competent and that the work had been properly performed
(section 3 (4) (b).Secondly, the occupier will not be liable if the visitor has willing accepted a
risk (section 3 (5).
The Act does not affect the position of trespassers. A trespass takes land as he finds it. The
only way qualification to this rule is that the occupier must not set deliberate traps.
The Occupiers Liability Act has gone a long way towards clarifying the duties of an occupier of
premises towards pardons who are lawfully on his premises; the position [prior to the Act was
far from clear. The meaning of the Act is clear and perhaps this explains the absence of
reported case under the Act since its defendants.

TYPES OF TORTS/SPECIFIC TORTS

The essential characteristic of some of the main torts will now be considered.
1. Trespass to the person
This embraces assault, battery, and false imprisonment.
ASSAULT
Assault is an act of the defendant which causes the plaintiff reasonable apprehension of the
infliction of violence on his person by the defendant.
BATTERY
Battery is the inflicting of violence.
EXAMPLES: The pointing of a gun at a person can amount to assault (unless the plaintiff knew
it was not loaded) and the firing of the gun with the result that the plaintiff is injured amounts
to battery. Of course, such an example also amounts to a criminal act, e.g. attempted murder.
Words alone are not sufficient to amount to assault, although they could discount what could
otherwise be assault.

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Many technical batteries are committed in everyday life, e.g. the jostling that goes on in public
places, but they do not give rise to civil proceedings as people consent to such things.
A person can use force in defense of his person or property and the extent of the force in
defense has been discussed.
Assault and battery are actionable per se, i.e. plaintiff does not have to prove that he has
suffered damage.
Defenses to assault and battery are lawfully arrest and volenti non fit injuria (as in sporting
events).
2. False Imprisonment
This does not imply actual imprisonment of any person. The tort is constituted when a person’s
physical freedom is unlawfully restricted. Arrest can be made without a warrant, for example,
in the case of a felony, but if there are no reasonable grounds for suspecting that a person
has committed a felony, then the arrest would be unlawful: this would be false imprisonment.
Similarly, if a police officer with a warrant arrested the wrong person. Other examples would be
locking a person in a room, or detaining a person in a room for longer than is reasonably
necessary.
An action for false imprisonment lies when the restraint of a person follows on a prosecution
then the appropriate action, if any, would be one for malicious prosecution (kasana Produce
store v. Kati, (1973) E.A.190).
The English cases, which are of persuasive authority only seem to indicate that the knowledge
of the plaintiff that he has been falsely imprisoned is irrelevant (Meeting v. Graham-white
Aviation Co. ltd., (1919) 122 Lt 44; and that the restraint must be complete (Bird v Jones
(1845), 7 Q.B 742.
Defenses under this tort: A parent exercising parental authority (but, possibly not a husband
exercising any such authority over his wife) or a school teacher exercising a quasi-parental
authority over a pupil, would not be committing false imprisonment in such cases. Again,
Volenti non fit injuria, arrest by a police officer and a private citizen would be a good defence.

3. Malicious Prosecution
In order to succeed in an action for malicious prosecution, the plaintiff must prove four
essential; ingredients:
(a) That the prosecution was instituted by the defendant;
(b) That the prosecution terminated in the plaintiff’s favour;
(c) That the prosecution was instituted without reasonable and probable cause;
(d) That the prosecution was instituted with malice.
The person who institutes the proceedings need not be a party to them for example, the
defendant could be a police officer who investigates a crime and following his report the
Director of Public Prosecution may direct prosecuation.Again, in a case where the police decline
to prosecute and a private individual brings a private prosecution, he could, if the accused
were acquitted, expose himself to an action for malicious prosecution.
The normal way in which a prosecution will terminate in favour of the plaintiff will be for the
plaintiff to be acquitted of the charge brought against him. There are other ways. The
withdrawal of a a case by prosecutor and no re-charge constitutes a determination in favour of
the accused (Egbema v. West Nile District Administration, (1972) E.A 60). An acquittal on
appeal would also appear to be in favour of the plaintiff (Herniman v. smith, (1938) A.C.305.
“Reasonable and probable cause” means an honest belief in the guilt of the accused based
upon reasonable grounds.”If it is shown to the satisfaction of the judge that a reasonable and
cautious man would not have been satisfied that there was a proper case to put before the
court, then absence of reasonable and probable cause has been established”, per Rudd, j in
kagane v.Attoney –General, (1969) E.A. 643.The test laid down by Rdd, J. was referred to
in the case Murunga v. Attorney-General, (1979 Kenya LR 138. The plaintiff paid by three
post-dated cheques for certain goods. The first two cheques were honored, but payment of the
third cheque was countermanded by the plaintiff as he feared that he had insufficient funds to
honour the cheques. Complaint was made to the police and the plaintiff accompanied a police

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officer to the police station. The plaintiff endeavored to explain to a police Inspector that this
was a civil matter, but to no avail. Friends of the Plaintiff even produced Shs.2, 000/00 which
would have met the amount owed on the countermanded cheque. The plaintiff was locked up
in a police cell for a few hours; release on bail, reported back the next day, this time was locked
up in the police cell for four days, and then released on police bond. The trial magistrate found
that there was no case to answer and acquitted the plaintiff. The plaintiff’s actions for
malicious prosecution succeeded and he was awarded Shs.20.000/00 damages.
It is on the ground of “lack of reasonable and probable cause’ that most actions, or threatened
actions of malicious prosecution, fail. It does not follow that because a man is acquitted of a
criminal charge that the person instituting the prosecution lacked reasonable and probable
cause for bringing it in the first place.
Malice means spite, invective or some wrongful motive. Lack of reasonable and probable cause
cannot be relied upon by itself to show malice.
4. Trespass to land
An unlawful interference with another person’s possession of land constitutes trespass. The
view formerly held was that the owner of the land would not generally have a right of action
unless he was in possession of the land. The owner out of the possession would have a right of
action if reversionary interest (where the possssition of land reverts to the Grantor) in the land
was being damaged. However, in Moya Drift farm LTD.V Theuri, (1973) E.A.114, The
appellant was the absolute and indefeasible owner of registered land (registration of titles Act
(Cap.281), section 23), but he was not in actual possession of the land. Nevertheless, the court
of appeal; for East African awarded the appellant a perpetual injunction and mesne profits
against the respondent, who was trespassing on the appellant’s land and refusing the
appellant and its servants entry. As spry, V.p said in this case. The registered proprietors title
on registration and, unless there is any other person lawfully in possession, such as tenant. I
think that title carries with it legal possession: there is nothing in the Act to say or even
suggest that his title is imperfect until he has taken physical possession”. A lessee, a tenant,
who is in possession of land would have a right of action for trespass, but be committed by
unlawfully entering land, abusing a right injury, remaining on land after authority to remain
there has been revoked, or throwing rubbish on to another’s land. It is also possible to commit
trespass to the sub-soil, e.g. excavating for mineral, and trespass to the airspace above a
person’s land, although on the latter point is scanty.
Motive is irrelevant; the defendant can be liable even though he thinks he has a right of entry
or does know that he is trespassing.
Trespass is also a crime (trespass Act, there are frequent circumstances in which trespass is
not a crime, but only tort. Trespass to land is actionable per se, i.e. without proof of special
damage.
A person will have a good defense to trespass if he can prove that he has a license (a form of
permission), express or implied license to enter upon land when delivering goods or rendering a
service. Entry in many cases will be justified by law .Police officers have both statutory and
common law powers to enter upon land; many other officers employed by government
departments, statutory boards and local authorities, can enter upon land pursuant to
statutory authority.
The person in possession of land can always eject a trespasser, provided he uses no more force
than is reasonably necessary. He could sue for damages and for recovering of the land. An
injunction would be rarely granted, unless the trespass was persistent and damages had been
awarded on previous occasion. An interesting exception to what has just been said is found in
Moya Drift Farm Ltd.v. Theuri (supra).Where damage has been caused by trespassing cattle
or a chattel, the cattle or chattel can be detained until the owner of the cattle or chattel has
paid compensation. This remedy is known as distress damage feasant and is an alternative to
an action for damages.
5. TRESPASS TO GOOD, CONVERSION AND DETINUE
(a) Trespass to goods

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This is an unlawful act of direct physical interference with a chattel; which is in the possession
of another person. The most common form this tort will take will be causing damage to goods
or destroying them. Proof of damage is not necessary. Physical contact will usually be present
in most forms of trespass to goods, but an interesting question is raised as to whether an act
on the defendant’s part falling short of physical contact with the plaintiff’s goods may amount
to trespass, the act accompanied of was an order by the appellant to the respondent’s driver to
drive a lorry to the police station as a result of which the respondent was deprived of its use for
forty-nine days. The court of Appeal for Eastern Africa held that unless the driver’s compliance
with the appellant’s order was obtained by duress, the respondent must be taken to have
consented through the driver as his agent to the driving of the lorry to the police station and he
would then have no cause of action in trespass. The absence of any allegation of fact relating to
duress in the plaint was fatal to the respondent’s claim: the plaint did not disclose a cause of
action and was thus struck out.
(b)Conversion
Conversion consist of an unauthorized dealing with the goods or chattels of another which
amounts to a denial of the owner’s title, or is inconstant with the owner’s right to immediate
possession of them. Trespass and conversion usually coincide, but not always so.
For example, if X by mistake takes the hat of Y, this constitutes trespass, but not conversion.
Conversely, if on the same facts X denies Y’s title to his hat, X will have committed conversion in
addition to trespass”.
Other example of conversion are wrongful destruction, wrongful delivery, wrongful
disposition, wrongful taking with the intention of exercising dominion over the goods and
wrongful detention of goods in defiance of the owner’s right.
In Sarenji v. Attorney-General, (1970) E.A.347, a car dealer bought a car innocently and for
value and sold it to the plaintiff. The car had been stolen. The police took the car from the
plaintiff and returned it to its lawful owner without securing a court order to return stolen
goods. The plaintiff sued the Attorney-General for conversion, but the claim failed. Although
the right of a third person is normally not a defense to an action for conversation, the police
had the implied authority of the owner to take and return his stolen car.The motive of the
defendant is again irrelevant, even though he acted in good faith.
In Hollins v. Fowler (1875), LR 757, a cotton broker who had innocently purchased cotton
from a person who had fraudulently obtained possession of it from the plaintiff later sold it to a
manufacturer, receiving a commission on the transaction. It was held that the broker had
committed conversion and was liable to the plaintiff (the true owner) for the full value of the
cotton.
An auctioneer who mistakenly sold goods which did not reach a reserve price would have
committed conversion. A court bailiff who seized goods in execution of judgment, not knowing
that the goods were held under a hire purchase agreement ,I.e. owned by the Hire Purchase
Company, would also have committed conversation.
More difficult problems arise over the question of the finding of a chattel. The student of
criminal law will know of the fallacy of the layman’s principle, “finder keeper” .It is dangerous
half-truth. In tort the problem arises over the question of title than any other person. There are
two exceptions to this rule.
1. The first is the title of the rightful owner; unless he has abandoned the property he has
a better title than the finder.
2. Secondly, there is the title of the person in possession of the land. The better title of the
rightful owner does give rise to any difficulty, but the title of the person in possession of
the land has given rise to problems in English cases.
In south staffs. Water Company.v.Sharman, (1896) 2 Q B.44, the plaintiff employed the
defendant to clean out a pool of water on their land. In the course of this work, he picked a
golden ring. The real owner of the rings could not be found. It was held that the plaintiff had a
better title to the rings than the defendant. The decision is consistent with the earlier decision
in Elwes v. Bringe Gas company (1886),33 Ch.D 562. A gas company took a 99-year lease of
certain land for the purpose of erecting a gas holder. In the course of Ex-cavations they

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discovered a pre-historical boat six feet below the surface. It was held that the boat was the
property of the lessor, However, the earlier decision of Bridges v. Hawkesworth (1851), 21
L.J.Q.B...75, is difficult to reconcile with the two latter decisions. A stranger, who could not be
traced, accidentally dropped a bundle of bank notes to the value of E55 on the floor of the
defendants’ shop. The Plaintiff handed them to the defendant with a view to the same being
restored to their rightful owner, if he should return. It was held that as against everyone but
the true owner the plaintiff was entitled to the money. Although the decision has been the
subject of criticism, it was followed in Hannah v. Peel, (1945) K.b.509. It is difficult to extract
a common principle from these cases, but as they are only of persuasive authority, it leaves the
Kenyan court free from the bondage of such cases.
In some cases, statutory regulations and contractual conditions deal with the procedure which
has to be followed when lost property is found. This will be the case with regard to lost property
found in trains operated by the Kenya Railways Corporation.
Defense to conversion are the retaking of goods (a special self-help), license and distress
damage feasant. The damages recoverable in an action for conversion are based on the value of
the goods at the time of conversion.
(c) Ditenue
Ditenue consists in the unlawful retention of the goods of another. The plaintiff must prove
that:
1. He is entitled to immediate possession of the chattel and;
2. The defendant refused to restore it upon reasonable demand being made.
The action of dentine is primarily one for the recovery of goods rather than damages, But, care
must be exercised in bringing the right action. In Cullen v, Parsram and Hansraj, (1962) E.A
159, an action in ditenue, Newbold, J.A.said, “where, however, the original possession by the
defendant had either destroyed the article or disposed of it, then lack of possession at the time
of the demand is a good defense in an action of ditenue, as the wrong consists not of
withdrawing the articles, but of a previous conversion. ‘The appellant could not recover in an
action of dentine: the facts only disclose conversion. If the plaintiff succeeds he can recover
either the goods or their value. The damages are assessed on the basis of the value of the goods
as at the date of judgment.
6. Nuisance
Nuisances are divided into two main kinds: public nuisances and private nuisance.
Public nuisances also include a certain number of statutory nuisances, i.e. certain matters
which are declared by statute to be a nuisance.
Definition: A public nuisance is “an unlawful act or an omission to discharge a legal duty
which causes inconvenience or annoyance to the public, or interfering with the exercise of
employment of a right common to all.
A public nuisance is a crime, but if a member of the public can prove that he has suffered
some special damage Over and above that suffered by the general public, he will succeed in a
civil action. For example, if an obstruction of the public highway prevents customers from
entering a shop, so that the shopkeeper loses customers, he can sue in private nuisance.
Examples of public nuisances are causing an obstruction of the highway, rendering the
highway dangerous, throwing fireworks in a public place and keeping a disorderly house. In all
these cases a prosecution can be instituted.
Certain statutory nuisance has also been by coined by parliament. For example, the Public
Health Act (Cap. 242) section 118, continuing a long list of statutory nuisance, e.g. premises in
such a state as to be injurious or dangerous to heath or dangerous Health; any stream,
pool…..cesspit…in such a state as to be injurious or dangerous to health; Although some nine-
teen statutory nuisances are created by section 118 proceedings in the Magistrate’s Court can
be taken in all such cases by the local authority for the area in question.
Definition; A private nuisance is an unauthorized act or omission which interferes with a
person’s use or enjoyment of his land. Some forms of unjustifiable interference must take
place. For example, noise, smells, in the form of smoke or fumes, pollution of the air or water,
and access to the public highway. People have always to put up with some sort of discomfort.

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The law of nuisance has been likened to “live and let live “The test of reasonableness can be
applied up to a point, but even the reasonableness of a person’s action will not make lawful
what would otherwise constitute a private a nuisance. Again, what would be reasonable in
rural areas would not necessarily be reasonable in urban areas. Much depends upon the
locality, the act or omission in question, whether the act in question was excessive or not, each
case turns upon its own particular facts.
To hold a party at times of universal gaiety is reasonable, but to hold frequent parties going
into early hours of the morning causing excessive and continuous noise amount to a private
nuisance. To keep a dog in the house is perfectly reasonable, but to keep dog kennels on land
which is in high class residential area could again be actionable. The same dog kennels in a
rural area would not usually amount to a private nuisance.
It has been seen that malice is not a tort in itself (Bradford Corporation v. Pickles), but
malice could be relevant in nuisance, depending upon the surrounding circumstances. In
Hollywood Silver Fox Farm Ltd. V. Emmett,(1936) I ALL E.R. 825,the defendant owned a
farm near the plaintiff’s farm and following a dispute between them he caused guns to be fired,
On his own land but as near as possible to the plaintiff’s breeding pens, during the breeding
season. Such noise was likely to prevent a vixen from mating or to cause her to kill and devour
her young. It was held that the plaintiff’s were entitled to damages and an injunction to
restrain the defendant from firing guns or making other noises in the vicinity of the plaintiff’s
fox farm during the breeding season.
The right to sue for private nuisance rests in the occupier of land, although where there is a
risk of permanent damage, reversionary can sue. To sue, the plaintiff must have a proprietary
interest in the land. The servant of the occupier, or his guest, or lodger cannot sue; they do not
have proprietary interest in the land. The user of the highway could have a right of action if he
could prove special damage.
The person who will be liable in an action for nuisance will be the person who creates the
nuisance, or permits it to continue on his land unabated? In the latter case, it must be proved
that the defendant knew that the condition giving rise to nuisance existed, or that he ought to
have known.
It is no defense for the defendant to show that the plaintiff came to the nuisance, or that the
conditions giving rise to nuisance are even beneficial to the community, e.g. providing
employment. Twenty years continuous user will legalize a private nuisance; this gives a
prescriptive right. Statutory authority can afford a defense, depending on the Court’s
construction of the statute. Act of God also a defense.
Although damages can always be claimed, sometimes the plaintiff wants to stop the condition
which gives rise to nuisance. In the case, an injunction will be sought. The plaintiff can always
abate the nuisance. For example, the occupier of land can always nip off the branches of his
neighbor’s tree which protrude over his land.
7. DEFAMATION
Defamation can be defined as “the Publication of a statement which tends to lower a person in
the estimation of right thinking members of society generally; or which tends to make them Shum
or avoid that person’’.
It is still common practice in Kenya for pleadings in actions for defamation to refer the
allegation that the Plaintiff has been exposed to hatred, ridicule or contempt. This, in most
cases will prove to be the case, but the above mentioned definition in “Winfield’s more
comprehensive and certainly embraces the previously acceptable definition which incorporated
the phase, hatred, ridicule or contempt.
Defamation consists of libel and slander.
Definition “Libel is a defamatory statement published in some permanent form e.g. statement
contained in a book, newspaper, magazines, or even chiseled on a tombstone”. As a result of
the defamation Act, the publication of words by wireless broadcastings is treated as libel. As
“words are defined in the Act to include pictures and visual images, this clearly includes
publication by means of television and cinema.

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Definition “Slander is defamatory statement which is contained in speech or in some significant
sign or gesture.
Distinction between libel and Slander;
1. Libel is actionable per se; .i.e. without proof of damages .As a general rule, slander is
only actionable if special damage can be proved.
2. Libel can be a crime (penal Code (Cap.63), section 196. Slander is not a crime unless
the words expressed are treasonable or seditious, or likely to cause a breach of the
peace.
There are four cases in which slander is actionable without proof of damage. They are as
follows:
(a) An imputation that the plaintiff has committed a serious offence (Awiti v. Attorney-
General (Civil Appeal No.28 of 1981).
(b) An imputation that the plaintiff is suffering from a contagious disease. Veneral diseases
would be one example; or the dreaded “AIDS”.
(C)An imputation of unchaste of any woman or a girl is now actionable without the plaintiff
having to prove special damage (Defamation Act (Cap.36)
(d)An imputation of unfitness, dishonesty or incompetence in any office, profession, calling,
trade or business carried on by the plaintiff is now actionable without the plaintiff having to
prove that he had suffered special damage (Defamation Act (Cap. 36).
The essential elements of defamation are as follows:
(a)The words must be defamatory: The words can be defamatory given their ordinary or natural
meaning. For example, to call a person a rogue or a drunkard, or a felon, or a racialist is clearly
defamatory on the face of it. The judge will determine as a matter of law whether the words are
capable of having a defamatory effect. The distinction is not all that significant in Kenya
because of the absence of a jury (the jury decides most questions of fact in England)
A statement can be defamatory even though only persons with special knowledge of the
circumstances could connect it with the respondent. The general impression to be created in
the minds of right thinking persons must be the test, and not a too close analysis of the words
used (East African Standard v. Gitau, (1970) E.A. 678, where the damages were reduced on
appeal from Shs.24, 000/00 to Shs.8, 000/00)
Sometimes the words used by the defendant are capable of more meaning. In De Souza
v.George brothers Ltd., (1957) E.A.115, the respondents published in a Uganda newspaper a
notice stating “This is to inform the general public that Mr. Geoffrey De Souza is no longer in
our employment and that our firm has no concern nor will be responsible for any commitments
by him on our behalf”. The appellant alleged that the word in italics were defamatory, implying
that he was the sort of man who might improperly enter into commitments on behalf of the
respondent company. The trial judge dismissed the action. On appeal, the court of Appeal for
Eastern Africa held that the consequent on the cessation of the appellant’s connection with the
respondent company and were not capable of bearing any actionable defamatory meaning.
Sometimes the words used are not clearly defamatory, but in the light of certain facts known to
certain persons, they could have a defamatory meaning. This is known as a defamatory
innuendo. For example, to published that a married woman has given birth to a baby is not
defamatory on the face of it, even though no birth has taken place, but when it is known to
certain persons that the woman had only been married for one month, the defamatory
innuendo is that the woman has been living a life of sin. The lack of knowledge on the part of
the defendant that the statement is defamatory is immaterial, although this could give to a
possible defense as will be seen later.
(b)The defamatory words must refer to the plaintiff: If the plaintiff is named in the publication,
he is clearly identified. But, even in the absence of a name, it is still possible for the plaintiff to
be identified by virtue of a description.
(c)The words must be published to some person other than the plaintiff: The statement must be
communicated in manner which is intelligible to the recipient, e.g.in an understandable
language. A letter sent through the post to the chairman of a company which is defamatory of

66
the company secretary would be communication to a third person. A slanderous remark which
was overheard by a third person would be sufficient communication.
A husband cannot communicate a statement to his wife, or vice versa (the common law regards
husband and wife as one person).Nor would there be communication if an unauthorized person
opened a sealed envelope (Huth, (1915)3K.B.32.
The defendant is usually the author of the document in question, but each person who
publishes the libel is equally guilty. For example, in the case of a defamatory report in a
newspaper, the author of the report, the newspaper vendor, the editor of the newspaper and
the proprietors of the newspaper would all have published the libel.
Defenses to Defamation
(a)Justification
This defense is raised when the defendant pleads that the statement was true. The defendant
does not have to prove the truth of every allegation made provided that the words not proved to
be true do not materially injure the reputation of the plaintiff having regard to the truth of the
remaining charges, e.g. stating that a man has been convicted of a crime and sent to prison for
three months when in fact he was sent to prison for six months. No person can claim that his
character has been damaged by the publication of the truth
(b)Fair Comment
A person is entitled to express his opinion on matters of public interest. For the defense to
succeed, it must be proved that the expression was one of honest opinion and not an assertion
of fact, and that the comment was fair. It must also be proved that the comment was based
upon facts,. However, this defense will not fail if the truth of every allegation of fact cannot be
proved, provided the expression of opinion is fair comment having read to the truth of the facts
proved.
One of the difficulties here is to determine what is fair. The following extract from the judgment
of Diplock, J.in Silkin v.Beaverbrook Newspaper Ltd., (1958) 1W.L.R.743, is a useful guide
to the criteria involved. “People are entitled to hold and to express freely on matters of public
interest strong views, view which some of you, or indeed all of you may think are exaggerated,
obstinate or prejudiced, provided-and this is an important thing- that they are view which they
honestly hold. The basis of our public life is that the crank, the enthusiast may say what he
honestly thinks just as much as the reasonable man or woman….and would be a sad day for
freedom of speech in this country… to apply the test of whether one agrees with the comment
instead of applying the true test: was this an opinion, however ex-aggregated obstinate or
predicted, which was honestly held by the writer?”
Newspaper editorials, book and firm reviews, comments on the speeches and actions of those
who are prominent in public life are all matters of public interest which are the subject of fair
comment, on the private life of an unknown person. But, Fair comment cannot be used as a
cloak for invective: evidence of malice will destroy the defense of fair comment.
(c)Privilege
Defamatory statement can be made on what are described as privileged occasion. Such
occasion are either subject to absolute privilege or qualified privilege.
(i)Absolute Privilege
Statements made on such occasions, no matter how damaging, false or malicious are not
actionable. Such occasions, for example, are statements made in the National Assembly Senate
and in Judicial Proceedings.
The Defamation Act (Cap. 36), section 9, provides
(1)In any action for libel in respect of the publication of a parliamentary report it shall be a
defense for the defendant to reduce to the court a certificate under the hand of the Speaker of
the National Assembly that such was published by the order or under the authority of the
National Assembly, together with an affidavit verifying such certificate.
(2)A defendant intending to produce a certificate mentioned in subsection shall give to the
plaintiff at least twenty-four hours’ notice of his intention in that behalf. This section effectively
grants freedom of speech in the National Assembly.

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A similar protection is given by sections 10 and 11 of the Defamation Act (Cap.36) to any
person who publishes copies of or extracts from parliamentary reports.
Statements made in judicial proceedings by a judge, magistrate, counsel, parties and witnesses
to the proceeding, related to the matter in hand, are also absolutely privileged. This is essential
as it is of paramount public importance that persons concerned with judicial proceedings
should be able to speak freely. The protection otherwise given to judges and magistrates under
section 6 of the judicature Act (Cap8) has already been observed.
A fair and accurate report in any newspaper of judicial proceedings is absolutely privileged, but
this protection does not extend to the publication of any blasphemous, seditious or indecent
matter (defamation Act Cap .36) section 6). Communications made by one officer of state to
another officer of state in the course of official duty are also absolutely privileged.
(ii)Qualified Privileged
This includes:
1. Statements’ made in pursuance of a legal, moral or social duty and where there is a
reciprocal duty to receive them, e.g. where an employer gives a testimonial in respect of an
employee. The existence of the above –mentioned duty is important .In farmer v, Uganda Argus
Ltd., (1964) E, A.558, the Attorney General of Uganda, in exercise of statutory powers, ordered
the Director of Public Prosecution to discontinue certain criminal proceedings. Shortly after,
the Uganda Argues published an article headed: Government stops common Man trial…The
plaintiff alleged libel and defendants pleaded qualified privileged. The plea of qualified
privileged failed. In holding that the statement was defamatory, the court was not satisfied that
either the reporter of neither the Uganda Argus, nor the Defendants had any interest or duty to
publish the article complained of; nor was there a corresponding interest or duty in the public
to whom it was published to receive it. Substantial damages were awarded.
2, Fair and accurate to attend reports of a wide range of meeting, when the public have the
right to attend, are privilege. Quoting extracts from proceedings of such meetings out of their
contexts can give a false impression care must be exercised. The operative words are “fair and
accurate”.
The ambit of qualified privilege for newspaper has been extended and more clearly defined as a
result of the defamation Act (Cap.36).Newspaper can publish fair and accurate reports of
proceedings in public, for example. Any commonwealth court or legislature, the United Nations
Organization and the Organization of African Unity. Such reports are privileged without
explanation or contradiction, unless made with malice. air and accurate reports of the findings
or decisions of bodies like local authorities, the Kenya Cricket Association, Tribunal, et al are
similarly privilege under the Act, subject to explanation or contradiction (for a detailed list the
reader should refer to the schedule to the Defamation Act)
3. Where there is a common interest in the statement are. For example, there is common
interest between a Bishop of a diocese and a parishioner in the behavior of a local priest. In
such a case, a complaint can be addressed by the parishioner to the bishop. Even if it is not
true, provided it was not prompted by malice, it would be protected by qualified priviledge,
similarly, with advocates; a complaint made by a client should be addressed to the law Society
of Kenya. In the case of a magistrate, to the secretary of the judicial Service Commission. To
address the compliant outside the cloark of qualified privilege is not acceptable.
Evidence of malice can destroy the defense of qualified privileged. In Bildad Abiud Mbuthuia
v. University of Nairobi,(1978) Kenya LR 27,the plaintiff, an Administrative Assistant
employed by the defendants’ brought an action for libel arising out of a letter circulated to
other officers of the University. Whilst admitting libel, the defendants pleaded qualified
privilege. The court ruled that even if this defense was available, malice on the part of the
defendant had been established. The Subsequent appeal to the court of Appeal was dismissed
(University of Nairobi v, Bildad Abiud Mbuthia (civil Appeal No. 20 of 1979).
(d)Unintentional Defamation
This comparatively new defense to actions for defamation was introduce by the Defamation Act
(Cap.36).If the defendant claims that the defamatory words published by him were published
innocently, he may make amends. The offer of amends is basically the publication of a suitable

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correction and apology, if the offer is accepted by the plaintiff, no proceedings for libel or
slander can be taken in respect of the publication in question. If the offer is not accepted by the
plaintiff, then the defendant can plead as a defense “unintentional defamation “and that an
offer of amends was made. This new provision has mitigated the rigorous of the law of
defamation in relation to intentional defamation and has been particularly welcomed by
newspaper proprietors.
(e) Apology
In any action for libel or slander the defendant may give evidence in mitigation of damage that
he made or offered an apology to the plaintiff in respect of the words complaint of. Such an
apology is, however, no defence.But, it is a defense for the defendant to prove that a libel; in a
newspaper was published without malice and without gross negligence, that before the start of
the action, or at the earliest opportunity thereafter he published a full apology in the said
newspaper, and by the time of filling a defense, the defendant had made a payment into court
by way of amends.
(f)Limitation of action
The period of limitation in cases of libel and slander is twelve months (defamation Act (Cap.36),
Section 20) (Godwin wanjiku Wachira v. Okoth, (1977) kemay LR 24).

8. Malicious falsehood’
This tort is committed when a person makes a false malicious statement about proprietary
interests of another person and this causes damage. In any action for slander of title, slander
goods of another are modes of malicious falsehood, it is not necessary to allege or prove special
damage, if the words upon which the action is founded are calculated to cause pecuniary
damage to the plaintiff and are published in writing or other permanent form.
The statement can be oral or written but malice must be proved .It is not to praise one’s own
goods or to draw comparisons between the goods of different manufactures: sales talk is not
actionable. Example If a petrol station proprietor with petrol just outside Nairobi on the Nairobi
Mombasa road has a notice, prominently displayed, saying, Last petrol station for 200 miles:
and some 20 miles further is another petrol station, owned by X, an action for malicious
falsehood can be brought by X.
9. Passing off
This tort is committed when a person passes off his goods or business as those of another. As
Sir Charles Newbold, P.said in Haria Industrials v. p.j products Ltd., (1970) E.A 367. The
test in determining whether or not the defendant had put upon the market an article which
would be likely to deceive is whether an average customer would if he saw the article
complained of, be likely to be confused”.The tort can take several forms- like using the name of
a reputable and established business, imitating a trade name or trade mark. In all, these
cases, the public will be deceived into thinking that the goods in question are sold by the
reputable dealer. In addition, as many trade marks and names are registered under the Trade
marks Act (Cap. 506) there could be proceedings under the latter Act.
Every man has the right to use his own name, but care must be taken that his name is not
confused with that of a rival firm. In these cases, the plaintiff may not only sue for damage, but
may also ask for an injunction. The latter will prevent the defendant from carrying on business
under a misleading name and thus causing more damage to the business of the plaintiff.
It is a tort knowingly and without lawful justification to induce a person to commit a breach of
contract. If, for example, X offers Y a larger salary to leave the employment of Z, Z can sue X in
tort, It is not tort if Y lawfully terminates his contracts by giving due notice to Z. The
inducements usually take the form of money, but any form is unjustifiable where the contract
of another would suffice (G.W.K.LtdV. Dunlop Rubber Co, Ltd., (1926) 42 T.L.R.376). No tort
is committed if the defendant acts with lawful justification. The action of a Trade Union in
calling a strike would not be actionable (trade Unions Act (Cap.223, sections 23 and 24.Nor,
possibly, would the action of a parent in inducing a son or daughter to break a contract.
Remedies

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Self-help and abatement have already been noted as particular remedies in trespass and
nuisance. The purpose of the law of tort is to compensate a person for the damage which he
has suffered as the result of the wrongful act of another person, to put him in a position he
would have been in if he had not suffered any damage. Damages, as a legal remedy, can be
claimed as of right. The assessment of damages in actions for defamation are never easy;
measuring the level of expectation of life in action under the Law Reform Act (Cap26),pain and
suffering and nervous shock in action for negligence also present problems in the assessment
of damage such as these must be pleaded and proved. Judges can always refer to previous
cases for guidance, but apart from the continued fall in the value of money, the facts of two
cases are never alike and there is nothing binding in an award in a previous case. In
suleimani Muwanga v. Walji Bilmji Jiwani, (1964) E.A.171, SIR Udo Udoma, C.j.said,
“It must also however, be remembered and appreciated that decision of English courts on
quantum of damages can hardly be of assistance to the courts of this country).The standard of
life in England is altogether different from that obtaining in this country. With the growing of
Kenya case law on the quantum of damages particularly personal accident injury cases, there
is even less need to refer to England cases and the likes of “Kemp and Kemp” As
Hancox,J.A.put it in southern Engineering co. ltd., v. musingi mutia (Civil Appeal no. 46
of 1983)in cases where they are Kenyan decision on the point, in which……..the main
essential near comparison with the facts of the one before the court, and they otherwise bear a
reasonable measure of similarly to it, Kenyan decisions should be used to the exclusion of the
others, save those from a neighbors’ jurisdiction with similar conditions to Kenya. Only when
there is no local decision on the point should resort be had to English or other authorities, and
then only as helpful indicators………..Where there have been successive conversion of goods,
the rights of the owner to recover his goods are barred after the end of three years from the
date of the first conversion. Where the claimant is under a disability, i.e. infancy or insanity,
the action can be bought at any time before the end of six years from the date where the
claimant ceases to be under a disability or dies. Whichever event first occurs. There is no
provision for successive periods of disability.
Where the action is based upon the fraud of the defendant, or the right action is concealed by
the fraud of the defendant, or the action is for relief from consequences of a mistake, the
defendant, or the action does not begin to run until the plaintiff has discovered the fraud or the
mistake or could with reasonable diligence have discovered it.
Further provision is also made for the extension of the limitation period in action for personal
injuries where the facts relating to the cause of action are outside the knowledge of the plaintiff
.In such cases; the limitation period is extended to a period of one year from discovery of the
facts giving rise to the cause of action. Leave of the Court is required for the extension of the
limitation period under such circumstances .In Mweu v. Kabai, (1972) E.A.242, and the
applicant applied for leave out of time on the ground that the material facts were outside his
knowledge. Leave was refused as his ignorance of the statutory period of limitation was not a
material factor; he has had knowledge of possible legal liability.

MOTIVE AND MALICE

As a general rule, motive is not relevant in deciding whether a person is liable in tort. Motive is
the reason behind the act of the defendant. But, the motive may be colored by spite or invective
in which case one talks of malice or evil motive (malice implies wrongful intention). The general
irrelevancy of evil motive is observed in the case of Bradford Corporation v.Pickles, (1895) A.C
587 pickles was annoyed by the refusal of Bradford Corporation to purchase his land for their
water undertaking. Out of spite, he sank ashaft on his land which had the effect of discoloring
and dimishing the water of the Corporation which percolated through his land. The House of
Lords held that the action of pickles was lawful and no matter how ill his movie might be, he
had a right to act as he did.
Malice in itself is not a tort, although it will be an essential element in certain torts. For
example, malicious prosecution, cases of defamation where qualified privilege for fair comment

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is pleaded as a defense, conspiracy, malicious falsehood, and in certain circumstances,
nuisance.

GENERAL DEFENCES
For the plaintiff to succeed in an action in tort, he must prove the essential elements for the
tort in question. If he fails, then judgment will be given for the defendant .However, an action
can fail because of a defense which has been put forward. This defense could be peculiar to the
tort in question e.g. justification in libel, or it could be a general defense to tortuous liability.
These general defenses will now be considered.
1. Self-defense
A person is entitled to defend himself or members of his family and his property. The main
criterion here is one of reasonabless. In defending himself, a man may use such force as is
reasonable, necessary and the means of defense must be related to the harm which would
otherwise be suffered. A person is also entitled to take reasonable steps to protect his property,
e.g. keeping a fierce dog, broken glass on a boundary wall.
2. volenti non fit injuria
This is a defense that the plaintiff both knew of the risk he was running and willingly
consented to run the risk. Simple examples are found in the world of sport, e.g. boxing,
football, cricket, rugby. The consent to the risk can be either expressed or implied. It is implied
in the case of sporting events and would be express where, for example, it was stipulated in a
contract.
The knowledge of the risk does not necessarily amount to consent. The maxim is volenti non fit
injuria, not scienti fit injuria, knowledge may amount to contributory negligence, but far more
than knowledge would be required for volens to be present. In the case of Dann v, Hamilton,
(1939) 1 K.B.509, It was held that the maxim does not apply to the tort of negligence so as to
preclude from remedy a person who has knowingly and voluntarily accepted the risk which
may arise from the driver of a car being under the influence of drink and who has been injured
in consequence. The basis is that, through drink the driver had materially reduced his capacity
of driving safely, did not implicitly consent to, Or absolve the driver from liability for any
subsequent negligence on his part.(But, acceptance of a lift given by driver has now been held
to amount to contributory negligence) A woman was injured by a train while walking through a
tunnel, Denning, L.Judge SAID that “’When this lady walked in the tunnel, though it may be
said that she voluntarily took the risk of danger from the running of the railway in the ordinary
and accustomed way, Nevertheless she did not take the risk of negligence by the driver”. The
same point could also be taken when a person consent to an operation. There is always an
element of risk in the operation, but the patient does not consent to negligence on the part of
the surgeon.
In the case Khimji v.Tanga Mombasa Transport Co.ltd., (1962) E.A.419, The deceased was
a passenger in a bus which was swept by the swollen river. The passenger pressed the driver
to cross the river, which he was unwilling to do. After some persuasion he agreed to try .The
bus struck some obstruction and slipped in deeper water where it stuck. The driver, conductor
and passengers managed to reach the opposite bank, but the body of the deceased was found
next day some four miles downstream. In an action for negligence under the Law Reform (fatal
Accidents and Miscellaneous Provision) Act (Tanzania) Williams, J. held that “the danger was
apparent to the passengers, that they had proper warning as well and that they had adequate
opportunity of electing whether to accept the risk or not and the claim in negligence failed as
the maxim volenti not fit injuria applied”. The subsequent appeal of the case to the Court of
Appeal for Eastern Africa was dismissed.
The consent must be freely given consent given by fraud is no consent. The defense has no
application to a criminal act. There have been occasion when a boxer has died as a result of
injuries received in a boxing match; technically, there could be a prosecution for manslaughter.
What are referred to as the “rescue cases’ have sometimes raised other issues than simply
those of violent non fit injuria, the basic principle seems to be stated by Barr y,j.in Baker v.
T.E. Hopkins and sons Ltd., (1959) 1 W.L.R. 966, when he said.”Although no one owes a

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duty to anyone else to preserve his own safety, yet if, by his own carelessness’ a man puts
himself into a position of peril of a kind that invites rescue, he would in law be liable for any
injury caused to someone he ought to have foreseen would attempt to come to his aid.
In the case of Hayness v. Harwood, (1953) 1 K.B. 146, Where a van was negligently left
unattended in a street and a boy threw a stone at the horses with the result that they bolted, it
was held that a policeman, who rushed from a police station to stop the horse, could recover
damage from the owner of the van for injuries received in stopping them. The accident occurred
in Public Street and a woman and children were in grave danger from the horse.But, the law
encourages heroes, not busy bodied.
3. Inevitable Accident

An accident is either culpable or inevitable. It is culpable when it is due to negligence and

inevitable when its avoidance requires a degree of care exceeding the standard demanded by
law. This is an accident which is “not avoidable by any such precautions as a reasonable man,
doing such an act then and there, could be expected to take” As Lord Dunedin stated in the
case of Farson v. Harcourt-Rivington, (1932) 48 T.L.R. 215, people must guard against
reasonable probabilities, but they are not bound to guard against fantastic possibilities.
In the case of Stanley v. Powell, (1891) 1 Q.B .86, the defendant was a member of a
pheasant-shooting party and the plaintiff was employed to carry cartridges and such game as
was shot. Without any negligence on his part, one of the defendant’s shots passed off the
bough of a tree and stuck the plaintiff, who sought to recover damages in respect of the injury
which he suffered as a result. It was held that the defendant was entitled to judgment as he
had not been negligent and was not liable for trespass to the person as the wound was inflicted
accidentally.
Inevitable accident is no defense to an action where “one brings or accumulates on his land
anything which, if it should escape, may cause damage, he is responsible. If it does escape and
cause damage, he is responsible however careful he may have been and whatever precaution
he may have taken to prevent damage as held in the case of Rylands v. fletcher”
4. Act of God
In the words of Sir Charles Newbold, p.in the case of Ryde v.Bushell, (1967) E.A.817 “Nothing
can be said to be an act of God unless it is an occurrence due exclusively to nature or of so
extraordinary a nature that it could not reasonable have been foreseen and the result of which
occurrence could not have been avoided by any action which should reasonably have been
taken by the person who seeks to avoid liability by reason of the occurrence”.
In the case in question the defendant was unable to prove that a deluge of rain, which, swept
coffee plants, was of such an extraordinary nature as could amount to an Act of God.
The defense can apply to damage caused by floods, earthquakes, hurricanes and lighting.
The defendant must be able to prove that he had no control over the occurrence.
5. Statutory Authority
When a statute authorizes the commission of what would otherwise be a tort. Everything
depends on the construction of the statute. If the statute is construed so as to compel some
public authority to carry out a particular duty which, but for the statute, would amount to a
tort, then no action can be taken against the authority. On the other hand, if a statute gives a
public authority power to do something, then the court will construe the statute to mean that
the authority exercise the power in such a way as will not give rise to a tort. The latter power is
known as a conditional or permissive authority as opposed to an absolute authority.
6. Necessity
Where intentional damage is done so as to prevent greater damage, the defence of necessity
can be raised. An example would be pulling down a house on fire to prevent it spreading to
other property. Whether the defense of necessity would extent to inflicting injuries to the
person is debatable because of the lack of authority.The observation of Devlin,j.in the case
Esso Petroleum Ltd., v. south port Corporation,(1956) A.C 218, is worth noting. “The safety
of human being belongs to a different scale of values from the safety of property, the two are

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beyond comparison and the necessity for saving life has at all times been considered a proper
ground for inflicting such damage as may be necessary upon another’s property.”
7. Mistake
Mistake whether of law or facts, is usually no defense to an action in tort. Mistake may be of
some relevance when the court has to determine whether the defendant had acted reasonable
or not. This could arise in cases of malicious prosecution, false imprisonment and
deceat.Mistake would not be a defense in action for conversion or defamation. Example “ If I
trespass upon another man’s land, it is no defence to me that I believed it on good grounds to
be my own”

CAPACITY
The general rule is that all persons can sue and be sued in tort. All persons are subject to the
same laws administered in the same courts. However, certain persons are subject to certain
disabilities, or posses certain rights or privileges, under the law.
The Government
The Government Proceedings Act (Cap 40) makes the Government subject to liabilities in tort
as if it were a private [person of full age and capacity. The extent of this liability is set out in
section 4 (1) of the Act as follows:
(a) in respect of torts committed by its servants or agents;
(b) In respect of any breach of those duties which a person owes to his servants or agents at
common law by reason of being their employer; and
(c) In respect of any breach of the duties attaching at common law to the ownership,
occupation, possession or control of property.
For the Government to be vicariously liable under section 4 (1) (a), the servant or agent must
have been personality liable.
There is, however, certain limitation on the Government’s liability in tort
1. The Government is only liable in respect of any act, neglect or default of any officer of the
Government. The Act clearly states who is an officer,
“No proceeding shall lie against the Government….Unless that officer has been directly or
indirectly appointed by the Government and was at the material time paid in respect of his
duties as an officer of the Government wholly put of the consolidated fund or was at the
material time holding an office in respect of which the Minister for the time being responsible
for finance certifies that the holder thereof would normally be so paid”.
This can raise some interesting questions so far as servants of State Corporation are
concerned. Some of this state corporations are indirectly controlled by Government, but
whether the Government would be liable in any action would depend upon the construction of
the relevant.
Under the Married’s Property Act, 1870-1884 (English states of general application in Kenya); a
wife can sue her husband in tort for the protection and security of her property. Otherwise,
neither spouse can sue each other in tort for the common law considers such litigation is
unseemly, distressing and embittering. Nevertheless, the Westminster Parliament took a
different view in the Law Reform (Husband and wife)Act,1962.This Act permits spouses (in
Britain)to sue one another, subject to certain qualifications, as if they were not married. Both
husband and wife have the capacity to sue and be sued in tort.
Aliens or Non-Citizen
Normally an alien is under no disability and can sue and be sued. An enemy alien, however,
cannot sue, but if sued can defend the action and counterclaim.
Heads of State and Diplomats
The Constitution of Kenya, provides that no civil nor criminal proceedings can be instituted
against the president while he is in office.
The Privileges and Immunities Act (Cap.179) provides that Heads of foreign states, their
accredited representative and staff can claim immunity from the jurisdiction of the court. This
must not be misunderstood. Such persons are still subject to the law of Kenya, but they may

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claim what is described as diplomats immunity. Diplomatic immunity though does not extend
to Kenyans who are employed by diplomatic missions.
It is always open to the Ministry of Foreign Affairs to declare a diplomat persona non grata,
thereby requiring his removal from Kenya. Representives of the United Nations Organization
and its specificied agencies can also claim diplomatic immunity.
Judges and magistrates
Under the the Judicature Act (Cap.8), no judge, magistrate and no other person acting
judicially, can be sued in any civil court for any act done or ordered by him in the discharge of
his official duty. A similar protection extends to the officers of the court acting in process of any
order of the Court.
Trade Unions
Trade Union can sue in tort, but actions against it in tort are limited by statute. Under the
Trade Unions Act (Cap 233),section 23, neither Trade Unions, nor their Officers and members ,
can be sued 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. The main object of this legislation is to protect the funds of
Trade Unions.
Trade Union officials and members are not exempted from actions for torts committed in their
personal capacity. In Bolton v.Lubembe (1986) (unreported), the (then) secretary-General of the
Central Organization of Trade Unions was successfully sued in libel the Editor of the ‘’East
African Standard.’’
Corporations
A corporation can sue and be sued in the same way as any private person. There are two
qualifications to this general rule. It is not possible for a corporation to commit certain torts,
e.g. Assault and battery, defamation. Secondly, if a servant of a corporation commits a tort
which is ultra vires (outside the powers of) the corporation, then the corporation is not liable
(omission v. G .W. Railway, (1917) 1K.b 598).

JOINT TORTFEASORS
Where two or more persons assist each other in the furtherance of a common design and
commit a tort, they are known as joint tortfeasors.They may be sued jointly, or any one of them
may be sued for the whole of the damage. As between the joint fortfeasors, there is a right of
contribution, under which the court may apportion the damage between them is such a way as
is just, having regard to their respective degrees of blame (law Reform Act.26, section 3).
VICARIOUS LIABILITY
The person who commits a tort is always liable, but sometimes another person who did not
commit a tort is also liable. This is when the relationship of master and servant exists. The
basic rule is that a master is liable for any tort which the servant commits in the course of his
employment.The reason for this rule of the common law is that as the master has the benefit of
his servant ‘service, he should also accept liabilities. Before a master can be sued for a tort
committed by his servant it must be proved that the tortfeasor is a servant and that the tort
was committed when the servant was acting within the course of his employment.
A servant is a person who works under the control of and is subject to the directions of
another, e.g. domestic servants, factory workers,chauffeurs.Such a person is employed to
perform a particular task, say, a taxi-driver, is employed under a contract for services. The
latter is known as an in dependent contractor, for whose torts the employer is not, as a general
rule, liable.
Although the right to select a servant and the payment of wages are the normal elements of a
contract of service, the existence of the right of control is usually a decisive factor in whether
the relationship of master and servant exists’’- De Lestang V.P., in selle v. Associated Motor
Boat Co.LTD., (1968)E.A 123.
Once it is established that the relationship of master servant exists, it then has to be
determined whether the tortuous act was committed in the course of duty or while executing
the instructions of the master. As Sir Charles Newbold, P, Said in Muwonge v. Attorney General

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of Uganda, (1967) E.A., 17, “An act may be done in the course of a servant’s employment so as
to make his master liable even though it is done contrary to the orders of the master and even
if the servant is acting deliberately, want only, negligently, or criminally, or for his own benefit,
nevertheless if what he did is merely a manner of carrying out what he was employed to carry
out then his master is liable.
The decision in Muwongo’s case was followed in sengendo v. Attorney General, (1972) E.A.
140.In Jubilee insurance Co. Ltd V.keemu Musyoka (Civil Appeal No 43 of 1984)the driver of a
vehicle (not employed by the insured)was involved in an accident at Nyali when he should
(supposedly) have been motoring from Moi Avenue, Mombasa, to moi International Airport at
port Reitz .Although the driver appeared to be “ on a frolic of his own’’nevrtheless, the court of
Apeal,kneller J.A dissenting, dismissed the appellant’s appeal against the High Court judgment
holding the appellant liable under the insurance (Motor Vehicles Third party Risks) Act (Cap
405.This decision can be contracted with that of the Court of Appeal In England in Denton v.
United Omnibus Co. ltd ( The Times,6th,may,1986)where it was held that in the absence of a
special relationship or special circumstances, a bus company was not liable in negligence for
failing to prevent an unauthorized third party driving its bus and causing damage to the
plaintiff.

In patel v. Yafesi, (1972) E.A28, the driver of the second respondent’s station wagon was
carrying three passengers in excess of his instructed limit ,yet on appeal is was held that the
driver was acting within the scope of his employment and of his ostensible authority.
Deviations from an authorized route are apt to raise interesting problems. A modern view is
that given by Goudie J.in Nzarirehe v.Kagubaire (1968) E.A.117.
……..in assessing what is accidental to an authorized act of travel, regard must be had to the
fact that what would have legit imatley been regarded as an expedition by a carman in the
nineteenth century might well be regarded as a mere deviation by a driver of a fast lorry in
the twentieth century.
In the case in question, a lorry driver who, in the course of delivering sand for his master,
decided to go home to see his wife, was regarded as doing “Little more than interrupting an
authorized journey undertaken in relation to his master’s business.
It has already been stated that, as a general rule, an employer is not responsible for the torts of
independent contractors. The Exeption to this rule is as follows:
(a)Where the contract, if properly carried out, involves the commission of a tort by the
independent contractor.
(b)Where a high duty of care is thrust upon the employer by law.

SURVIVAL OF ACTIONS
The maxim, action personalis moritur cum persona (a personal right of action dies with the
person), which used to be of general application, was abolished by the Law Reform Act (Cap.
26. The Act does not apply to or remain apart from the other, or to claims for damages on the
grounds of adultery. In all other cases, the Act provides:
(a)Where an action exists against a person at his death, it survives against his estate, provided
that proceeding had been commenced before his death, or that proceeding are taken within six
months after his personal representatives have taken out representation;
(b)Where a right of action exists for the benefit of a person, it survives his death, subject to the
limitation period in the Limitation of Actions Acts (Cap. 22).
The following limitation to the damages recoverable in action under the Law Reform Act must
be noted:
(i)Any damages recoverable shall not include exemplary damages;
(ii) In the case of a breach of promise to marry, the damages must be limited to such damage, if
any, to the estate of that person as flows from the breach of promise to marry;
(iii)Where the death of that person has been caused by the act or omission which gives rise to
the cause of action, the damage shall be calculated without reference to any loss or gain to his
estate consequent on his death, except that a sum in respect of funeral expenses may be
included.
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The action under the law Reform Act will be undertaken by the personal representatives of the
deceased. If, for example, the action is for benefit of his estate, any damage recoverable will be
paid into his estate, the distribution of which will be governed by his will, or according to the
rules of intestacy. If the deceased is survived by a wife and children, their loss will be increased
by the fact that they loose the future earnings of the former breadwinner. These dependants
are given an independent cause of action under the fatal accident Act (Cap. 32)
The dependent of a deceased person have a right of action if the death was caused by a
wrongful act, neglect or default on the part of the defendant so that if the deceased had
remained alive he could have brought an action in tort.
The dependants who can benefit include the children and grandchildren of the diseased, the
surviving spouse, the parents and grandparents of the deceased.
The action is normally brought by the personal representatives of the deceased, on behalf of
the dependants. The action must be brought within three years of his death.
A number of factors are taken into account in assessing the damages to be awarded under the
Fatal Accident Act. The principles to be Applied are clearly set out in the judgment of O
Connor, C.J in Patel v.Hayes,(1957)E.A. 748, “The court should find the age of expectation of
working life of the deceased and consider the ages and expectation of life of his dependents,
the net earning power of the deceased (i.e. his income less tax) and the proportion of his net
income which he would have made available for his dependants from this. It should be
possible to arrive at the annual value of the dependency. The multiplier will bear a relation to
the expectation of earning life if the deceased and the expectation of life and dependency of the
widow and children. The capital sum so reached should be discounted to life of the deceased
and the expectation of life and dependency of the widow and children. The capital sum so
reached should be discounted to allow for the possibility or probability of the re-marriage of the
widow and, in certain cases, of the acceleration of the receipt by the widow of what her
husband left her, as a result of his premature death. A deduction must be made for the value
of the estate of the deceased because the dependants will get the benefit of the resulting sum
(which must depend upon a number of estimates and imponderables) will be the lump sum the
court should apportion among the various dependants.
A further head of damages has also to be taken into account in claims under the Law Reform
Act, what has became known as the “lost years” i.e. the income for the period the deceased
could reasonably have expected to earn during an estimated period of income yielding
employment Hassan v. Nathan Mwangi Kamau (Civil Appeal No. 123 of 1985)
What normally happens in this case is that personal representatives bring joint actions under
the Law Reform Act and the fatal accident Act. There is a sound reason for this- the surviving
spouse will normally be the principle beneficiary when the estate of the deceased is
distributed.
It must also be observed that, while the damages claims awarded under the law Reform Act will
go to the estate of the deceased, the damages awarded under the fatal Accidents Act will be
apportioned among the dependants.
It will be realized that Africans can pursue claims under customary law. This raises the
interesting questions as to whether an African can pursue both a claim under customary law
and a claim under the Fatal Accidents Act. The answer was given by Rudd, J.in Nyokabu v.
public Trustee (1965) E.A. 530, when he said.
“The existence of an alternative right under tribal customary law cannot affect the rights given
by the Act beyond the fact that the law forbids the injured parties from getting relief under
the customary law and also under the Act.
In such circumstances the plaintiff is put to an election, i.e. he must decide whether to pursue
his claim under statute or under customary law.

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