Introduction Law and Governance Topical Revision Kit 2hwge5

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Introduction Law and Governance Topical Revision Kit

2hwge5
Introduction to law and governance (Kibabii University)
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CPA
CS
CCP
FOUNDATION LEVEL
INTRODUCTION TO LAW AND

GOVERNANCE
REVISION KIT

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KASNEBNOTES REVISION KIT
QUESTIONS
Topic 1: Nature, Purpose and Classification of Law……………………………………………………..2

Topic 2: Sources of Law…………………………………………………………………………….……3
Topic 3: Administrative Law…………………………………………………………………………….4
Topic 4: Court Systems……………………………………………………………………….…....……6
Topic 5: Law of Persons……………………………………………………………………………..…..7
Topic 6: Law of Tort………………………………………………………………………………..……9
Topic 7: Law of Contract……………………………………………………………………………….11
Topic 8: Sale of Goods………………………………………………………………………………….13
Topic 9: Agency……………………………………………………………………………….…...……15
Topic 10: Hire Purchase…………………………………………………………………………………17
Topic 11: Insurance………………………………………………………………………………………19
Topic 12: Negotiable Instruments………………………………………………………………….…….21
Topic 13: Law of Property……………………………………………………………………….………22
SUGGESTED ANSWERS
Topic 1: Nature, Purpose and Classification of Law………………………………………………..…..24

Topic 2: Sources of Law…………………………………………………………………….……..……28
Topic 3: Administrative Law……………………………………………………………………………33
Topic 4: Court Systems…………………………………………………………………………….……40
Topic 5: Law of Persons…………………………………………………………………………………46
Topic 6: Law of Tort……………………………………………………………………………….……53
Topic 7: Law of Contract…………………………………………………………………………..……58
Topic 8: Sale of Goods………………………………………………………………………………..…62
Topic 9: Agency…………………………………………………………………………………………66
Topic 10: Hire Purchase…………………………………………………………………………………68
Topic 11: Insurance………………………………………………………………………………………71
Topic 12: Negotiable Instruments…………………………………………………………………….….77
Topic 13: Law of Property………………………………………………………………………….……80

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QUESTIONS
TOPIC 1
NATURE, PURPOSE AND CLASSIFICATION OF LAW
QUESTION 1
(a) Define the term „law‟.
(b) Outline four purpose of law in society.
QUESTION 2
(b) Describe four remedies available to a plaintiff in a civil action.
(c) With reference to international law:

i. Distinguish between "Public international law" and "Private international law".
ii. Define the term "treaty".
iii. Describe three types of treaties.
QUESTION 3
(a) Highlight four characteristics of good laws in the society.
QUESTION 4
a) Distinguish between public law and private law
QUESTION 5
a) (i) Explain the term international law
(ii) Summarize eight matters that are dealt with under international law
QUESTION 6
a) Outline three differences between criminal law and civil law
KASNEBNOTES REVISION KIT Page 2

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TOPIC 2
SOURCES OF LAW
QUESTION 1
(a) Highlight three contributions of equity to the development of the legal system.
(b) Discuss two advantages and two disadvantages of case law.
QUESTION 2
(a) Explain three sources of constitutional law.
QUESTION 3
(c) Describe three matters in which African Customary Law can be applied.
QUESTION 4
(a) Outline four ways in which constitutions might be classified.
QUESTION 5
(a) One of the most significant shortcomings of the common law that led to the development of equity
was inadequate remedies. As a result, many would be plaintiffs were left out; however, equity
increased the remedies.
With reference to the above statement discuss five equitable remedies.
QUESTION 6
(a) Argue the case for delegated legislation.
QUESTION 7
b) In relation to the sources of law, explain the following:
i) The inadequacies of common law that resulted in the development of the principles and doctrines of
equity as a complimentary source of law.
ii) Supremacy of the constitution.
QUESTION 8
b) (i) Explain two categories of judicial precedent.
(ii) Discuss three advantages of judicial precedents
QUESTION 9
c) With the use of appropriate examples, highlight four circumstances under which African customary
law may be used as a source of law

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TOPIC 3
ADMINISTRATIVE LAW
QUESTION 1
(a) Highlight the two rules of natural justice.
(b) The High Court can remove an arbitrator where he has misconducted himself. Explain three ways in
which the misconduct by an arbitrator might arise.
QUESTION 2
(c) Explain five remedies which the High Court might award a party whose fundamental rights and
freedoms have been infringed upon.
QUESTION 3
(a) Discuss five other forms of dispute resolution other than the courts of law.
QUESTION 4
(a) Explain three circumstances when the court might set aside an arbitration award.
QUESTION 5
(b) Explain three rules of natural justice.
QUESTION 6
(b) In relation to administrative law, explain four modes of judicial control over subordinate courts and
tribunals.
QUESTION 7
(b) Discuss the concept of “rule of law”
QUESTION 8
c) Highlight three remedies available in civil action
QUESTION 9
a) (i) Explain the meaning of the term arbitration.
(ii) Explain three advantages of arbitration as a form of settlement of disputes over the court process
b) Discuss the constitutional concept of separation of powers and ways in which it can be applied in
your country
QUESTION 10
a) In its supervisory jurisdiction and civil jurisdiction, the high court can grant remedies that ensure the

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enjoyment of fundamental rights by individuals.

Identify five remedies that may be granted by the high court to enforce the enjoyment of fundamental
rights and freedoms of citizens.
b) The judiciary is the arm of government that is concerned with application of law in adjudicating over
legal disputes.
Explain five functions of the judiciary

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TOPIC 4
COURT SYSTEMS
QUESTION 1
(b) In relation to the judicial system in your country, explain the legal provisions governing the following:
(i) Establishment of the High court.
(ii) Composition of the High court.
(iii) Jurisdiction of the High court.
QUESTION 2
(b) Explain five powers of the Business Premises Rent Tribunal in your country.
QUESTION 3
(a) Describe four rules used by courts in interpretation of statutes.
QUESTION 4
(c) A party making an application to the High Court to set aside an arbitral award must furnish proof of
certain matters.
With reference to the above statement, describe the proof that the party must furnish.
QUESTION 5
(b) Describe the various types of jurisdiction of the High court in your country.
QUESTION 6
(c) Discuss two advantages and two disadvantages of “stare decisis”.
QUESTION 7
(b) Explain three duties of the Attorney-General in your country.
QUESTION 8
(a) Explain four reasons why a judge in the High Court would issue the writ of certiorari.
QUESTION 9
(c) Highlight the circumstances under which a court might set aside an award
QUESTION 10
a) Explain the jurisdiction of the land disputes tribunal
c) Explain the conditions necessary for the remedy of "mandamus" to apply
QUESTION 11
b) Explain three rules that the court may apply in interpretation of a statute

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TOPIC 5
LAW OF PERSONS
QUESTION 1
(a) With reference to unincorporated associations in the law of persons:-
(i) Explain the salient features of a limited partnership.
(ii) Outline the duties of a general partner in a limited partnership.
QUESTION 2
(a) Discuss the circumstances under which the court might order the dissolution of a partnership.
(b) With specific reference to trade unions:
i) Define a trade union.
ii) Distinguish between "strike" and "trade dispute".
iii) Highlight four rights of a trade union member.
QUESTION 3
(a) Explain three types of domicile.
(b) Identify four advantages a company has over a partnership as a form of business organisation.
QUESTION 4
(a) Discuss three disadvantages of a limited partner.
QUESTION 5
(c) Highlight four differences between the "Memorandum of association" and "Articles of Association".
QUESTION 6
(c) Peter Matu, who is 80 years old, is a partner in a manufacturing firm. He intends to transfer his shares
to his daughter Mary Kinga but he does not know the rights of an assignee in a partnership. Advise
Peter Matu on the rights and obligations that Mary Kinga would accrue as an assignee.
QUESTION 7
(b) Winy Kay and Evans Jay have been long time friends. They have decided to form a partnership but do
not want to be governed by a partnership agreement.
Explain to Winy Kay and Evans Jay the rights and duties of partners in a partnership with no partnership
agreement.
QUESTION 8
c) In relation to law governing partnerships, explain the legal position in each of the following cases
i) The liability of the firm in torts committed by one partner

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ii) The liability of an individual partner for the liability of the firm
QUESTION 9
a) (i) With reference to the law governing legal personality, distinguish between a "natural person" and a
"legal person"
(ii) Highlight two ways in which a legal person can be created
b) Describe the implied authority of a partner in every partnership business.
O taste and see that the

Lord is good; blessed is the
man who trusts in Him.
Psalm 34.

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TOPIC 6
LAW OF TORT
QUESTION 1
(a) The tort of trespass might be committed on persons, land or goods. With reference to the above
statement, describe the following:
(i) Three types of trespass on persons.
(ii) Two types of trespass on goods.
QUESTION 2
(b) Discuss three types of trespasses.
(c) Explain two defences for each of the trespasses discussed in (b) above
QUESTION 3
c) Discuss four circumstances under which the government might not be held liable in tort.
QUESTION 4
(a) Discuss five exceptions to the rule in Ryland‟s v. Fletcher.
QUESTION 5
(b) Distinguish between "libel" and "slander".
QUESTION 6
(a) Distinguish between "contract" and "tort"
(c) Outline two classifications of damages.
QUESTION 7
(a) In relation to the law of tort explain the following:
i) Damnum sine injuria.
ii) Negligence.
QUESTION 8
(a) Ambrose Mpaka employed Bernard Mpole, an independent contractor to undertake some excavation
work on his land. In the process, a greenhouse belonging to Eli Jirani, a neighbour was damaged by
the debris from the excavations. Eli Jirani's employees took advantage of the situation and looted all
the plants in the greenhouse. Eli Jirani is aggrieved and seeks your legal advice as to whether he could
successfully sue Ambrose Mpaka.
Advise Eli Jirani on the legal principles applicable in the above case.
(b) Explain the defences available to an occupier, who is sued by a person injured within the occupier's
premises.
QUESTION 9
b) i) In relation to the law of torts, explain the rule "Res ipsa Loquitur"
ii) Roy Keen recently bought the car of his dreams, a BMW X 6 models. In a bid to show his friends

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how fast the car was, Roy Keen dashed off at a speed of one hundred kilometers per hour within the
estate. The car lost control and crashed into a school van carrying pupils killing three of them on the
spot. Roy Keen also perished in the accident The parents of the three deceased pupils intend to sue the
administrators of Roy Keen's estate.
Required:
Identify the legal principles applicable in the above case and advise the parents of the deceased pupils.
QUESTION 10
a) Janet Rama, a business lady sent a telephone message to Mary Kale a fellow business lady, accusing
her of "stealing" her clients. The message contained abusive words to the effect that Mary Kale was
"a witch" who uses "herbs" and witchcraft to lure customers to her saloon and boutique. In addition
to sending the message to Mary Kale, Janet Rama sent the message to several customers of Mary
Kale. As a result, Mary Kale has lost many customers and her business is threatened with closure.
All the contents of the message were false. Mary Kale has come to you for legal advice.
Required;
i) Explain to Mary Kale the term "defamation"
ii) Advise Mary Kale on her legal rights, if any.
b) The general rule is that motive is irrelevant in the law of tort for the purpose of liability explain the
exception to this rule
QUESTION 11
a) Msafiri transporters employed Dickson Makanyanga as a driver to transport passengers from
Nairobi to Busia while on the way; Dickson Makanyanga drove the bus at high speed while
negotiating a sharp corner. As a result, he lost control of the bus and caused an accident .A total of
twenty passengers were injured while three passengers died on the spot. Judy aliaka, who sustained
a head injury and was hospitalized for a long time, has sued for compensation but Msafiri
transporters have denied liability. In reference to vicarious liability in the law of tort, discuss five
legal principles that Judy Naliaka may rely on in her suit against Msafiri transporters.
b) In relation to the law of tort, discuss the following concepts:
i) Defence of volenti non-fit injuria.
ii) Three defences available for the tort of nuisance

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TOPIC 7
LAW OF CONTRACT
QUESTION 1
(b) Explain five exemption clauses which if included in a contract might be considered null and void.
QUESTION 2
(b) Under the law of contract, certain types of contracts must be evidenced in writing for them to be valid.
With reference to the above statement, identify ten types of contracts which must be evidenced in writing
in order to be valid.
QUESTION 3
(a) David Kama wrote to Lotha Muwe offering to sell his home. In the letter, David Kama advised
Lotha Muwe to inform his (Lotha Muwe's) wife, Nicole Nyambura, about his acceptance or rejection
of the offer.
Lotha Muwe wrote to David Kama accepting the offer without informing Nicole Nyambura.
Explain whether an agreement exists between David Kama and Lotha Muwe.
(b) Describe three conditions implied in a contract for sale by sample.

(c) Summarise three rules governing a sale by auction.
QUESTION 4
(c) A person who is a party to a contract is said to be privy to the contract and can benefit from it or have
obligations imposed on him by it. He is also the only person who can sue or be sued under the
contract.
Required:
Discuss the exceptions to this doctrine.
QUESTION 5
(b) In relation to the law of contract:
i) Explain three essential features of an offer.
ii) Outline six elements of a valid contract.
QUESTION 6
(a) Explain four consequences of illegal contracts.
QUESTION 7
(c) Lena Zola contracted Mariene Kamonya, a musician, to perform during a talent music award. Two
days before the much awaited event, Mariene Kamonya contracted a severe bout of malaria and was
hospitalised. She was therefore unable to perform at the award.
Lena Zola is aggrieved as she had already paid a deposit to Mariene Kamonya.

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Advise Lena Zola.
QUESTION 8
(a) The general rule that "for a contract to be discharged by performance, the performance must be
precise and exact" was modified by exceptions to mitigate its harshness.
Discuss five exceptions to this general rule.
QUESTION 9
(c) In relation to the law of contracts, describe three mistakes that render a contract void.
QUESTION 10
(a) An offer is a promise which when accepted constitutes an agreement. It may be terminated by
revocation, counter- offer or by lapsing.
Discuss four ways in which an offer could lapse.
(b) The general rule is that silence cannot constitute a misrepresentation. A party to a contract is therefore
under no duty to disclose all material facts.
Explain the exceptions to this rule.
(c) Peter Manu, a manufacturer, entered into a contract to make 10,000 candles for Paul Mwadali, a
wholesaler. Paul Mwadali issued an order to Peter Manu for the supply of the candles. Subsequently,
there was a major power blackout which lasted for three days thereby affecting the operations at Peter
Manu's processing plant.
In addition, Peter Manu's machine broke down due to the power blackout after he had made 8,000
candles. Peter Manu has submitted a claim to Paul Mwadali for payment for the 8,000 candles. Paul
Mwadali has refused to pay Peter Manu on the ground that the contract is not fully executed.
Explain the legal principles applicable in the case and advise Peter Manu.

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TOPIC 8
SALE OF GOODS
QUESTION 1
(a) The literal translation of the rule „nemodat quad non habet‟ is that no one can give what he has not.
However, there are exceptions to this rule.
Discuss the exceptions to the nemodat rule.
QUESTION 2
(a) In relation to a contract of sale of goods:
i) Outline four categories of unascertained goods.
ii) Highlight the rules that govern delivery of goods.
QUESTION 3
(a) Explain three circumstances when an unpaid seller could exercise the right of resale.
QUESTION 4
(c) On 31 December 2012, Smith Lemaiyan, appointed Aggrey Mchuzi as his money-lending agent. In
January 2013, Aggrey Mchuzi without Smith Lemaiyan's authority advanced Sh.100,000 to Jimmy
Cheney without disclosing to Jimmy Cheney that lie was Smith Lemaiyan's agent. Jimmy Cheney
has since refused to refund the Sh.1 00,000 advanced to him.
Analyse the legal principles applicable in the above case and advise Smith Lernaiyan, Aggrey Mchuzi and
Jimmy Cheney on their liability.
QUESTION 5
(a) Summarise four rules governing the transfer of property in goods.
QUESTION 6
(b) Describe four duties of a seller under a cost, insurance and freight (CIF) contract.
QUESTION 7
(a) Discuss the doctrine of "caveat emptor", as used in the context of the law governing sale of goods.
QUESTION 8
(b) Explain two ways through which the seller's right of "stoppage in transitu" could be exercised.
QUESTION 9
(a) Explain the rules governing the passing of risk in a sale of goods contract
(b) Highlight the circumstances under which an agent would be allowed to delegate his authority.
(c) An agent will usually act within his authority, but if the relationship with his principal is well
established he may occasionally act outside the authority if he feels the principal will subsequently
ratify the agent‟s action.

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Discuss the effects of subsequent
QUESTION 10
a) In relation to the Sale of Goods Act:
i) Discuss the maxim "nemo dat quod non habet"
ii) Highlight two important principles of the above maxim
Outline the exceptions to the maxim referred to in (a) (i) above
No created thing can act

randomly. Everything is
controlled by God’s secret
purpose, and nothing can happen
except by his Knowledge and
will. Every single event is ordered
by God and every event comes
from His intended will. Nothing
happens by chance.
John calvin.

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TOPIC 9
AGENCY
QUESTION 1
(a) Matende Juma was employed by Marion Kaveza to sell her piece of land situated in Nazarede Town at
10% commission.
Norah Muhonja, a prospective buyer promised to pay Matende Juma Sh.50,000 in addition to the
purchase price of Sh.500,000 if he agreed to reserve the land for her as she raised the purchase price.
Matende Juma reserved the land for Norah Muhonja ignoring Timothy Kyalo, another buyer who offered
to buy the same land for Sh.600,000 all of which he wanted paid directly to Marion Kaveza, the land
owner.
After three months, Norah Muhonja paid Sh.500,000 for the land and gave Matende Juma the Sh.50,000
she had promised.
Marion Kaveza eventually transferred the land to Norah Muhonja but later discovered that Matende Juma
had received Sh.50.000 from Norah Muhonja and that Timothy Kyalo had offered to pay a higher price
for the land.
Analyse the legal principles applicable in the above case and advise Marion Kaveza who intends to sue
Matende Juma.
QUESTION 2
(a) Jasmin Mrongo, an accounts clerk at Cautious Company Ltd., prepared a cheque for Peter Kraft's
signature. Peter Kraft was not a duly authorised signatory of Cautious Company Ltd. The amount on
the cheque appeared in figures as Sh.5,000 but was not written in words. Peter Kraft signed the cheque
and gave it to Jasmin Mrongo who secretly altered the amount to read Sh.95,000 and also wrote
"ninety five thousand shillings" in words. Jasmin Mrongo then encashed the cheque at Mzalendo
Bank, the company's bank. Jasmin Mrongo gave Peter Kraft Sh.5,000 and retained Sh.90,000 which
she used to purchase a plot. Cautious Company Ltd. has discovered the above facts and intends to sue
Mzalendo Bank for negligence.
Analyse the legal principles applicable in the above case and advise Cautious Company Ltd.
(b) An agent should not make secret profit out of his agency except his remuneration.
Describe five consequences of breach of this duty.
QUESTION 3
(b) Describe three exceptions to implied agency.
QUESTION 4
(b) Describe five instances under which an agent might be held personally liable to third parties.

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QUESTION 5
(b) Joshua Kerabu requested Grace Kwambo to sell two laptops on his behalf at a price of not less than
Sh.40,000 each. Joshua Kerabu promised to pay Grace Kwambo an agreed commission of 5% on
every sale. Grace Kwambo bought one of the laptops and gave Joshua Kerabu Sh.40,000 but did not
inform him that she was the buyer.
Grace Kwambo sold another laptop to Clemencia Musyi at a price of Sh.50,000 and gave Joshua
Kerabu only Sh.40,000.
Joshua Kerabu has come to learn about Grace Kwambo's dealings.
Explain the legal principles applicable in the above case and advise Joshua Kerabu on his legal
rights.
QUESTION 6
b) Explain four ways in which an agency relationship would be terminated by action of the parties
When in doubt
tell the truth.
Mark Twain

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TOPIC 10
HIRE PURCHASE
QUESTION 1
(a) Outline five provisions which govern termination of a hire purchase agreement by the hirer.
QUESTION 2
(a) Where goods have been let under a hire-purchase agreement and two-thirds of the hire purchase price
has been paid the owner shall not enforce any right to recover possession of the goods from the hirer
otherwise than by suit.
Explain three consequences of contravention of the above provision by the owner.
QUESTION 3
(a) Describe five duties of the owner of goods in a hire purchase agreement.
QUESTION 4
(b) Ben Moses purchased a motor vehicle from Arizona Motors Ltd. under a hire purchase agreement at a
cost of Sh.600,000 payable in twelve installments. After paying six installments, he gave the car to
his wife Isaby Ogeto as a gift. The following month, their relationship became strained and Ben
Moses moved out of the matrimonial home taking the car with him.
Isaby Ogeto feels aggrieved and has come to you with mandatory instructions to file a case against
Ben Moses for recovery of the car.
Identify the legal principles applicable in the above case and advise Isaby Ogeto.
QUESTION 5
(c) Explain the information that must be contained in the written memorandum of a hire purchase
agreement for the agreement to be enforceable.
QUESTION 6
(a) Explain the meaning of the term "hire purchase agreement".
(b) Outline the legal effects of non-registration of a hire purchase agreement.
QUESTION 7
a) The hire purchase act implies some terms in every hire purchase agreement. One of these terms is
merchantability. This is a condition that the goods are of merchantable quality unless they are second
hand. There are however some instances when this condition may be dispensed with.
Outline two of the instances when merchantability may be dispensed with.

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QUESTION 8
a) (i) Explain the term hire "purchase"
(ii) Nura Kara entered into a hire purchase contract with Ujuzi traders regarding sewing
machine .The hire purchase price of the sewing machine was Sh.10, 000.Kara has paid a total of
Sh.8000 but is facing financial difficulties and is in arrears for two months. The hire purchase
company has repossessed the machine Nuru Kara is aggrieved.
Explain the legal principle applicable in this case and advice Nuru Kara.

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TOPIC 11
INSURANCE
QUESTION 1
(b) With specific reference to the law relating to marine insurance:
(i) Explain the meaning of the term „maritime perils‟.
(ii) Highlight any four matters that a marine insurance policy must specify.
QUESTION 2
(a) Beatie Osolika took a fidelity medical policy with Hope Insurance Company Ltd. While completing
the proposal form, Beatie Osolika answered in the affirmative a question by the insurance company
asking "are you pregnant?” Four months later, Beatie Osolika was admitted to the insurance
company's designated hospital where it was established that Beatie Osolika was a man and he had
never been pregnant. Hope Insurance Company Ltd. has since refused to settle Beatie Osolika's
medical bill, and Beatie Osolika intends to sue Hope Insurance Company Ltd. for payment.
Analyse the legal principles applicable in the above case and advise Beatie Osolika.
QUESTION 3
(a) In relation to marine insurance:
i) Define the term "marine insurance".
ii) Outline any four types of marine insurance policies.
QUESTION 4
(c) (i) Define the term "burglary insurance".
(ii) Jane Kioi wants to engage in the business of exporting of petrol. She has purchased a ship in order
to advance her business. Advise Jane Kioi on the type of insurance under which she could insure the
ship and three classes of policies available under that type of insurance.
QUESTION 5
(a) Distinguish between a "contract of insurance" and a "wagering contract".
QUESTION 6
(a) Distinguish between the following set of terms:
i) "Reinsurance and Double insurance".
ii) "Insurance and Assurance".
(b) Explain four categories of insurance covers.
QUESTION 7
(c) Jean Jipapa insured his ship against any losses while lying at Mombasa port for a sum of shillings 10
million with BADCE Insurance Company Limited. He further insured the same ship with Deep See

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Insurance Company Limited for a similar amount.

Subsequently, the port caught fire and the ship was badly damaged. The estimated cost of repair of the
ship is shillings 5 million.
Jean Jipapa has lodged a claim for compensation from both insurance companies.
Explain the legal principles in the case and advise Jean Jipapa.
QUESTION 8
a) Where the assured is so situated that the happening of the event of which the insurance money is to
become payable would, as approximate cause, involve the assured in the loss or diminution of any
right recognized by law, or in any legal liability, there is an insurable interest in the happening of that
event to the extent of the possible loss or liability.
Describe six classes of persons who are deemed to have an insurable interest in a subject matter of
insurance.
QUESTION 9
b) Identify and briefly explain five principles of insurance.

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TOPIC 12
NEGOTIABLE INSTRUMENTS
QUESTION 1
(c) Describe five essentials of a valid bill of exchange.
QUESTION 2
(b) Outline four requirements of a promissory note.
(c) Highlight six ways in which a bill of exchange might be discharged.
QUESTION 3
(b) Define the following types of bills of exchange:
i) Order bills.
ii) Bearer bills.
QUESTION 4
(b) In relation to negotiable instruments:
i) Define the term "qualified acceptance".
ii) Highlight four forms of qualified acceptance.
QUESTION 5
b) Explain the term 'promissory note'.
c) Explain the characteristics of negotiable instruments.
QUESTION 6
b) Briefly explain three uses of a bill of exchange
QUESTION 7
b) Discuss six rules governing presentment for payment of a bill of exchange.

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TOPIC 13
LAW OF PROPERTY
QUESTION 1
(c) The Copyright Law is meant to protect literary works.
Outline six literary works that could be protected by the Copyright Law in your country.
QUESTION 2
(c) Outline four advantages of registering an "invention" in the context of intellectual property.
QUESTION 3
(b) In relation to the law of property, distinguish between the following terms:
i) Ownership and possession.
ii) Fee simple and leasehold.
QUESTION 4
(b) Outline two ways in which a copyright might be infringed.
QUESTION 5
(b) Explain three interests in land created by the law of property.
QUESTION 6
(a) With reference to property law:
(i) Explain the term "Servitudes".
(ii) Discuss the essential characteristics of an easement.
QUESTION 7
a) In relation to the Law of property, distinguish between tenure and estate
b) Outline three objectives of registering patents
QUESTION 8
a) In relation to the law of property, describe five characteristics of a copyright.
b) Discuss five legal remedies of a mortgagee against a defaulting mortgagor
QUESTION 9
a) Anunda and Murage intend to enter into a lease agreement regarding business premises.
b) Explain to Anunda and Murage the contents of a standard lease agreement.

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SOLUTIONS
TOPIC 1
NATURE, PURPOSE AND CLASSIFICATION OF LAW
QUESTION 1
(a) Law is defined as follows:-
- Law is a set or body of rules made by human beings to govern human conduct.
- Law also denotes the processes and structures that are involved in the administration of justice in
a particular legal system.
(b) Purposes of law:-
- Facilitates administration of justice and promote cohesion in the society.
- An Instrument used by human beings to achieve justice through the courts of law and other
tribunals.
- Assists in the maintenance of peace and order by promoting peaceful co-existence and prevents
anarchy in the society.
- Promotes good governance in the society as it controls the actions of public officers and
institutions.
- Provides legal remedies, promotes protection of rights and duties.
- Standard setting
- Giving effect to private choices
QUESTION 2
(b) Describe four remedies available to a plaintiff in a civil action.
i) Committal to civil jail
This is a short jail term where the debtor has failed or refused to honour the decree.
The objective is to compel such person to retain his position and respect the court order.
ii) Specific performance

This is a court order which compels the defendant to perform his part of the contract as agreed. It compels
the defendant to fulfil his promise in accordance with the contract without an option to pay damages. It is
an equitable remedy which manifests the maxim that equity acts in personam. The remedy may be availed
where;
- Monetary compensation is inadequate
- The subject matter is unique or has peculiar characteristics, such as land
- A contract is breached in anticipation.
iii) Injunctions
This is a court order which either restrains a party from doing or continuing to do a particular thing or
compels it to undo what it has wrongly done. An injunction may be:-
i) Prohibitory
ii) Mandatory.

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A prohibitory injunction restrains a party from doing or continuing to do a particular thing while a
mandatory injunction on the other hand compels a party to put right what it has wrongly done. It is
restorative in nature.
Injunctions are either
i) Interim or temporal
ii) Perpetual or permanent.
A temporary injunction is an order issued by the court that is aimed at restraining an individual from
continuing with the act pending the final determination by the court. For instance the court may restrain a
media house from publishing a story until a case filed relating to the story is heard and determined.
A permanent Injunction is order issued by the court that permanently restrains a person from
committing a certain wrongful act. For instance a person may be permanently restrained from trespassing
into someone else land.
An injunction is an equitable remedy which may be granted in the following circumstances:-
- If money cannot adequately compensate the plaintiff
- If it is necessary to maintain the status quo i.e. maintaining things as they are.
For an injunction to be granted the applicant must establish that:
- He has a prima facie case with overwhelming chances of success
- If the remedy is not granted he will suffer irreparable injury.
iv. Rescission
The essence of this remedy is to restore the parties to the position they were before the contract. It is an
equitable remedy whose award is discretional. The remedy may be availed whenever a contract is vitiated
by misrepresentation.
(c) With reference to international law:

i) Distinguish between "Public international law" and "Private international law".
Public international law concerns the structure and conduct of sovereign states; analogous entities; and
intergovernmental organizations. To a lesser degree, international law also may affect multinational
corporations and individuals, an impact increasingly evolving beyond domestic legal interpretation and
enforcement. Public international law has increased in use and importance vastly over the twentieth
century, due to the increase in global trade, environmental deterioration on a worldwide scale, awareness
of human rights violations rapid and vast increases in international transportation and a boom in global
communications.
Public international law is usually distinguished from "private international law", which concerns the
resolution of conflict of laws.
Private International Law is the legal framework composed of conventions, protocols, model laws,
legal guides, uniform documents, case law, practice and custom, as well as other documents and
instruments, which regulate relationships between individuals in an international context.
ii) Define the term "treaty".

A treaty is an agreement in written form between nation-states (or international agencies, such as the
United Nations, that have been given treaty-making capacity by the states that created them) that is
intended to establish a relationship governed by International Law
iii) Describe three types of treaties.

Multilateral treaties-agreement among more than two states
Bilateral treaties-agreement between two states
Universal- agreement among very many states, if it binds almost all states

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QUESTION 3
(a) Characteristics of good laws
 Laws should be prospective.
 Laws should be open and clear
 Laws should be compatible with rules of natural justice
 Laws should be relatively stable.
 Independence of the judiciary must be guaranteed.
 Courts should be easily accessible.
 The discretion of the crime preventing agencies should not be allowed to interfere with the law.
QUESTION 4
a)Distinguish between public law and private law
- Public law consists of those fields or branches of law in which the state has a direct interest as the
sovereign, for example; Constitutional law, Criminal law, Administrative law.
It is concerned with the constitution and functions of the various organs of government, their
relations with each other and the citizenry. It asserts state sovereignty. The state is directly interested
as a party in public law issues because the modern state is a welfare state hence it endeavors to
protect or safeguard public welfare.
- Private law: consists of those branches or fields of law in which the state has no direct interest. It is
concerned with the legal relations between persons in ordinary transactions.
It deals with the rights and details of parties in ordinary transactions example law of contract, law of
property, law of succession, law of marriage, law of trust. Private law is concerned with day to day
transactions of legal relationships between persons. It defines the rights and duties of parties.
QUESTION 5
(a)
(i) International law:
This is a body of rules which regulates the relation between states or countries and other international
persons for example the United Nations. International law is based on international agreements or
conventions or treaties and customary practices of states.
(ii) Matters that are dealt with under international law

- The formation and recognition of states.
- Acquisition of territory.
- War between states.
- The law of the sea and of space.
- Treaties between states.
- Treatment of aliens.
- Human rights of citizens and visitors.
- International crimes.
- International judicial settlement of disputes.

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QUESTION 6
a) Distinguish between criminal law and civil law
Criminal law Civil law
i) This is the law that deals with wrongs i) This is a branch of law that regulates
committed against the state and is the relationship of individuals amongst
punishable by the state themselves
ii) The state is directly interested in such ii) The state has no direct interest in such
disputes as crime is a public wrong conflicts and the aggrieved will file his
committed by an individual against the case in person or through his lawyer of
state. The state prosecutes such offences choice.
on behalf of the aggrieved.
iii) Parties are known as prosecution on one iii) Parties are known as plaintiff on one
side verses defense on the other side. side verses defendant on the other side.
iv) Proof of criminal liability shall always be iv) Proof of civil liability shall be on a
beyond reasonable doubt. balance of probability.
v) Parties cannot compromise and withdraw v) Parties may compromise and withdraw
the case from court hence it must move to the claim from court before its final
final legal conclusion. legal conclusion.
vi) Aim of punishment in criminal law is vi) Aim of punishment in civil claim is
retribution and deterrence hence restitution and compensation hence the
punishment is severe and includes; death punishment is not as severe as that of
penalty, imprisonment, fines, community criminal law and includes: damages,
service and probation. injunction, specific performance,
rescission, and appointment of receiver,
attachment and sale of property, civil
jail.
Let not your heart be

troubled; you believe in
God, believe also in Me.
Christ.

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TOPIC 2
SOURCES OF LAW
QUESTION 1
(a) Contributions of equity:
 It granted injunctions and would order specific performance where common law could
award only damages.
 It recognised trusts and a beneficiary could compel a trustee to administer the trust property in
accordance with the terms of the trust.
 It recognised equitable doctrine of part-performance and mortgagor's right of redemption of
mortgaged property.
(b) Advantages of case law:

 Certainty - The maxim of stare decisis has contributed certainty and consistency in the development
of the rules of law.
 Possibility of growth - Case law grows out of practical problems and thus keeps pace with the
changing needs of the society.
 Rich in detail - Each principle of law or equity is supported by elaborate judgements of distinguished
judges. These are tremendous value to judges, lawyers and students of law.
Disadvantages of case law are:

 Rigidity: Since the decisions of the superior courts bind inferior ones, it apparently destroys original
thinking of a judge of an inferior court as he is restricted from using his own reasons.
 Over subtlety: The concept of binding precedent has led judges sometimes to create artificial
distinction in order to avoid following an earlier decision.
 Bulk and complexity: Much of the case law is contained in voluminous law reports dating back to
the middle ages. These reports have to be constantly referred to by those in the administration of
justice.
QUESTION 2
(a) Explain three sources of constitutional law.
Constitutional law is the body of law which defines the relationship of different entities within a state,
namely, the executive, the legislature, and the judiciary
- Customs
- Legislation
- International law
- Case law
QUESTION 3
(c) Matters in which African Customary Law can be applied
 Land held under customary law.
 Marriage, divorce, maintenance or dowry.
 Seduction or pregnancy of an unmarried woman or girl.
 Enticement f or adultery with a married woman.

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 Matters affecting status of women, widows and children

 Succession: interstate testate
QUESTION 4
a) Constitutions might be classified as:
 Written and unwritten.
 Monarchical and Republican
 Presidential and Parliamentary
 Rigid and Flexible.
QUESTION 5
a) The following are equitable remedies:
Specific performance
A party who has acted in breach of a contract may be ordered by the court to specifically perform that
which he contracted to do.
Rescission
This is an equitable remedy available to an innocent party whose contract contains a vitiating factor.
Injunction
This is an order or decree by which a party to an action is required to do, refrain from doing particular
thing.
Rectification
This is when an instrument under seal did not reflect the true intention of parties through a mistake in
transcribing; the mistake can be rectified. Only documents not contracts can be rectified.
Tracing
Steps taken by beneficiaries to follow assets which have come into the hands of others. In equity even
where a fund is mixed a charge can be imposed on the mixed fund to the full extent of the claimant's
contribution.
QUESTION 6
(a) Case for delegated legislation
Compensation of lost parliamentary time:

Since members of parliament are generally busy, law making time not made use of by parliament is made
use of by the delegates when they make law.
Speed:
If law is urgently required, the same may be made by a Governmental Minister or Professional body
delegates are responsive to urgent needs.
Flexibility:
It is relatively easy to make and unmake delegated legislation. Delegates are not generally subjects are
not generally subjected to rigid and binding procedures.
Technicality of subject matter:

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By delegating legislative power, rules and regulations are made by experts in the particular field.
Delegates are free to consult experts on various issues.
QUESTION 7
b) In relation to the sources of law, explain:
i. The inadequacies of common law that resulted in the development of the principles and
doctrines of equity as a complimentary source of law.
Equity was developed as a result of the defects of the common law. It attempts to reduce the
harshness/inadequacies of common law. The following are some of those defects:
The Writ System

A person intending to commence an action at common law had to obtain a 'writ' from the government
department that was authorized to issue writs. A writ was a an ordered document in the King's name and
under the Seal of Crown commanding the person to whom it was addressed to appear in a specified court
to answer the claim made against him by the person at whose request the writ had been issued. However,
there were some injuries for which no writs were available at common law owing to the fact that, at that
particular time of the common law's growth, writs could only be issued in a limited number of cases.
Where the wrongs were continuing in nature e.g. defamation, nuisance and trespass, all that the court
could grant was financial compensation known as "damage". This was inadequate. The best remedy
would be an injunction order in addition to damages. Unfortunately, injunctions were unknown at
common law hence aggrieved parties lack relevant remedy.
Procedural Technicalities
Common law was pegged on observance of unnecessary procedures which were too technical. Failure to
observe a procedure would render a claimant to lose his claim. The procedure in the common law courts
was highly technical and many good causes of action were lost due to procedural technicalities. For
example, if a sued B because of the trespass of B's mare and in his writ A described the mare as a stallion,
the action would be automatically dismissed. This led to the urgent craving for a new system of procedure
that would dispense justice without undue regard to technicalities.
Delays
The common law system was dilatory (i.e. delaying) certain standard defences known as "essoins" caused
considerable delay before a case could be heard. For example, the hearing of a case could be
automatically postponed for a year and a day if the defendant pleaded sickness as a defence even though
the court had not verified the truth of the defence. The Lord Chancellor generally disallowed these
defences and adopted the maxim "delay defeats equity"
Inadequate remedies
The only remedy available at common law for a civil wrong was financial compensation called damages.
This might not be adequate compensation in such cases as breach of contract to sell a piece of land.
However, a common law court could not order the defendant to convey the land to the plaintiff. The Lord
Chancellor intervened and developed the remedy of "specific performance" for such cases. The
Chancellor, in the King's name would order the defendant to convey the land
to the plaintiff
Non-recognition of trusts
The common law did not recognize "trusts". For example if A conveyed property to B "on trust" for C the
common law courts could not compel B to use the income from the property for the benefit of C. The

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Lord Chancellor intervened in such cases and the overall effect of the intervention was the development
of the body of principles and rules which constitute the basis of the current Law of Trusts. In particular,
the Court of Chancery would compel B to use the income from the "trust property" for the benefit of C.
At common law, "trustees" continued to embezzle and misappropriate trust property of beneficiaries who
lacked legal protection.
Injustice and corruption

The common law system was controlled by the rich administrators and property owners to the extent that
the poor had little if not any chance of winning court cases.
The poor did therefore petition the King for fair redress of their grievances and hence the development of
equity.
It should be noted that equity is "a gloss upon the common law". It was developed to supplement the
common law but not to supplant it. It does this by, as it were, filling in the gaps left by the common law
and, where appropriate, providing alternative remedies to litigants for whom the remedies available at
common law are inadequate.
ii. Supremacy of the constitution

- Supremacy of the Constitution is a constitutional concept which confirms that the constitution is
the most authoritative legal instrument in the land.
- The Constitution is the supreme source of law of the land. All other sources of law derive their
supremacy from the constitution and are therefore required to be consistent with all provisions of
the Constitution.
- Any source of law that is inconsistent with the Constitution is null and void to the extent of its
inconsistency.
- Article 2 of the Constitution dictates that the Constitution is the supreme law of the Republic and
binds all persons and all State organs at both levels of government.
- No person may claim or exercise State authority except as authorized under the Constitution.
- The Constitution is also supreme since it outlines the governing structure of a country and defines
the various organs of the government.
- It gives the functions of the various arms of the government and clearly indicates the separation of
powers.
- The Constitution establishes highest office in the land i.e. office of the president and grants the
occupant power of head of state and Government.
- The Constitution provides the fundamental rules and freedoms individual and guarantees their
protection.
- It provides procedure of its amendment within itself.
QUESTION 8
(b) (i) – Categories of Judicial precedent
- Declaratory precedent:
A judge applies to the facts of one particular case a legal rule previously enunciated in an earlier
trial. The decision declares existing law.
- Original precedent:
In a case unlike any similar case the judge makes his own mind what the common law is.
(ii) Advantages of judicial precedents:
Advantages:
- Certainty and Predictability: In Dodhia V. National and Grindlays Bank the Court of Appeal
was emphatic that “a system of law requires a considerable degree of certainty.” Case law makes a
legal system certain and predictable.

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- Consistency and uniformity: case law facilitates consistency and uniformity in the administration of
justice as similar cases are decided in alike.
- Rich in detail: many decisions which constitute precedents have been made.
- Practicality: judicial precedent is practical in that principles or propositions of law are formulated on
the basis of practical circumstances that demand legal solutions.
- Flexibility: it is contended that case law is flexible in that judges in subsequent cases attempt and
sometimes succeed in distinguishing earlier decisions so as to justify departing from them.
QUESTION 9
c) Circumstances under which African Customary Law may be applied in court.
 Customary law is applicable only in civil cases.
The District Magistrate's Courts Act restricts the civil cases to which African customary law may be
applied to claims involving any of the following matters only:
1) Land held under customary tenure:
2) Marriage, divorce, maintenance or dowry:
3) Seduction or pregnancy of an unmarried woman or girl:
4) Enticement of, or adultery with, a married woman:
5) Matters affecting status, particularly the status of women, widows and children, including;-
Guardianship, custody, adoption and legitimacy:
6) Intestate succession and administration of intestate estates, so far as it is not governed by any
written law.
 One of the parties must be subject to it or affected by it. If the plaintiff and the defendant belong
to the same ethnic group, they may be said to be 'subject' to the customs of that ethnic group which
could then be applied to settle the dispute. For example, a dispute between Kikuyus relating to any
of the matters listed in (b) above cannot be settled under Kamba, Luo or any other customary law
except Kikuyu customary law. However, if there is a dispute involving parties from different ethnic
groups it may be determined according to the custom of either since one party would be subject to
and the other party 'affected' by the custom.
 The customary law will only be applied if it is not repugnant to justice and morality.
 The customary law that will be applied only if it is not inconsistent with any written law.
 African customary law is not applicable if it is expressly excluded by a contract by the parties
involved or by the nature of the transaction in question.
It is a dreadful thing for

anyone to be lost; I do not
know if there is a more
dreadful
word in the English language
than that word “lost.”

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TOPIC 3
ADMINISTRATIVE LAW
QUESTION 1
(a) Rules of natural justice:
 The rule on opportunity to be heard - A person must be given notice of the case against him so
that he can defend himself if he wishes.
 The rule against bias - A person should not be a judge in his own cause. A man· should not be
the plaintiff or prosecutor in an action and at the same time sit in judgement to decide in that
particular case.
(b) The High Court can remove an arbitrator where he has misconducted himself.
Such misconduct may arise:
 Where he has accepted a bribe.
 Where he is secretly interested in the subject matter.
 Where he has refused to state a case for the opinion of the court on a material part of
law.
QUESTION 2
(c) Remedies available to a party whose rights and freedoms have been infringed:-
- Habeas Corpus - an order to produce a person who is unlawfully detained.
- Certiorari - an order to quash the decision of a lower court or quasi-judicial body for acting in
excess of jurisdiction.
- Mandamus - an order to command or direct a public officer to carry out a public duty.
- Prohibition - an order of the High Court preventing an inferior court from hearing a case.
- Damages - This is a common law remedy designed to compensate the innocent party by an award
of unliquidated damages.
- Injunction - This is a court order telling a person either to do a thing or refrain from doing a
particular act.
- declaration
QUESTION 3
(a) Discuss five other forms of dispute resolution other than the courts of law.
Arbitration
This is an out of court method of settlement of civil disputes by arbitral tribunals which make arbitral
awards as opposed to judgments.
The law relating to arbitration in Kenya is contained in the Arbitration Act2,. Under the Act, an
arbitration agreement is an agreement between parties to refer to arbitration all or certain disputes arising
between them.
Negotiation
“Meet and sit down and try and arrive at a conflict resolution without help of a third party”
Negotiation is any form of communication between two or more people for the purpose of arriving at a
mutually agreeable solution. In a negotiation the disputants may represent themselves or they may be
represented by agents and whatever the case, whether they are represented or not represented, they have
control over the negotiation process.
Mediation

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Mediation is a non-binding process in which an impartial third party facilitates the negotiations process
between the disputants and it is that impartial third party who is called the mediator. The mediator has no
decision making power and the parties maintain the control over the substantive outcome of the
mediation.
Ombudsman
An ombudsman is a person who investigates complaints and attempts to assist the disputants to reach a
decision. Usually this is an independent officer of the government or a public or quasi-public body. An
ombudsman can be classified as an alternative dispute resolution mechanism.
Ombudsmanship is practiced in Sweden. In Kenya we have a Complaints Commission.
Early neutral evaluation (ENE)
This is where the parties to the dispute consult a 3rd party with regard to the dispute. The 3rd party then
advises them on the likely outcome of the conflict should it be referred either to the Courts or to other
formal means of dispute resolution.
Most Advocates usually carry out ENE.
Mini trial
This can either be judicial or private, and is similar to ENE above.
In a Judicial Mini Trial, the parties are already in Court and they go before a Judge. The synopses of their
cases are presented and the judge advises on the likely outcome if the matter was to go to trial.
QUESTION 4
(a) Circumstances when the court might set aside an arbitration award
 the incapacity of a party or invalidity of the arbitration agreement;

 a failure to notify an arbitrator appointment or initiation of proceedings;
 the award was beyond the scope of the arbitration agreement;
 invalid constitution of the arbitral tribunal;
 the subject matter was not arbitratable (not capable of resolution by arbitration); and violation of
public policy.
QUESTION 5
(b) Three rules of natural justice
 No one should be penalized by a decision of a court or tribunal unless he has been given prior
notice of the charge or case and fair opportunity to answer the case
 An adjudicator should not act as a judge and a prosecutor in the same case.
 No one should be a judge in his own case.
 Justice delayed is justice denied
 Justice should not only be done it should be seen to have been done
QUESTION 6
(b) Modes of judicial control over subordinate courts and tribunals
 Mandamus order
Literally means "we command". It is an order directed to a subordinate court or anybody exercising quasi-
judicial powers, commanding it to do a particular thing. It is issued in cases where the subordinate courts
or the body has failed to discharge its legal duties or has discharged these duties improperly.
 Habeas corpus
Means "produce the body". It is an order of the High Court directed at a person or authority detaining
another person ordering the detained in the court and show cause why the detained should not be released
forthwith. This writ is meant to ensure speedy trial of a detained person and also to stop unlawful

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detention.
 Centiorari order
This writ is issued to subordinate courts and anybody exercising quasi-judicial authority. The grounds for
the issue of this writ are:-
a) Use of excess jurisdiction
b) Lack of jurisdiction
c) Correction of errors apparent on face of records
d) Biased decisions
e) Improper exercise of discretion
f) Breach of rules of natural justice.
 Prohibition
This writ is directed to the subordinate courts or anybody exercising quasi-judicial authority prohibiting it
from doing a particular act. The conditions for issue are similar to those of certiorari. But this writ is not
proper in cases where the subordinate court of the body exercising quasi-judicial powers has finally given
it judgement.
QUESTION 7
b) Concept of ' rule of law'
The concept of the Rule of Law is a framework developed by Dicey on the basis of the English Legal
system. It is also described as the due process.
According to Dicey, rule of law comprises three distinct conceptions namely;
1. Absolute supremacy or predominance of regular law; this means that all acts of the State are
governed by law. It means that a person can only be punished for disobedience of the law and
nothing else.
2. Equality before the law; this means equal subjection of all persons before the law. It means that no
person is exempted from obeying the law. All classes of persons are subjected to the same judicial
process regardless of their age, sex, creed, gender or race.
3. The law of the constitution is a consequence and not the source of rights; means that the law is a
manifestation of the will of the people.
The significance of the rule of law is;
- It enables individuals and citizens to respect the fundamental rights and freedoms and to reduce
or stamp out impunity,
- It facilitates smooth running of government affairs.
- It enhances economic growth within the state.
- It enhances political stability and democracy.
- The rule of law is undermined by:
• Excessive power of the Executive
• Ton - independent Judiciary
• Corruption
• Selective prosecution
• Civil unrest
• Ignorance of the law
QUESTION 8
c) Remedies available in a civil action.
 Committal to civil jail

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This is a short jail term where the judgment debtor has failed or refused to honour the decree.
The objective is to compel such person to retain his position and respect the court order.
 Specific performance
This is a court order which compels the defendant to perform his part of the contract as agreed. It compels
the defendant to fulfill his promise in accordance with the contract without an option to pay damages. It is
an equitable remedy which manifests the maxim that equity acts in personam. The remedy may be availed
where;
- Monetary compensation is inadequate
- The subject matter is unique or has peculiar characteristics, such as land
- A contract is breached in anticipation.
 Injunctions
This is a court order which either restrains a party from doing or continuing to do a particular thing or
compels it to undo what it has wrongly done. An injunction may be prohibitory or mandatory.
A prohibitory injunction restrains a party from doing or continuing to do a particular thing while a
mandatory injunction on the other hand compels a party to put right what it has wrongly done. It is
restorative in nature.
Injunctions are either interim or temporal and perpetual or permanent. An injunction is an equitable
remedy which may be granted in the following circumstances:-
- If money cannot adequately compensate the plaintiff
- If it is necessary to maintain the status quo i.e. maintaining things as they are
For an injunction to be granted the applicant must establish that:
- He has a prima facie case with overwhelming chances of success
- If the remedy is not granted he will suffer irreparable injury.
 Rescission
The essence of this remedy is to restore the parties to the position they were before the contract.
It is an equitable remedy whose award is discretional.
The remedy may be availed whenever a contract is vitiated by misrepresentation.
However the right to rescind a contract is lost in various ways: -
- Delay: A contract cannot be rescinded if a party has slept on its right for too long as "delay defeats
equity". In Leaf V International Galleries Ltd., where the plaintiff purported to rescind a contract after
5 years, it was held that the remedy was not available on account of delay.
- Affirmation: A party loses the right to rescind a contract if it expressly or by implication accepts the
contract.
- Third party rights: A contract cannot be rescinded after 3rs party rights have arisen under it, as this
would interferes with the rights of a person who was not privy to the original contract.
- Restitution in integrum not possible: Rescission is not available if the parties cannot be restored to
the position they were before the contract. E.g. if one of the parties is a company and it has gone into
liquidation.
Quantum Meruit;- Literally means, as much as it is earned or deserved.

This is compensating a party on the basis of the proportion of work completed.
It is an equitable remedy available in the following circumstances.
- Where a contract is divisible and the party was performed part of its obligations (Ritchie V Atkinson.
- Where partial performance is accepted and the party has so performed
- Where the contract does not specify the amount or sum payable.
- Where the contract is substantially performed, the party that has performed is entitled to
compensation for work done.

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- Where a party ready and willing to perform its part of the contract but is prevented from doing so by
the other.
Damages
It is a monetary compensation awarded to an aggrieved due to breach of legal injury sustained. It is not
for every injury that a party shall be granted damages but only for those injuries which were a proximate
consequence of the wrong complained of .. There are various kinds of damages including the following:
general, nominal, punitive, exemplary, special, liquidated and unliquidated damages. Damages, as a
remedy, will usually accompany other remedies.
QUESTION 9
(a) (i) Meaning of the term arbitration
This is a method of settlement of civil disputes out of court by arbitrators or arbitral tribunals that make
arbitral awards. A dispute may be referred to arbitration by the disputing parties, statute or a court of law.
Arbitrators may be appointed by the parties, a 3rd party of a court of law on application. Arbitrators enjoy
certain powers;
o An arbitral award may be set aside by a court of law in application.
o The law on arbitration is contained in the Arbitration Act, 1995.
(ii) The advantages of arbitration as a form of settlement of disputes

i) Time saving
It is a faster method of dispute resolution.
ii) It is convenient
i.e. parties are allowed to determine;-
- Number of arbitrators
- Venue of proceedings
- Language to use etc.
iii) Cost
The cost of using arbitration as a method of settling dispute is relatively low.
iv) Expertise and specialization:
The parties to the dispute have the opportunity to appoint the most qualified or specialized
persons to determine their dispute
v) Privacy:
Arbitration tribunals are conducted in private free from undue publicity.
vi) Flexibility:
Arbitration tribunals are bound by previous awards. This provides room for exploration.
vii) Informality:
Arbitration proceeding are free from legal formalities i.e. they are les technical in approach.
(b) Constitutional concept of separation of powers and ways in which it can be applied in your
country
- Under the doctrine of separation of powers, reference is usually made in relation to groups or
bodies with administrative powers or authority.
- These bodies are the executive, the legislature, and the judiciary.
- They must be separated in order to ensure proper and easy functioning of the state duties.
- These organs are supposed to be clearly defined and their powers as well as duties outlined in a
manner that is not vague or ambiguous.
- These bodies should be autonomous and must operate independently without any element of
interference unless the situation calls for it.

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- The legislature should not exercise judicial or executive powers. The executive should not
exercise legislative or judicial powers and the judiciary in the same context should not exercise
the legislative or executive powers.
- This means:
- That the powers of any one branch of the government should be exercised purely and absolutely
by that branch only and not the other two.
- That the branch or organ of the government should never be controlled or interfered with in the
exercise of its powers.
- That the same persons should not form or be part of more than one of the three branches of the
government.
QUESTION 10
a) Remedies that may be granted by the High Court to enforce the enjoyment of fundamental rights
and freedoms of individual’s.
The High court has exclusive powers under the constitution to grant special orders for the enforcement of
fundamental rights and freedoms of individuals
These writs or remedies that may be granted by High court
i). Habeas Corpus:
Means "produce the body". It is an order of the High Court directed at a person or authority
detaining another person ordering the detained in the court and show cause why the detained
should not be released forthwith. This writ is meant to ensure speedy trial ofa detained person and also to
stop unlawful detention.
ii). Certiorari:
This writ is issued to subordinate courts and anybody exercising quasi-judicial authority. The
grounds for the issue of this writ are:-
 Use of excess jurisdiction
 Lack of jurisdiction
 Correction of errors apparent on face of records
 Biased decisions
 Improper exercise of discretion
 Breach of rules of natural justice.
iii). Mandamus:
Literally means "we command". It is an order directed to a subordinate court or anybody
exercising quasi-judicial powers, commanding it to do a particular thing. It is issued in cases
where the subordinate courts or the body has failed to discharge its legal duties or has discharged
these duties improperly.
iv). Prohibition:
This writ is directed to the subordinate courts or anybody exercising quasi-judicial authority
prohibiting it from doing a particular act. The conditions for issue are similar to those of
certiorari. But this writ is not proper in cases where the subordinate court of the body exercising
quasi-judicial powers has finally given it judgement.
vi). The order of declaration:

This order is issued to declare the legal position without substituting the appropriate remedy.
This order is common in cases where there is a dispute as to the ownership of property or any
other right.

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b). Function of Judiciary

The judiciary comprises of various courts of law and there presiding officers, including the Judicial
Service Commission. Each court has specific jurisdiction but the general functions include the following:
(Depending on the particular court or judicial officer)
i) The judiciary is the law interpreting organ of the government. It interprets the constitution and all
other laws of Kenya.
ii) It prescribes punishment to convicted persons.
iii) It administers oath of office to constitutional office bearers e.g. the President.
iv) Prescribes protective measures over infringement of the Fundamental rights and freedoms of the
individual.
v) It makes law under case law. (judicial precedent)
vi) It checks on the functions of the Legislature and Executive under system of checks and balances.
vii) It checks on the operation of the courts of law. (Through the High Court)
viii) It interviews prospective candidates to certain judicial positions before forwarding the shortlisted
to the executive.
ix) It hears and determines disputes and grievances of judicial officers in the course of duty.
(Through the Judicial Service Commission)
It hears and determines legal disputes arising within the territory of Kenya.

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TOPIC 4
COURT SYSTEM
QUESTION 1
(b)
(i) The High court is established by Section 165 (1) of the Constitution. It ranks below
the Court of Appeal.
(ii) Composition of the High Court

 The High Court shall consist of the number of judges prescribed by an Act of Parliament.
 There shall be a Principal judge of the High Court who shall be elected by the judges of the High
Court from among themselves.
(iii) Jurisdiction
 The High Court shall have unlimited original jurisdiction in criminal and civil matters.
 Jurisdiction to determine the question whether a right or fundamental freedom in the bill of rights
has been denied, violated, infringed or threatened.
 Jurisdiction to hear any question in respect of the interpretation of the constitution.
 Any other jurisdiction, original or appellate, conferred on it by legislation.
QUESTION 2
(b) Powers of the Business Premises Rent Tribunal in your country.
 To fix the amount of service charge if included in the rent payable.
 To determine whether or not any tenancy is controlled tenancy.
 To determine or vary the rent payable in respect of any controlled tenancy.
 To apportion rent between tenants if a controlled tenancy is shared by tenants.
 To enter arid inspect premises comprised in a controlled tenancy.
 To facilitate the levy of distress for rent.
QUESTION 3
(a) Rules used in interpretation of statutes:-
- Literal rule: This is the primary rule of interpretation. It requires judges to interpret the words of
a statute according to their grammatical or dictionary meaning
- Mischief rule: Under this rule the court will examine the Act or Rule to ascertain what; its
purpose was and the 'mischief' or defect for which the common law had no provision.
- Golden rule: This rule will be used by the court in order to avoid arriving at an absurd, decision.
Ejusdem generis rule: The rule states that, where general words in an Act or rule follow particular
words, the general words are to be construed as being limited to the persons or things within the class
designated by the particular words

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QUESTION 4
(c) The party making the application must furnish proof;
- That a party to the arbitration agreement was under some incapacity.
- The party making the application was not given proper notice of the appointment of an arbitrator
or of the arbitral proceedings.
- The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the
agreement of the parties.
- The arbitration agreement is not valid under the law to which the parties have subjected it
- The making of the award was induced or affected by fraud, bribery, undue influence or
corruption.
- Error of law contrary to public policy
- Error of fact
QUESTION 5
(a) Describe the various types of jurisdiction of the High court in your country
1. Supervisory Jurisdiction
The High Court in exercising supervisory jurisdiction in any civil and criminal proceedings before
subordinate courts and may make such orders, issue such writs and give such directions as may consider
appropriate for the purpose of ensuring that justice is duly administered by such courts. This includes the
power of the High Court to transfer proceedings from one court to the other. To invoke the supervisory
jurisdiction of the High Court, a person must have exhausted all other available remedies and right of
appeal. The High Court has supervisory jurisdiction over the subordinate courts and over any person,
body or authority exercising a judicial or quasi-judicial function, but not over a superior court. For the
purposes of aforesaid supervisory jurisdiction, the High Court may call for the record of any proceedings
before any subordinate court or person, body or authority referred, and may make any order or give any
direction it considers appropriate to ensure the fair administration of justice.
2. Interpretation of the constitution
Where any question as to the interpretation of the constitution arises in any proceedings in any
subordinate court, and the court is of the opinion that the question involves a substantial question of law,
the court may, and shall if any party to the proceedings so requests, refer the question to the High Court.
The High Court shall be composed of an uneven number of judges, not being less than three when it
determines the constitutional question referred to it. The decision of the High Court is binding on the
Court that referred the question to the High Court and it must dispose of the case in accordance with the
High Court‟s decision.
3. Admiralty Jurisdiction
Section 4 of the Judicature Act Cap 8 (1967) provides that the High Court will act as a court of admiralty
and will decide “matters arising on the high seas or in territorial waters or upon any lake or other
navigable inland waters in Kenya”. The law applicable to be exercised the conformity with international
law and the comity of nations.
4. Election jurisdiction
Under the National Assembly and Presidential Election Act, the High court has special powers to hear
and determine disputes arising from the national electoral process. The High Court may make an order as
it deems fit, including the nullification of the election results upon hearing of a petition presented to it by
a voter or loser in the election. For the High Court to nullify the election of a Member of Parliament, the
petitioner must prove that an election offence has been committed. The composition of the High court is
that one (1) Judge sits to determine dispute in parliamentary election while Three (3) Judges must sit if it
is presidential election. Any appeal on the High Court decision on presidential election goes to the Court
of Appeal where at least five (5) Judges will sit to determine the appeal. Disputes in the election of
councillors go to subordinate courts.

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5. Succession/Probate Jurisdiction
The Probate Division of the High court has jurisdiction to hear any application and determine any dispute
and pronounce such decree and issue such orders as my be expedient in inheritance matters for instance
the High Court may issue probate i.e. a person has been validly appointed by a will to administer the
property of the deceased.
6. Matrimonial Cases
The court exercises jurisdiction in divorce matters. In exercise of its matrimonial jurisdiction, the High
Court may issue orders for:-
a. Dissolution of marriage.
b. Nullity of marriage.
c. Separation and maintenance (alimony).
d. Custody, adoption and guardianship of infants
e. Spousal Property and financial adjustments
7. Other powers
a) To protect and enforce fundamental rights and freedoms of individuals which are set out in
Chapter 5 of the Constitution also otherwise referred to as Bill of Rights.
b) To hear and determine bankruptcy proceedings
c) To supervise winding up of dissolved companies.
QUESTION 6
(c) Advantages of stare decisis
(i) Certainty and Predictability

The doctrine of stare decisis introduces an element of certainty and uniformity in the administration of
justice.
(ii) Flexibility
Because of the freedom that the final Court of Appeal usually has to depart from a previous decision of its
own if the social conditions that necessitated such decision no longer exist, there is flexibility in the
administration of the law as human societies grow and become more complex.
(iii) Aptitude for growth

The process of 'distinguishing' cases facilitates the growth of detailed legal principles to deal with
different factual situations. This would probably not be possible in a purely enacted system of law.
A case is 'distinguished' if a judge points out the difference in the material facts of an earlier case and the
case before him for decision, as the basis for arriving at a different decision.
(iv) Practicality
The case law method has enabled judges to adopt a practical approach to legal problems since such
problems have arisen from the practical situations in which the litigants have found themselves. This
practical approach has also enabled judges to make decisions only after being satisfied that the particular
decision would not create practical problems for the people subject to the law.
Disadvantages
(i) Rigidity
The case law method of administration of justice has been criticized on the grounds that it leads to
rigidity, since the discretion of a judge is usually restricted by the rule that he must follow the decision of
his predecessors if the material facts of the case to be decided are the same as those of an earlier case.

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(ii) Over-subtlety/Artificiality
Because a judge is forced, as it were, to follow an earlier case which his conscience may preclude him
from following, he might be inclined to 'distinguish' the present case from the earlier case. This artificial
'distinguishing' sometimes creates artificial differences which make case law over-subtle.
(iii) Bulk and Complexity

Because so many cases are being decided everyday by courts all over the country, case law has become
bulky and complex and it is doubtful whether judges would really know if a relevant earlier case had been
decided, say some ten years ago.
(iv) Piece-meal
Rules of law are made in bits and pieces
QUESTION 7
(b) Functions of the Attorney General
 Is the principal legal adviser to the government
 Represents the government in court
 Appears as a friend of the court in any civil proceedings to which the government is not a party.
 Promote, protect and uphold the rule of law and defend the public interest
QUESTION 8
b) Four reasons a judge in the high court would issue certiorari are:
 To secure an impartial trial.
 To review an excess of jurisdiction.
 To challenge an ultra vires act.
 To correct errors of law on the face of record.
 To quash a judicial decision against the rules of natural justice
QUESTION 9
(c) Circumstances under which the court my set aside an award
 Error by arbitrator
 Material defect in the award
 Omission by the arbitrator
QUESTION 10
a) Jurisdiction of the lands disputes tribunal
The land disputes tribunal is established by the Land Disputes Tribunals Act Cap 303 Laws of Kenya.
Under Section 3 of the Act, the tribunal hears and determines all cases of a civil nature involving any
dispute as to the division of land, a claim to occupy land or trespass to land.
The tribunal adjudicates upon all civil cases and reaches a decision in accordance with recognized
customary law. The hearings are presided over by a chairman and the decision is by simple majority.
Every registration district has a land disputes tribunal consisting of the chairman appointed by the District
Commissioner from the panel of elders.
c) Conditions necessary for the remedy of "mandamus" to apply

Mandamus: It is "the command". It is granted by the High Court to a person or organ exercising a public

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duty and requires such a person to do that which is expected by law. E.g. it may be granted against a
licensing officer or registrar of persons ordering him to justify his failure to issue relevant documentation
to a qualified applicant.
Where the officer fails to justify his action, he shall be ordered to prepare and present the necessary
documents. The aggrieved may thereafter sue for compensation.
Conditions
 The plaintiff must prove that he incurred some financial loss as result of the delays by the defendant.
 The plaintiff must have been eligible for such considerations and thus no cause that warrants any
delays.
 That the delay by the defendant was intentional and unnecessary.
QUESTION 11
Rules that the court may apply in interpretation of a statute
Over the years, courts have developed rules which they rely upon to guide them when
interpreting a statute or a delegated legislation. These rules include:-
(i) The literal rule

This is the primary rule of interpretation. It is also known as litiria scripta.
Under this rule, the words of the law are interpreted according to their grammatical or dictionary
meanings. Generally speaking, this is a command that the court should not depart from the ordinary
meaning of the words by adding or taking away from them.
This rule requires a court not to apply any tact when the very words of the law are by themselves clear.
CASE: Rv's Haris
The accused was charged under statute which made it an offence for someone to 'stab', 'cut' or
'wound' any person. The accused in a heated argument proceeded and bit the end of another
person thereby injuring him.
HELD:
Applying the literal rule of interpretation, it was held that the accused was not liable under the
act. This was so because the word 'stab' 'cut' or 'wound' in their literal interpretation, indicated
that for an offence to be committed under the statute, the offender must use some form of
instrument.
(ii). The golden rule

Sometimes applying the literal rule may result into inconsistency, absurdity, inconvenience or
repugnance and this would not give adequate effect to the statute. In such circumstances, the
literal rule of interpretation is departed from in favor of the golden rule. Under this rule, the
words of the statute or the delegated legislation are interpreted in such a manner to remove any
inconsistency, absurdity, inconvenience or repugnance that might arise from the literal
interpretation of the words used.
CASE: Ref sysworth (1535)

X murdered his mother and according to the English law of succession, X was the only heir to inherit his
mother's property. A literal interpretation of the word 'heir' would make X to inherit his mother's property
thereby resulting into absurdity, in that, a murderer would be allowed by law to inherit his victim's
property. Departing from the ru le of interpretation, the word' heir' was interpreted not to mean and
include any person who might have participated in the death of the person whose property is to be
inherited. Therefore, X was found not to be falling within the meaning of the word 'heir'.
iii). Mischief rule

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Another situation in which the literal rule is departed from is afforded by the mischief rule. It is also
known as The historical rule of interpretation.
Sometimes it is not possible to ascertain the intention of the maker of the law through literal
interpretation. In such cases, the literal is departed from and the mischief rule is applied. Under this rule,
the court examines the law in order to ascertain the very purpose the law was intended to achieve. This is
done by asking the full questions:
1). What was the position under the common law before the making of the law.
2). What was the mischief and the defect which the common law did not provide for.
The court then proceeds to interpret the law in such a manner that the mischief or defect which was not
provided for under the common law is suppressed.
CASE: Gardner vs Serenorks (1915)

An English statute provided for the safe storage of certain inflammable materials in a cave and when
someone was working around the cave, the materials exploded and he was injured and Mr.Z was sued.
Mr.Z in his defence argued that the Act did not apply in his case since the materials were not on promises
but ill a cave.
HELD:
Applying the m isch ief rule, the court looked at the very purpose of the law and come to a
conclusion that the Act was aimed at protecting person working in places where inflammable
materials were stored, Therefore the word 'promises' in the Act included a cave and the Law
was held applicable in the case of Z.
O Hope of every contrite

heart, O joy of all the meek,
to those who fall, how kind
thou art, How good to
those who seek.
Bernard of Clairvaux.

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TOPIC 5
LAW OF PERSONS
QUESTION 1
(a)
(i) Salient features of a limited partnership
 Must not consist of more than twenty people, or in the case of banking ten.
 One of the partners must be a general partner. A general partner is liable for all the debts of the
firm, while a limited partner does not incur any liability beyond the amount he has already
contributed.
 A limited partner must not draw his share as long as the partnership continues.
(ii) Duties of a general partner in a limited partnership

 He runs the affairs of the partnership firm and in the event of the dissolution; its affairs shall be
wound up by the general partner.
 His actions are binding on the partnership. The general partner shares in management. He is thus
liable for all the debts and obligations of the firm.
QUESTION 2
(a) The court might decree dissolution of a partnership on the following circumstances-
- When a person is adjudged a lunatic or is shown to the satisfaction of the court to be of
permanently unsound mind,
- When a partner, other than the partner suing, become in any other way permanently incapable of
performing his part of the partnership contract.
- When a partner, other than the one suing, has been guilty of such conduct as, in the opinion of the
court, regard being had to the nature of the business, is calculated to affect prejudicially the
carrying on the business. .
- When a partner, other than the partner suing, wilfully or persistently commits a breach of the
partnership agreement.
- When the business of the partnership can only be carried at a loss,
- When in the opinion of the court circumstances arise that renders it just and equitable the
partnership be dissolved.
(b) (i) Trade union means an association of employees whose principal purpose is to regulate relations
between employees and employers, including any employer organisation
(ii) A strike means the cessation of work by employees acting in combination, or concerted refusal or
a refusal under a common understanding of employees to continue to work for the purpose of
compelling their employer or an employer's organisation to accede to any demand.
Whereas a trade dispute means a dispute or difference, or an apprehended dispute or difference

between employers and employees, between employers and trade unions concerning any
employment matter.
(iii) Rights of a trade union member:-

- Right to participate in its lawful activities.
- Right to participate in the election of its officials and representatives.

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- Right to stand for election and be eligible for appointment as an officer or official.
- Right to stand for election or seek for appointment as a trade union representative.
- Right to attend meetings
- Right to withdrawal from membership
- Right to protection from civil suit for corrective action
QUESTION 3
(a) Explain three types of domicile.
1. Domicile of origin
This is the domicile a person acquires at birth. Sections 3-6 of the law of Domicile Act sets out the
rules / principles governing acquisition of domicile of origin:
a) An infant born legitimate acquires the domicile of the father.
b) An infant born after the father‟s death acquires the domicile of the father as at the date of death.
c) An infant found without parents (foundling infant) is deemed to acquire the domicile of the country
in which he is found.
d) An infant legitimated by the marriage of its parents acquires the domicile of the father as at the date
of legitimating.
e) An adopted infant acquires the domicile of the adopter.
f) An infant adopted by spouses acquires the domicile of the husband.
g) Domicile of origin is never lost but may be suspended when a person acquires a domicile of choice.
2. Domicile of dependence
This is the domicile of a person who is legally dependant on another.
This domicile changes with that of the other person e.g. the domicile of an adapted infant depends on that
of the adopter, while that of a legitimate infant depends on that of the father.
Domicile of an infant married woman depends on that of her husband.
3. Domicile of choice
This is the domicile a person acquires by choosing which country to make his permanent home.
Every person of sound mind who has attained the age of majority (18 years) has capacity to acquire an
independent domicile of choice.
For a person to acquire a domicile of choice, he must:
Take up actual residence in the country of choice.
Have the intention of making the country his permanent home.
Once a domicile of choice is acquired, the domicile is suspended but is reverted to when the domicile of
choice is lost.
Under the law of domicile Act, upon marriage, a woman acquires her husband‟s domicile.
Under section 10 (1) of the Act, no person may have more than one domicile at a time and no person shall
be deemed to be without domicile.
(b) Identify four advantages a company has over a partnership as a form of business organisation.
1. Limited Liability
First and foremost benefit of doing business via company is the limited liability conferred upon the
company's directors and shareholders. As a sole trader or partnership business, personal assets of the
proprietor or partners can be at risk in the event of a failure of the business, but this is not the case for a
Company. The unfortunate events like business failures are not always under an entrepreneur‟s control;
hence it is pivotal to secure the personal assets of the businessman in the event of crises.
Unlike proprietorship and partnership, if a Company becomes insolvent and is wound up, only the assets
of the company are used to clear its debts. The Directors or Shareholders of the company have no
personal liabilities and are not made bankrupt and are free to carry on business.

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2. Legal Entity/Status or Recognition

A private limited company is a legal entity, a juristic person established under the Act. It has its existence
separate from its directors and members.
Private limited company status enables you to be taken more seriously than a proprietorship/partnership
status does.
Operating as a private limited company often gives suppliers and customers a sense of confidence in a
business. Larger organisations in particular will prefer in dealing with private limited companies than
proprietorship/partnership organisations.
Easy to attract quality workforce and achieve strategic motivation of employees by using flexible and
wide range of management designations.
3. Perpetual Succession
Another important characteristic of a private limited company is perpetual succession. It is a popular
saying that the directors may come and go the members may come and go, but the existence of a company
remains forever. A company once incorporated remains alive unless and until it is wound up by
complying with the provisions of Law. The death, disability or retirement of any of its members does not
affect the continuity of the company, irrespective of change in its membership.
There is no obligation for a Private limited company to commence business/trading within any set time
period after its incorporation.
4. Project Cost and Risk Factors
For entrepreneurs going for hi-tech or high capital outlay projects it is always advantageous to go in for a
company form of organisation. Where the financial stake involved is high, it is found that banks and
financial institutions while sanctioning financial assistance, insist on having a private limited company.
5. Easy Transferability
Where it is proposed to sell the business as a going concern, all that is required is to transfer the entire
shareholding to the purchaser and thus facilitate easy change in management and ownership. This will
save time and money of the Promoters. Huge amount of stamp duty is saved.
6. Dual Relationship
In the company form of organisation it is possible for a company to make a valid effective contract with
any of its shareholders/directors. It is also possible for a person to be in control of a company and at the
same time be in its employment.
7. Borrowing Capacity
A company enjoys better avenues for borrowing of funds. It can issue debentures, secured as well as
unsecured, accept deposits from the public, etc. Even banking and financial institutions prefer to render
large financial assistance to the company rather than partnership firms or proprietary concerns.
8. Taxation
Sole traders and partnerships pay income tax. Companies pay Corporation tax on their taxable profits.
There is a wider range of allowances and tax deductible costs that can be offset against a company's
profits.
QUESTION 4
(a) Disadvantages of a limited partner
 He cannot participate in the management of the firm.
 He cannot bind the firm.
 He is not entitled to dissolve the partnership by notice.
 His death does not dissolve the partnership, unless provided for in the agreement.
QUESTION 5
(c) Distinction between memorandum and article of association

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 Memorandum of association governs the company and outside world, whereas the article are
internal rules of management
 Memorandum of association must be registered with registrar whereas the company may choose
to adopt Table A of the Companies Act.
 Acts ultra vires the memorandum of association are void, while those ultra vires the Articles can
be ratified by members in a general meeting.
 The memorandum of association is subject to the Act, while the Articles are subject to both the
Act and the Memorandum of Association.
 The memorandum is hard to alter while Articles are easily alterable.
QUESTION 6
(c) Mary Kinga will accrue the following rights and obligations as an assignee
 She is entitled to receive the share of profits which the assignor was entitled
 She receives the share of the assignor in case of dissolution of the partnership.
 She is not personally liable for the debts of the firm if she is a minor
 She is entitled to attend meetings of the firm but not to note or contribute in the
deliberations.
 She is not entitled to inspect the books of account of the partnership.
 She is not entitled to interfere with the management of the firm.
QUESTION 7
(b) Rights and duties of partners in a partnership with no partnership agreement
Rights of partners
 Equal profit and loss sharing
 Equal right to participate in management.
 The right to require certain property of the firm to be sold in payment of a certain obligation
(equitable lien).
 Right to oppose the introduction of new partners.
 Interest of 6% per annum on any money lent by partners to the firm.
 The books of the partnership are to be kept at the principal place of business of the partnership and
every partner is to have access to them for the purpose if inspecting them, or of taking copies.
 Every partner must be indemnified by the firm in respect of personal liabilities incurred and
payments made by him in the ordinary course of the firm's business or in respect of anything
necessarily done for the preservation of the business or property of the firm. This is a partner's right
as an agent of the firm.
Duties of Partners
1. To carry on a business to greater common advantage of the firm. The basis of partnership is
mutual trust and confidence thus the partners must carry on the business of the firm to the greatest
common advantage. He is required to do his best in the interest of the firm.
2. Act in good faith. A partnership agreement is a contract of utmost good faith and thus every
partner must be just and faithful. Good faith means that he shall not obtain private advantage at
the expense of the firm.
3. To act diligently. Every partner is bound to attend diligently to his duties in the conduct of his
knowledge and skill to the common advantage of the firm.
4. Share of loses. It is the duty of every partner to contribute to the losses of the firm. In the absence
of an agreement to the contrary, the partners are bound to contribute equally to the losses of the
firm.

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5. Duty to enter accounts- partners are bound to render true account that is any money received and
expenditure met must be clearly reflected. Full information of all things affecting the partnership
must be reflected and communicated to any partner or his legal representative.
6. Accountability- every partner must account to the firm for any benefit derived by him without the
consent of another partner from any transaction concerning the partnership or from any use by
him of the property of the firm or use of the names of the firm in any business connections.
7. Duty not to compete- a partner must not carry on any business of the same nature as to compete
with that of the firm. If he does so he is bound to account for and pay to the firm all profits made
by him in that business.
8. To act within authority- every partner is bound to act within the scope of his actual or implied
authority where he exceeds the authority conferred on him and the firm suffers loss he shall have
to compensate the firm.
QUESTION 8
c) i) Liability of the firm in torts committed by one partner
Where a partner commits a tortuous act, the remaining partners are jointly and severally liable with him,
provided they authorised the act either expressly, or by implication, where the act was done within the
ordinary course of the firm's business. This is as provided in Section 14 of the Partnership Act.
For instance, in the case of HamJn v. Houston & Co a partner in a firm bribed the agent of another firm
for the purpose of obtaining useful information for the partnership. It was held that his co-partners were
jointly and severally liable, since the obtaining of useful information was in the ordinary course of
business.
The firm is generally liable for acts or omissions of a partner committed or omitted within the scope of his
authority.
For the other partners to be held liable, it must be proved that:

- The partner was acting in the ordinary business of the firm
- The partner was acting in the usual way
- The partner was acting in his capacity as a partner
However, the other partners are not liable for acts of a partner if for example, he signs a deed without
authority or where he acts in a personal capacity. A 3rd party who has dealt with a partner has two causes
of action; He is entitled to sue the partner dealt with or all the partners. This is because the liabilities of
the partners are unlimited and a partner is liable to lose private assets if the firm is insolvent.
Suing a single partner disqualifies the 3rd party from suing other partners on the transactions. Suing all
the partners enables the 3rd party to execute the court order against all the parties. (This is because the
partners are jointly and severally liable)
ii) Liability of an individual partner for the liabilities of the firm.

The liability of a general partner extends to the whole of the debts of the partnership.
He jointly with the other partners for this reason a creditor can pursue one of two courses of action.
Firstly, he can proceed against the partners jointly i.e. in the firm name. If he obtains judgment against the
firm, the debt must be satisfied out of the assets of the firm. If, however, the assets of the firm are
insufficient, then the creditor can look to the private assets of the partners in order to satisfy his debt.
Secondly, the creditor can proceed against any individual partner. If he obtains judgment against a certain
partner and this judgment cannot be satisfied out of the private property of that partner, then the creditor
cannot proceed against the remaining partners.

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The creditor must pursue either one course or the oilier. If he pursues the second course described above,
the partner against whom the judgment is obtained will be liable to pay the full amount. He has a right to
call upon the other partners, however, to contribute the shares which they should bear.
Under section 12 of Partnership Act, an infant/ minor partner is not liable for debts and other liabilities
during his infancy as the contract of partnership is voidable at the infant's option during infancy or within
a reasonable time after attaining the age of majority. Under section 13, if an infant partner does not avoid
the agreement during infancy or within a reasonable time after attaining the age of majority he becomes
liable for the debts and liabilities from the date he became a partner.
Unless otherwise agreed, an outgoing partner is only liable for the debts and other liabilities of the firm
upto the date he ceases to be a partner.
Unless otherwise agreed, an incoming partner is liable for debts and other obligations of the firm arising
from date he became a partner.
Under section 18 of Partnership Act, a person who by words spoken or written or by conduct represents
himself as a partner or knowingly permits himself to be represented as a partner and the 3rd Parties rely
upon the representation such a person is Liable to such 3rd parties through the equitable Doctrine of
Estoppel. This was the case in Freeman and Lockeyr v Burkerbust
QUESTION 9
a) i) Distinction between a natural person and a legal person with reference to the law governing
legal personality
- Natural Persons are simply human beings and they are internationally recognized to have and
enjoy the basic human rights and freedom
o There legal capacity shall be determined by their age, sanity of mind and other authority
conferred upon them by the laws of their particular state. They are recognized as persons by
reason of their inherent natural characteristics.
- Legal Persons are persons at law or juristic persons. They are incorporated associations, i.e. an
association of natural persons who come together for a common objective after pursuing
procedures of incorporation e.g. companies.
o Incorporation is the legal process by which a partnership or other form of unincorporated
association is converted to a registered company. It thereupon becomes a legal person in its
own right.
o The most fundamental attribute of incorporation from which all other consequences flow is
that when an association is incorporated it becomes a legal person, separate and distinct
from its members and managers.
o The legal persons have the following characteristics:
- Separate/ distinct legal personality: Upon incorporation, a company becomes separate and
distinct from the cooperators.
- Limited liability: Liability of the members or shareholders is limited to the extent of their shares.
- Perpetual Succession: Its life is not pegged on the life of their human members such as
shareholders and directors.
- Common seal: It executes its transaction under the common seal of such entity although the seal
is undertaken by human members.
- Capacity to sue or be sued in its own name and not of the human members.
- Capacity to borrow or lend by floating charge. (i.e. using any of its assets as security)
ii) Ways in which a legal person can be created

Registration:

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This is a process if incorporation provided by the Companies Act.

It is evidenced by a certificate of Incorporation which is the 'birth certificate' of the corporation.
Corporations created by registration are Public and Private Companies.
Statute:
Acts of parliament often create legal persons known as parastatals or state corporations. The corporation
owes its existence to the Act of Parliament. e.g. KASNEB, KWS
Charter:
Under the Universities Act, when a private university is granted by charter, by the relevant authority it
becomes a legal person of discharging its powers and obligations. e.g. private universities in Kenya.
b) Implied Authority of a partner

In a trading firm the implied authority of a partner has been held to include:
1. Purchasing goods on behalf of the firm.
2. Selling goods for the firm.
3. Receiving payments of the debts due to the firm.
4. Settling accounts with the person dealing with the firm
5. Borrowing money on the credit of the firm.
6. Drawing, accepting, and endorsing bills and other negotiable instrument in the name of
the firm.
7. Employing servants and advocates for the firm.
8. Pledging the goods of the firm for the purpose of borrowing money.

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TOPIC 6
THE LAW OF TORT
QUESTION 1
(a)
(i) Types of trespass on persons:
 Assault - The conduct or.ibrcstto.do.violence.to another in circumstances giving rise to the
apprehension that the person is in real danger.
 Battery - Actual unwarranted striking or hitting of another 0: mere touching in a rude manner.
 False imprisonment - This is the total' restraint of the liberty of a person without lawful excuse.
(ii) Types of trespass on goods:

 Trespass on chattels or goods - This tort consists of interference with goods which arc ill the
actual or constructive possession of the plaintiff.
 Detinue - This is the wrongful withholding of goods of another.
 Conversion - A person entitled to possession of goods can maintain an action for conversion
against anyone acting inconsistently with the right of his ownership.
QUESTION 2
(b) The tort of trespass is divided into the following three trespasses
- Trespass to person - Relates to any direct interference with the person of another, it includes
assault, battery and false imprisonment.
- Trespass to goods - An action for trespass to goods lies where there is wrongful interference with
another person's goods which are in his possession.
- Trespass to land - This is committed by a person who intentionally makes entry into the land of
another, without the authority of the person in possession of that land, or without law
justification.
(c) Defences to the above torts (trespasses)
- Trespass to person: Consent - where the plaintiff consents, his claim will be bad. The consent
must be real.
- Self-defence: Trespass to person is justified if it is committed in reasonable defense.
- Trespass to land:
o Necessity - Defence is available where intentional damage is done In order to prevent a
greater evil.
o Prescription - A plea of a new owner who has acquired land prolonged possession against
the registered owner's action to recover land.
- Trespass to goods.
- Retaking of goods.
- License.
QUESTION 3
(c) Circumstances when the government might be excluded from liability in tort:-
- The government is not liable in respect of anything done or omitted to be done by any person
while discharging responsibilities of a judicial nature
- It is not liable if the government officer was acting outside the scope of his ordinary duties.
- In proceedings against the government, the court cannot make a declaratory order,

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- The government cannot be held liable if it refuses to produce documents on grounds of public
interest
- No claim for tort can be brought against the government after 1 year from the date the cause of
action arose,
QUESTION 4
(a) Five exceptions to the rule in Rylands v. Flctcher.
i) The escape was caused by an act of God.
ii) The escape of the thing was caused by the plaintiff himself. The defendant is not liable since the
plaintiff brought about his own suffering.
iii) The accumulation or bringing of the thing was through the consent of the plaintiff.
iv) Statutory authority: The thing was brought into the land by requirement of an Act of Parliament.
v) Contributory negligence: if the plaintiff was also to blame for the escape.
QUESTION 5
(b) Difference between Libel and slander
Libel Slander
Can give rise to criminal or civil liability Is a civil wrong
Is in permanent form Is in transitory form and is conveyed
speech or gestures
Is actionable without proof of damage Accused is punished if proved guilty
QUESTION 6
c) Distinction between tort and contract
Contract Tort
 In contract, the duties are fixed by the parties  In tort the duties are imposed by law
themselves.
 A contract necessitates privity between the parties.  Privity is not needed an action in tort to
 The duty is owed to definite person or persons maintain an action of tort.
 Damages for breach may be liquidated or  The duty is owed to the community at large
unliquidated  The damages are always unliquidated
d) Two classifications of damages are:

 Ordinary or general damages - These are restricted to the proximate consequences of breach of
contract and remote consequences are not generally regarded.
 Special damages - These do not arise naturally from breach of contract, but are those resulting
from some peculiar circumstances.
 Exemplary damages
 Nominal damages
 Contemptuous damages
 Liquidated
 Unliquidated
QUESTION 7
a) Definition of terms
i. Damnum sine injuria
 Means loss without a infringement of legal right

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 It is loss which does not give rise to an action for damages against the person causing it.
ii. Negligence
 Means the breach of a legal duty of care which results in loss/damage, undesired by the
defendant, to the plaintiff
For a person to succeed in a suit for negligence, he must prove the following;-
 That the defendant owed him a legal duty of care.
 That the defendant breached the duty of care
 That the plaintiff suffered loss/damages.
QUESTION 8
a) Legal principle in this case is strict liability
(Ryland V Fletcher)
Anyone who brings or collects anything on his land which is likely to do harm if it escapes must keep it at
his own risk otherwise he will be liable for the consequences of such an example.
For the rule to apply;
 There must be a non-natural user of the land.
 There must be an escape from the defendant land to a place outside his occupation.
 The plaintiff must have suffered harm.
In this case, Ambrose Mpaka is still liable even if he had employed Mpole, an independent contractor.
(This is under strict liability).
b). Defences available to an occupier sued by a person injured within occupiers premises
 That the accident was due to the negligence of an independent contractor.
 That he had given warning signs.
 That the person was a trespasser.
 That the injured person contributed to the injury.
QUESTION 9
b) i) The rule of res ipsa loquitur
A plaintiff may be relieved of the legal duty of proving the defendant's negligence where the maxim res
ipsa loquitur (the thing speaks for itself) applies. In such cases the negligence of the defendant is
presumed and he must successfully rebut it in order to escape liability for negligence.
Requisites for res ipsa are:
i) The injury must have arisen from the person in control of the thing i.e. the defendant was in
control
ii) There must be no clear explanation as why or how the injury occurred.
iii) The injury could not have arisen had it not been for negligence.
In Byrne v Boadle, the plaintiff brought an action in negligence alleging that, as he was walking past the
defendant's shop, a barrel of flour fell from a window above the shop and injured him. The defendant was
a dealer in flour, but there was no evidence that the defendant or any of his servants were engaged in
lowering the barrel of flour at the time. The defendant submitted that there was no evidence of negligence
to go to the jury, but it was held that the occurrence was in itself evidence of negligence sufficient to
entitle the jury to find for the plaintiff, in the absence of an explanation by the defendant.
The effects of res ipsa are that:

1. It provides prima facie evidence on the part of the defendant
2. It shifts the burden of proof from the plaintiff to the defendant and if the defendant's explanation is
credible the plaintiff loses the case

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ii) Legal principles applicable in the above case and advise the parents of the deceased pupils.
The question concerns negligence on the part of Roy Keen.
He owed the duty of care to road users and breached it. This resulted into injury upon three pupils.
Roy keen failed to see the likelihood of his actions causing injury. The administrators of the estate of Roy
Keen are the legal representatives of the rights of obligation of the deceased. They shall be legally bound
to compensate the parents of the deceased pupils. The death of a wrong doer does not prevent the
aggrieved from claiming compensation.
Meanwhile the administrator or management of the residential estate should have placed speed pumps or
warnings regarding over speeding. They will be liable in contributory negligence if such warning was not
provided.
In summation, and as seen from the above, the parents of the deceased pupils should sue the
administrators of Roy Keen's estate
QUESTION 10
(a)(i) Meaning of the term "defamation"
Defamation is the publication of a statement, which reflects on a person‟s reputation and tends to lower
him in the estimation of right thinking members of society generally, and tend to make them shun or
avoid him.
It has also been defined as a statement calculated to injure the reputation of another person by exposing
him to hatred, contempt or ridicule. Has a tendency to injure him in his office, profession or trade.
Defamation is either by spoken word or gestures (slander) or representation in some permanent form for
example publication in a newspaper, pictorial illustration, sign (libel).
(ii) Mary Kale's legal rights

- Mary Kale has been shunned by her customers.
- She is due to close her business down.
- She has been defamed by Janet Rama and can sue her for a damage that is compensation in
monetary terms.
- In the instant case, the words sent by the message to the effect that Mary Kale was
a witch, uses witchcraft are abusive and defamatory.
- These words are false.
(b) Explain the exception to the general rule that motive is irrelevant in the law of tort for the
purpose of liability
Motive is the mental element or reason for doing something. It has more to do with malice.
- Generally, motive is irrelevant in the law of tort for purposes of liability (Ref: Bradford
Corporation vs. Pickles).
- However, bad motive (malice) is relevant is some instances e.g.
- Nuisance.
- Malicious prosecution.
- Publication of a libel.
- False imprisonment.
- In defamation, the defense of qualified privilege and fair comment are allowed only where the
defendant has not been malicious.
QUESTION 11
a) Legal principles that Judy Naliaka may rely on in her suit against Msafiri transporters in

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reference to vicarious liability in the law of tort

Under the principle the employer is normally held liable for the torts committed by the employee, the
following conditions must be met;
- The employee must be under the contract of employment to work for the employer known as
contract of service.
- The tort must have been committed in the course of performing his employment duties.
- There was control of the employee by the employer during the course of his duties.
- The employer benefits from such duties of the employee and must bear responsibility for such
benefits. The injury was done due to negligence.
It is apparent that Dickson Makanyanga is an employee of Msafiri transporters, and the tort was
committed in the course of his employment. Judy should therefore sue Msafiri transporters for the
tort as they are liable. Msafiri will then compensate Judy and many thereafter seek indemnity from
Makanyanga.
b) In relation to law of tort

i) Defence of volent non-fit injuria
This literally means no injury is done to a willing person. If the alleged negligence is as a result of the
willingness of the plaintiff, the defendant is not liable.
ii) Three defences available for the tort of nuisance.

1. Statutory Authority and Planning Permission
It has long been the case that there is no liability for doing something which Parliament has permitted
(provided is done without negligence).
In Allen v Gulf Oil refinery, the Defendant built a refinery under the Gulf Oil Refinery Act 1965 and the
Claimant complained that it produced noise and vibrations. The House of Lords held that the Act gave
implicit protection against actions in nuisance.
2. Claimant coming to the Nuisance

This defence will apply but only in exceptional circumstances are explained hereunder.
In Miller v Jackson C purchased a house adjacent to a cricket ground where cricket had been played for
72 years. Balls frequently hit the walls of the house or went into the garden some causing damage to the
property. The cricket club erected a fence which was insufficient and offered to place a net over the
garden and install unbreakable glass.
These offers were rejected by the plaintiff who sought an injunction and damages. The court agreed that
the cricket activities amounted to a nuisance even though they had been going on long before the
Claimant moved in but thought an injunction was inappropriate. The court held that there was no defence
of coming to the nuisance as it would be against public policy to allow a nuisance to continue simply
because it had been for a number of years.
However, it was said in Leakey that it may be a defence if the Claimant knows fully that the nuisance is
taking place but still elects to go there and by word or deed demonstrated their willingness to accept it. It
is possible for a valenti non fit injuria defence to apply in nuisance. Thus the best view is that it cannot be
said that the Claimant has consented to the activities unless it is absolutely clear. However, as was
mentioned above, a Claimant can only have the right to expect the enjoyment of property which is
consistent with the locality.
3. Prescriptive rights
It is possible for a nuisance which has been a nuisance for 20 years to have a defence of prescription
under the Prescription Act. This obviously would not be the case if the Claimant moved in less than 20
years ago and the nuisance has been ongoing for less than 20 years.

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TOPIC 7
THE LAW OF CONTRACT
QUESTION 1
(b) Exemption clauses which are null and void:
 Clauses which purport to exclude liability for death.
 Clauses which attempt to exclude the implied condition that the seller has title to the goods.
 Clauses which seek to restrict liability for negligence - will be subjected to reasonableness test.
 Clauses which restrict liability for loss or damage caused by defects in goods or poor quality
service.
 Clauses which purport to avoid liability for personal injury.
 Clauses which are contained in a document signed by the aggrieved party would not be disputed
by the parties.
QUESTION 2
(b) Ten types of contracts which must be evidenced in writing
 Hire purchase agreements.
 Conditional sale agreements.
 Transfer of shares in a registered company.
 An acknowledgement of a debt which has become statute barred under the limitation
of Actions Act.
 An assignment of a copyright.
 Contracts for the sale or other disposition of land.
 Contracts of guarantee.
 Contracts of insurance.
 Contracts for sale of goods above Sh.200.
 Contracts involving payment by way of cheques, bills of exchange and promissory
notes under the Bills of Exchange Act.
QUESTION 3
(a) An agreement does not exist between David Kama and Lotha Muwe because of the following:-
- Acceptance must be in the prescribed form. In this case the offeror clearly stated Lotha Muwe
was to signify his acceptance by calling Nicole Nyambura
- Lotha Muwe did not call Nicole Nyambura but instead wrote to David Kama.
- Where an offeror specifies the manner in which acceptance must be communicated the offeror
must comply
- Acceptance must be communicated to the offeror for an agreement to exist.
- There is therefore no valid agreement or contract as the case may be between David Kama and
Lotha Muwe.
(b) The following conditions are implied in a contract for sale by sample:-
- That the bulk shall correspond with the sample in quality.
- That the buyer shall have a reasonable opportunity to compare the bulk with the sample.

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- That the goods shall be free from any defect rendering them unmerchantable which would be
apparent on reasonable examination of the sample.
(c) Rules governing sale by auction:-
- Where goods are put for sale by auction in lots, each lot is prima facie deemed to be the subject of
a separate contract of sale.
- Knockouts are allowed unless fraudulent
- A sale by auction is complete when the auctioneer announces its completion by the fall of the
hammer, or in other customary manner.
- Where a sale by auction is not notified to be subject to a right to bid on behalf of the seller, it
shall not be lawful for the seller to bid himself or to employ any person to bid at the sale.
- A sale by auction may be notified to be subject to a reserved or upset price and a right to bid may
also be reserved expressly by or on behalf of the seller.
- Notice of the auction
- Goods are sold to the highest bidder
Puffing is considered fraudulent
QUESTION 4
Discuss the exceptions to this doctrine.
i) Third party insurance -Under the Insurance Act, users of motor vehicles should be compensated if
the motor vehicle was being driven by an insured driver or an authorized driver.
ii) Agency- An agency contracts on behalf of the principal. The principal can be sued or sue once a
contract has been entered by the agent.
iii) Trust-There is a relationship between a party that holds property on behalf of the other party
called the beneficiary. The beneficiary can sue or be sued.
iv) Legal assignment- If a creditor assigns another person his debt then the assignee can sue the
debtor as if he was the original creditor.
QUESTION 5
(b) (i) Essential features of an offer
 It must be an expression of the willingness to do or abstain from doing something.
 The expression of willingness must be to another person.
 The expression of willingness must be made with a view to obtaining the assent of the other
person.
(ii) Elements of a valid contract
 Offer and acceptance,
 Intention to create legal relations
 Lawful consideration.
 Capacity of the parties.
 Free consent.
 Lawful object.
 Possibility of performance.
QUESTION 6
(a) Consequences of illegal contracts
 The contract is void.
 Money paid and chattels or land transferred are irrecoverable.
 A subsequent contract which is founded on or springs from an illegal transaction, is illegal and
void.

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 It is legally unenforceable.
QUESTION 7
b) Advise to Lena Zola
 This is a case of discharge of contract by frustration.
 Mariene Kamonya's illness was an unforeseen circumstance which prevented her
from performing her part of the contract.
 Money paid by Lena Zola is recoverable on a quantum merit basis.
 Any further money payable to Mariene Kamonya ceases to be payable.
 Lena Zola can therefore not sue Mariene Kamonya successfully.
QUESTION 8
a) Five exceptions to the general rule that performance must be precise and exact
performance are as follows:
 Divisible contracts: Some contracts are by their nature divisible and performance of a part
thereof entities the performer to payment for work done.
 Substantial performance: If a party has substantially performed its part of the contract it is
entitled to payment for work done whether a contract is substantially performed is a question of
fact.
 Partial performance is accepted; It a party to a contract has expressly or by implication agreed
to pay for partial performance the party performing is entitled to payment for work done.
 Prevented performance: If a party who is ready and willing to perform part of the contact is
prevented from doing so by the others fault such a party is entitled to payment on quantum merit
 Frustration of contract: A contract is frustrated when performance of the obligations become
impossible, illegal or commercially useless by reason of extraneous circumstances for which
neither party is to blame.
QUESTION 9
c) According to the law of contracts the following mistakes render a contract void:
Common mistake
This is a mistake as to the existence or ownership of the subject matter. Each party in the contract
makes the same mistake which means that although each party understands the other's intention both
are mistaken about the same underlying fundamental fact.
Mutual mistake
This is a mistake as to the subject matter of the contract. It arises when parties misunderstand each
other. No agreement arises due to lack of consensus.
Unilateral mistake
This is a mistake as to the identity of one of the parties to the contract. Only one party
is mistaken and the mistake is induced by the other party.
QUESTION 10
(a) Ways in which an offer could collapse
- By revocation
- When not accepted in the prescribed manner
- When not accepted at the prescribed time

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- Counter offer
- Rejection
(b) The following facts must be disclosed

 Those that can influence the other parties‟ decision.
 Changed circumstances which affect the truthfulness of facts already given if the contract has
not yet been entered to.
 Facts likely to increase the liability of the other party.
(c) Legal principles applicable

 Legal principle is discharge of a contract by performance.
 A contract is only discharged if parties precisely perform their obligations in line with the terms
otherwise it will not be discharged.
 However if a person substantially performs the obligations but the workmanship falls short of the
contractual specifications in minor details, such person is entitled to the full contract price less the
amount needed to complete the contract.
In this case Peter is entitled to receive payment for the 8,000 candles.

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TOPIC 8
SALE OF GOODS
QUESTION 1
(a) Exceptions to the nemodat rule:
 Sale under voidable title: When the seller of the goods has a voidable title to them, but his title
has not been avoided at the time of the sale, the buyer acquires a good title.
 Sale by a mercantile agent: A mercantile agent, acting in the ordinary course of business, can
give a good title to the purchaser of goods provided the purchaser receives them in good faith and
without notice of any lien.
 Sale by buyer in possession: Where a. buyer, having bought or agreed to buy goods, obtains
possession or title of the goods with the consent of the seller.
 Sale by seller in possession: Where a seller, after having sold the goods, continues to be in
possession of the goods, or a document of title to the goods, and again sells them or pledges the
same.
 Title by estoppel: In a contract of sale, estoppel may arise where the owner by an act or omission
leads the buyer to believe that the seller has the right to sell.
QUESTION 2
i) Four categories of unascertained goods.
i) Goods to be manufactured by the seller.
ii) Crops to be grown by the seller.
iii) Purely genetic goods.
iv) An unidentified portion of a special bulk or whole.
ii) Rules that govern delivery of goods.
- Whether it is for the seller to transmit the goods to the buyer or for the buyer to take delivery
at the seller‟s premises depends on the agreement between the two.
- Unless otherwise agreed, the cost of and incidental to putting the goods into a deliverable
state is borne by the seller.
- Unless otherwise agreed the place of delivery is the seller‟s place of business if not then his
residence.
- Where specific goods are in some other place known to both parties, that other place isthe
place of delivery
- If the goods are in the hands of a 3rd party, delivery is complete when the 3rd party notifies
the buyer that he holds the goods on his behalf.
- If the seller is bound to transmit, the goods to the buyer, he must do so within the stipulated
time if any or within a reasonable time.
- Delivery by common carrier is Prima Facie complete when the goods are handed over to the
carrier.
- If the seller delivers less goods, the buyer may reject them or accept and pay at the contract
rate
- If the quantity delivered is more, the buyer may reject the goods, or accept those included in
the contract or accept all and pay at the contract rate.
- If the goods delivered are mixed with those of a different description, the buyer may: -
 Reject the goods.
 Accept those included in the contract

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- Unless otherwise agreed, the buyer is not bound to accept delivery by instalment
QUESTION 3
(a) Circumstances when an unpaid seller can exercise the right of resale
 Where the buyer has repudiated the contract.
 When the contract of sale expressly provides.
 If the goods are perishable.
 If the price is not paid within a reasonable time.
QUESTION 4
(c) Legal principle applicable in the case
 Smith Lemaiyan is an undisclosed principal.
 Jimmy Cheney is a third party.
 Since Aggrey Mchuzi (the agent), has contracted/lent money in his own name, he is liable to
jimmy Cheney personally.
 If the third party (Jimmy Cheney) comes to know of the principal before obtaining judgement
against the agent, he may sue either the principal or the agent or both.
 The principal may intervene and sue the third party for- non-performance of the contract.
 If the principal discloses himself before the contract is completed, the third party may
refuse to fulfil the contract, if he can show that he could not have entered into the contract, if he
had known who the principal was.
QUESTION 5
(a) Rules governing the transfer of property in goods
 When there is an unconditional contract for the sale of specific goods in a deliverable, state, the
property passes to the buyer when the contract is made.
 Where there is a contract for the sale of specific goods not in a deliverable state, the property does
not pass until the seller does something to put them in a deliverable state.
 Where there is a contract for the sale of specific goods in a deliverable state, but the seller is bound
to weigh, measure, test or do something with reference to the goods so as to ascertain the price, the
property does not pass until that thing is done and the buyer is notified.
 When the goods are delivered to the buyer on "approval or sale or return" or other similar terms,
the property passes to the buyer when he signifies his approval, or retains the goods without giving
the seller a notice of rejection
 Where there is a contract for the sale of unascertained or future goods by description, the property
in them does not pass until the goods are ascertained.
QUESTION 6
b) Duties of a seller under C.I.F contract
 Pay insurance charges.
 Pay freight charges.
 Ship the goods.
 Supply the shipping document to the buyer
QUESTION 7
a) Doctrine of caveat emptor as used in sale of goods

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 The doctrine of caveat emptor means "buyers beware".

 According to this doctrine, the seller is not bound to disclose any defects in his goods to the buyer
unless specific defects have been asked for. The buyer has the responsibility to inspect goods.
 Where there is a sale by sample, the buyer has a duty to inspect the sample before accepting the
goods.
 The doctrine does not cover the implied conditions in a contract of sale. For example right to sell,
merchantable quality and so on.
 The doctrine covers implied warranties in every contract of sale for example the buyer shall have
quiet possession.
 A buyer who relies on his own skill and makes a bad choice cannot blame the seller
QUESTION 8
a) Two ways through which the sellers right of stoppage is transit could be exercised:
 Taking actual possession of the goods
 Giving notice of the seller's claim to the party in possession or his employer
QUESTION 9
(a) Rules governing the passing of risk in sale of goods contract.
 In an unconditional contract for sale of specific goods in a deliverable state property passes at
time of contract.
 In a contract of sale of goods that are in a deliverable state but the seller has to do something to
determine the price; property does not pass until that thing is done and price is determined.
 In a contract of sale of goods on sale or return basis property passes when goods are accepted by
buyer.
 In a contract of sale of future or unascertained goods, property passes when the goods become
ascertained.
b) Circumstances under which an agent would be allowed to delegate his authourity
 When the principal allows him
 In cases of emergency
 In order to complete performance efficiently
 By trade custom.
c) Effects of subsequent ratification of unauthorized act by the principal
 The principal becomes liable
 The ratification is retrospective and takes effect from the time the agent acted.
 The transaction becomes lawful (authorized).
 The agent is exempted from liability to 3rd parties.
QUESTION 10
a) In relation to the Sale of goods Act
i) Explain the maxim nemo dat quod non habet
- The common law rule of nemo dat quod non habet, literally means one cannot give what he has
not.
- It means that a seller of goods cannot give the buyer thereof a better title than he himself has in
the goods.
- This rule was developed by the common law to protect the interests of the true owners of goods.

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- The rule is now embodies in section 23 (1) of the Sale of Goods Act Cap 31, which provide inter
alia“….where goods are sold by a person who is not the owner thereof and who does not sell
them under the authority or with consent of the owner, the buyer acquires no better title than the
seller had ”
- This rule is best illustrated by the decision in Cundy V. Lindsay and Company Ltd. Where a
person who had acquired goods fraudulently purported to sell them to appellant. It was held that
the apparent had no title in the goods as the fraudulent person had non to pass to him.
ii) Important principles of the above maxim

The principle to protect the interest of the true owner of the goods. It was the case in Cundy v Lindsay &
Co.
The principle of classical conflict between the interests of the owner and the bonafide purchaser which
was enunciated by Lord Denning in Bishopsgate Motor Finance Corporation vs Transport Brakes Ltd
Consequently, if the goods had been obtained by fraud and the seller had a voidable title thereto, the
buyer would acquire a voidable title even if he were not aware of the fraud. If the seller had a valid title,
the buyer would get a valid title.
iii) Exceptions to nemo dat quod non habet

- Estoppels: under section 23 (1) of the Act, if the true owner of the goods, holdout some other
person as owner and third parties deal with the person as owner, the true owner is estopped from
denying the sellers authority to sell and the purchase acquires a good life.
- Sale of factor or Mercantile agent: this is an agent who is entrusted with possession of goods and
who sells in his own name. If a mercantile agent in possession of the principals goods sells them to
a third party in the ordinarily course of business and the third party takes the goods in good faith for
value without notice he acquires a good title.
- Resale by seller is possession: under sec 26(1) of the Sale of Goods Act, if a seller who has
already sold goods but retains their possession resells them to a bonafide purchaser who takes them
in good faith for value without notice, of the previous the sale, he acquires a good title.
- Sale of buyer in possession: under sec 26 (2) of the Act, if a person who has agreed to buy goods
obtain their possession or documents of title before ownership passes to him and as a consequence
he sells to a bonafide purchaser who takes in good faith without notice of the original sellers Lien
he acquires a good title.
- Sale under voidable title: under sec. 24 of the Act, if sellers title is voidable, but he sells the goods
to a bonafide purchaser before the title is avoided and the purchaser takes in good faith for value
without notice of the sellers defective title, the purchases acquires a good title. As was the case in
Phillip V. Brooks.
- Sale under statutory power: A sale made in exercise of a power conferred by statute, passes a
good title. For example:
 Sale by a liquidator under the Companies Act.
 Sale under the Disposal of Uncollected Goods Act.
Sale by a charge or mortgagee under the Registered Land Act.
- Sale under common law power: A sale made in exercise of a power conferred by the common law
passes a good title for example sale by an agent of necessity or by a pledge.
- Sale by court order: A sale made pursuant to an order made by a court of competent jurisdiction
passes a good title
- Sale in Market Overt: market overt means “open, public and legally constituted market.” This the
oldest exception to Nemo dat but does not apply in Kenya. At common law, buyers in market overt
acquired a good title even in relation to stolen goods provided that:
 The buyer took them in good faith without notice of any defect in title and
 The sale took place in public place.

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TOPIC 9
AGENCY
QUESTION 1
(a) Legal principles applicable in the given case:
 An agent must always perform his duties in good faith while working for the principal.
 He must work in the best interest of the principal.
 He must execute his duties with reasonable skill for example looking for the best
price.
 Matende Juma made a secret profit of Sh.50, 000 from Norah Muhonja hence did not act in good
faith.
 He also did not act for the best interests of the principal as he ignored Timothy Kvalo
who offered a higher price for the land.
 Marion Kaveza can sue Matende Juma to recover the secret profit.
 Marion Kaveza can also refuse to pay Matende Juma his remuneration.
 Marion Kaveza can also terminate the agency relationship.
 She can therefore successfully sue.
QUESTION 2
(a) Legal principles applicable
- A banker must not pay cheques without a customer's authority.
- If such payment is made, the bank will be held liable.
- The bank failed to notice that the signature on the cheque was not that of a duly authorised
signatory.
- The bank will be held liable for negligence.
- The bank will be compelled to credit the company's account with Sh.95, 000.
- Jasmin Mrongo and Peter Kraft are also liable to be prosecuted for theft and forgery.
- Catious Company Ltd. Can therefore successfully sue the bank,
- It can also have Jasmin Mrongo and Peter Kraft prosecuted for the offence of stealing by servant.
(b) Consequences of receiving a secret profit by an agent:-
- The agent will be forced to refund the secret profit to the principal.
- He will lose his right to commission/remuneration.
- The principal can repudiate the contract with the third party.
- He can summarily dismiss he agent.
- He can sue the agent for damages.
QUESTION 3
(b) Exceptions to implied agency.-
- Agency by necessity; where the principal was available for contact but was not contacted, he may
repudiate the agency.
- Agency of the wife; where the husband proves that the wife was well supplied with such goods
and he has given notice to the trader.
- There is no authority for a separated wife to pledge the husband's credit
- Agency by estoppel; where the principal gives notice to the outside world that the agent is no
longer working for him.

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QUESTION 4
(b) Instances under which an agent might be held personally liable to third parties.
1. Fictitious person or a non-existent person- If the principal does not exist. For example: When a
promoter makes a contract for a company which has not yet been registered.
2. Unauthorized Acts such as an agent acting beyond the principal's authority
3. Misrepresentation or fraud by agent-An agent is personally responsible if he makes
misrepresentations or frauds acting in course of the business of the principal.
4. Pretended agents -A pretended agent does not have authority. When the other party to the contract
suffers damage, he can sue the agent for breach of warranty of authority. The pretended agent is
liable to pay damages under the Law of Torts. The liability arises even when the agent acted
innocently.
5. Representation as to liability-If a person induces the principal to act on the belief that the agent
only will be held liable, he cannot afterwards hold the principal liable on the contract.
6. Right of person dealing with agent personally liable -In cases where the agent is personally liable,
a person dealing with him may hold either him or his principal, or both of them liable.
QUESTION 5
b) Principles applicable in Joshua Kerabu and Grace Kwambo's case
 An agent has a duty not to allow his interests to conflict with those of the principal
 He also has a duty not to make any secret profit.
 Grace Kwambo is in breach of the above duties as she was the agent and Joshua Kerabu was the
principal
 Joshua Kerabu is entitled to recover the first laptop from Grace Kwarnbo.
 And this would effectively terminate the agency relationship in respect of that
computer and the 5% commission would not be paid.
 Grace Kwambo has made a secret profit on the second laptop.
 Such a breach of her obligation would entitle Joshua Kerabu to terminate the agency relationship
without notice or compensation.
 He would also be entitled to recover the Shs.10,000 undisclosed profit and will not pay Grace
Kwambo compensation
QUESTION 6
b) Ways in which an agency relationship would be terminated by action of the parties
An agency relationship may come to an end by:
- Mutual agreement or consent by both parties to terminate the contract
- Withdrawal of consent by the principal
- Performance of the contract by the agent
- Bankruptcy of the principal
- Death of either the principal or the agent
- Insanity of the principal

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TOPIC 10
HIRE PURCHASE
QUESTION 1
(a) Provisions governing termination of hire purchase agreement by the hirer:
 The hirer may terminate the agreement at any time before the final payment becomes due.
 He may do so by returning the goods to the owner.
 By giving the owner written notice of termination of the agreement.
 He is, however, liable to pay all instalments due by that time, together with the sum, if any, as will
make his total payment not less than half of the total purchase price, unless a lesser sum is specified
in the agreement.
 He will also pay damages if he has failed to take reasonable care of the goods.
 He must return the goods at his own expense to the premises of the owner, or to premises directed
by the owner but at the owner's expense.
QUESTION 2
(a) Consequences of contravening the two-thirds rule:-
- The hire-purchase agreement if not previously terminated shall terminate.
- The hirer shall be released from all liability under the agreement and shall be entitled to recover
from the owner by suit all sums paid.
- A hirer shall be entitled to recover from the owner by suit all sums paid by him
QUESTION 3
(a) Describe five duties of the owner of goods in a hire purchase agreement.
1. Notification of Cash Price: The owner has to notify the hirer of the cash price of the goods in a
prescribed form.
2. Disclosure of defects: The owner is bound to disclose to the hirer any defects in the goods or in
his title.
3. Deliver the goods: It is the duty of the owner to deliver to the hirer goods which constitute the
subject matter of the hire-purchase agreement
4. Indemnity: The owner is bound to indemnify or compensate the hirer for any loss or liability
arising by reason of any defect in the goods or in the owner‟s title.
QUESTION 4
b) Legal principles that are applicable
 Property in a hire purchase contract does not pass until the hirer has paid the final instalment, and
 Exercise the option to purchase the goods.
 Therefore under the doctrine of nemo dat, Ben Moses has no title to pass to lsaby.
 The title of the car is still in the name of Arizona Motors Ltd. until Ben Moses pays the last
instalment.
 lsaby is a stranger to the hire purchase contract between Ben Moses and Arizona Motors Ltd.
under the doctrine of privity of contract.
 Isaby cannot successfully sue Ben Moses for the recovery of the car.

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QUESTION 5
a) The following information must be contained in a written memorandum of hire purchase:
 A statement of the hire-purchase price and the cash price of the goods to which the agreement
relates.
 The amount and the dates of payment of each installment.
 A notice setting out the hirer's right under the contract.
 A copy of the contract that must be sent to the hirer within twenty one days of execution.
 Names of the parties.
QUESTION 6
(a) Meaning of hire purchase agreement
Hire purchase is a method of buying goods in which the purchaser takes possession as soon as he has
paid an initial installment of the price, that is, deposit and obtains ownership when he has paid all
instalments.
(b) Effects of non-registration of a hire purchase agreement

 The agreement becomes void
 The owner cannot enforce his rights against the hirer.
 The owner is liable to return all the money paid back to hirer.
 Any contract of guarantee relating to the hire purchase agreement is also unenforceable
QUESTION 7
a) Instances when merchantability may be dispensed with
i) Where the defect complained of is one which the owner could not reasonably have been aware
of at the time of the agreement.
ii) Where the hirer examined the goods or a sample thereof and the examination revealed or ought
to have revealed such defects.
QUESTION 8
(a) (i) Explain the term hire "purchase"
Hire purchase is a method of buying goods in which the purchaser takes possession as soon as he has paid
an initial installment of the price, that is, deposit and obtains ownership when he has paid all instalments.
- Presentment must be made by the holder or by some person authorized to receive
payment on his behalf.
- Presentment must be made at a reasonable hour on a business day at the proper place.
- Presentment must be made either to the person named in the bill as the payer or to some person
authorized to payer to refuse payment on his behalf.
- A bill must be presented at the proper place as specified in the bill or at the address of the drawee
or acceptor.
- Where the bill is presented for payment at the proper place and no person authorised to payor
refuse payment is found, no further presented to the drawee or acceptor is required.
- If a bill is drawn upon or accepted by two or more persons who are not partners, and no place of
payment is specified the bill must be presented to them all.
(ii) Legal principle applicable in this case and advice to Nuru Kara.

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Where the hirer has paid more than 2/3 of the hire purchase price, the owner cannot repossess the
goods without government order.
- Nuru Kara has paid 8/10 and therefore repossession was illegal.
- Owner Hire Purchase Company should return the goods otherwise Nura Kara can sue for an order
of return.
- There is clear violation of the law as a court order for the repossession had not been issued.
The world’s problems are not merely

the result of clash of material
conceptions only; they are produced
by the powers of Satan fighting
against the power of God and the
only way to deal with these problems
is spiritual.
Lloyd Jones.

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TOPIC 11
INSURANCE
QUESTION 1
(b)
(i) Maritime perils means the perils consequent on or incident to the navigation of the sea; that is to say,
perils of the seas, fire, war, pirates, rovers, thieves, captures and seizures.
(ii) Matters that a marine insurance policy must specify:
 The name of the assured or of some person who effects the insurance on his behalf.
 The subject matter insured and the risk insured against.
 The sum or sums insured.
 The name or names of the insurers.
QUESTION 2
Legal principles in Beatie Osolika's Case:-
- Insurance contracts are contracts of utmost good faith,
- The insured must faithfully disclose all facts known to her/him so that the insurer can decide
whether to insure or not.
- Beatie Osolika committed fraudulent misrepresentation when he lied about his pregnancy status
- Misrepresentation does not render the contract void but the party misled will be able to avoid
liability on the contract by proving that the misrepresentation was of a material fact.
- Hope Insurance Company can escape liability by relying on misrepresentation of Beatie Osolika's
health status which misled them to enter into the insurance contract.
- The medical cover was based on fidelity/utmost good faith (as a fundamental fact).
- Beatie Osolika cannot successfully sue.
QUESTION 3
i) "Marine insurance".
Marine insurance is insurance that covers the loss or damage of ships, cargo, terminals, and any
transport or cargo by which property is transferred, acquired, or held between the points of origin
and final destination.
ii) Four types of marine insurance policies.
The major types of marine insurance policies are:
1. Time policy
A time policy is taken for definite period of time, usually not exceeding 12 months say from
January 1, 1981 to December 31, 1981. This policy is most suitable for hull insurance.
2. Voyage policy
Where the subject matter is insured for a specific voyage.
3. Mixed policy
This policy is the combination of time and voyage policy. It, therefore, covers the risks for both
particular voyage and for a stated period of time.
4. Floating policy
Floating policy is taken for a relatively large sum by the regular suppliers of goods. It covers
several shipments which are declared afterwards along with other particulars. This policy is
most situated to exporter in order to avoid trouble of taking out a separate policy for every
shipment.

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5. Valued policy
Under its terms the agreed value of the subject matter of insurance is mentioned in the policy
itself. In case of cargo this value means the cost of goods plus freight and shipping charges plus
10% to 15% margin for anticipated profit. The said value may be more than the actual value of
goods.
QUESTION 4
(c) (i) Definition of Burglary insurance
Is a contract to indemnity the insured against loss arising from burglary.

(ii) Type of insurance available and classes of policies available in that insurance
The type of insurance available to Jane Kioi is Marine Insurance.
Policies under Marine Insurance include:
 Mixed policy
 Time policy
 Voyage, policy
QUESTION 5
(a) Distinction between a contract of insurance and a wagering contract
 A wagering contract is not legally enforceable (void) but an insurance contract is.
 A contract of insurance indemnifies against loss, or the payment of a specified sum upon the
happening of a certain event while wagering is the staking of something of value upon the
ascertainment of the truth concerning a past or future event where each party must stand either to
win or lose.
 The stake is the only interest of the parties in the wagering contract while the assured must have
an insurable' interest in the subject matter of a contract of insurance.
 In wagering contracts, the premiums cannot be recovered while in insurance contracts, the
premiums are recoverable.
QUESTION 6
b) Difference between reinsurance and double insurance
1. Whereas reinsurance refers to the spread of risk among insurance companies, whereby an
insurance company that finds that it has entered into a contract which is a very expensive
proposition, relieves itself by insuring part or whole of the subject matter with another insurer.
Double insurance arises when a person effects more than one insurance with different insurers
on the same risk and interest, and the sums assured exceed the value of the property insured.
2. Difference between insurance and assurance

Whereas insurance is generally a contract of indemnify against a contingency.
The Insurer assumes the risk of the contingency in payment of a premium, so that the insured,
who suffers the damage, will be compensated from a common insurance fund.
Assurance is a contract which guarantees payment of a sum on the happening of a specified event
which must happen sooner or later.

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c) Categories of insurance covers:

Life assurance
This is a contract whereby the insurer, in consideration of payment of premium undertakes to pay to
the person for whose benefit the insurance is made a certain sum of money or annuity or death of the
person whose life is insured.
Fire insurance
This is a contract by which the insurer or underwriter undertakes to indemnify the other against any
loss or damage caused to the property insured in the event of fire.
Marine insurance
This is a contract whereby the insurer undertakes to indemnify the insured against loss arising from
certain perils and sea-risks.
Burglary insurance
Burglary insurance is a contract to indemnify the insured against loss arising from burglary
Accident insurance
Motor vehicle insurance
QUESTION 7
(c)
 The legal principle is double insurance.
 This is when the insured takes up insurance policy for the same subject matter and same risk with
two or more insurers.
 In the event of loss he can either get compensation from one insurer or from both of them but on
a prorata basis a total amount not exceeding the value of the loss because contract of insurance
are contracts of indemnity.
 In this case Jipapa can either get sh. 5 million from either of the companies or get sh. 2.5 m from
each of them.
QUESTION 8
a) Describe six classes of persons who are deemed to have an insurable interest in a subject
matter of insurance.
- A person has an unlimited interest in his own life.
- A man has an unlimited interest in the life of his wife: Griffiths vs. Fleming
- A woman has an unlimited interest in life of her husband: Reed vs. Royal exchange assurance Co
- A lady has an insurable interest in the life of her fiancée, for his contract to marry her is recognized
by the common law as having pecuniary value, and the remedy for breach of promise to marry is in
damages. Similarly, a man has an insurable interest in the life of his fiancée.
- A child has an insurable interest in the life of his supporting father
- A creditor has an insurable interest in the life of the debtor to the extent of the debt: Godsall vs.
Boldero.
- A master has an insurable interest in the life of his servant to the extent of the value of the services

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agreed to be rendered: Simcock v Scottish Imperial Insurance Co.

- A servant has an insurable interest in the life of his master to the extent of his remuneration for the
agreed period of service
- A partner has insurable interest in the life of other partners. ( Beauford vs. Saunders)
- A surety has insurable interest in the life of his co-sureties.
QUESTION 9
b) Principles of insurance
Insurable Interest
This is the financial or monetary interest at stake or in danger if the subject matter is not insured. It is the
interest a person has in the subject matter which he stands to lose in the event of its loss or destruction. At
a general level this means that the party to the insurance contract who is the insured or policy holder must
have a particular relationship with the subject matter with the insurance whether that be, "a life or
property or a liability to which he might be exposed" Every contract of insurance contract requires an
insurable interest to support it, otherwise it is invalid.
1. Disclosure/utmost good faith

The duty to disclose exists throughout the negotiation period. It generally comes to an end when the
proposal form is accepted. It was so held in Lishman V Northern Marine Insurance Co. The non-
disclosure of a material fact by either partly renders the contract voidable at the option of the innocent
party. In London Assurance Company V Mansel (1819) it was held that the contract was voidable at the
option of the insurer for the concealment of material fact
2. Indemnity
This principle means that when loss occurs, it is the duty of the insurer to restore the insured to the
position he was before the loss. The insurer must so far as money can do; put the insured to the position
he was before the loss.
Indemnity means that there should be no more or no less than restitutio in integrum.
In the words of Brett L.J in Caste/lain v. Preston,
"The insured is to be fully indemnified but is never to be more than fully indemnified".
The principle of indemnity ensures that it is the duty of the insurer to ascertain whether there are
circumstances which reduce, diminish or extinguish the loss as they have a similar effect on the amount
payable by the insurer for the loss.
3. Subrogation
This means that after the insurer has indemnified the insured, he steps into the shoes of the insured in
relation to the subject matter. It means that after indemnity the insurer becomes entitled to all the legal
and equitable rights respect the subject matter previously exercisable by the insured. Subrogation
facilitates indemnity by ensuring that the insured does not benefit from the contract. It is an inherent and
latent characteristic of the contract of indemnity that becomes operative after full indemnity. The insurer
cannot under subrogate rights recover more than the amount payable as indemnity as was the case in
Yorkshire Insurance company Ltd. v. Nisbett Shipping Co.
4. Salvage
This is the recovery by the insurer of the remains of the subject matter after indemnity. It is part of
subrogation and facilities indemnity. It is justified on the premise that the amount paid by the insurer as
indemnity includes the value of the remains.
5. Re-instatement
This is the repair or replacement of the subject matter in circumstances in which it may be re-instated.

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Most indemnity policies confer upon the insurer an option to pay full indemnity or re-instate the subject
matter. The insurer must exercise his option within a reasonable time of notification of loss and is bound
by his option. If the insurer opts to re-instate, the subject matter must be re-instated to the satisfaction of
the insured. Any loss or liability arising in the course of re-instatement is borne by the insurer. The
economic effect of re-instatement is to benefit the insurer by ensuring that he only pays full indemnity
where the re-instatement is not possible.
6. Double insurance
This is a situation whereby a party takes out more than one policy on the same subject matter and risk
with different insurers but where the total sum insured exceeds the value of the subject matter.
7. Contribution and apportionment

If an insured has taken out more than one policy on the same subject matter and risk with different
insurers and loss occurs, the twin principles of contribution and appointment apply:-
a) If the insured claims from all the companies at the same time, they apportion the loss between
themselves on the basis of the sums insured. Each insurer bears part of the loss. This is the "Principle
of Apportionment"
b) If one of the insurers makes good the total liability to the insured, such insurer is entitled to recover
the excess payment from the other insurers. This is the "Principle of Contribution". This principle is
to the effect that an insurer who has paid more than his lawful share of the loss is entitled to receive
the excess from the other insurer.
8. Abandonment
This is the surrender by the insured of the remains of the subject matter for full indemnity. It entails the
giving up the res (residue) to the insurer for indemnity. This principle has its widest application in Marine
Insurance but generally applies in case of:-
The principle of contribution is equitable. An insurer is only entitled to contribution if the following
conditions exist.
i. There must have been more than one policy on the same subject matter and risk.
ii. The policies must have been taken out by or on behalf of the same person
iii. The policies must have been issued by different insurers
iv. The policies must have all been in force when loss occurs
v. All the policies must have been legally binding agreements
vi. None of the policies must have exempted itself from contribution.
The twin principles of contribution and apportionment facilitate indemnity.

1.Partial loss
2.Constructive total loss.
The insured must notify the insurer of his intention to abandon the subject matter. However, it is for the
insurer to determine whether or not abandonment is applicable. If the insurer opts to pay full indemnity, it
signifies the sufficiency of the insured's notice and it is an admission of liability. The insurer becomes
entitled to the remains of the subject matter.
9. Proximate cause
An insurer is only liable where loss is proximately caused by an insured risk and not liable where the risk
is expected.
The principle of proximate cause protects the insurer from undue liability. Under this principle, the
proximate and not the remote cause is to be looked into. (Causa proxima non remota spectatur}

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The proximate cause of an event is the cause to which the event is attributable. It is the cause which is
more dominant direct, operative and efficient in giving rise to the event.
Courts have not developed any technical test of ascertaining what the proximate cause of an event is.
They rely on common place tests of the reasonable man and that among competing causes, one must be
more dominant that the rest.
The proximate cause need not be the last on the chain but must be the must operative in occasioning the
loss.
10. Average clause.

This is a clause in an insurance policy to the effect that if the subject matter is under insured and partial
less occurs, the insurer is only liable for a proportion of the loss and where loss is minimal the insurer
liability is extinguished. This clause ensures that subject matter is insured at its correct value.
Listen to the words of the wise

(consent and submit) to the words of
the wise and apply your mind to
knowledge.
Proverbs 22.

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TOPIC 12
NEGOTIABLE INSTRUMENTS
QUESTION 1
(c) Essentials of a valid bill of exchange:
 It must be in writing - A bill of exchange cannot be oral.
 It must contain an express order to pay - This feature of a bill of exchange
distinguishes it from a promissory note.
 The order to pay must be unconditional - The order to pay should not depend upon a
condition.
 It must contain certain parties;-all three must be certain.
 It must be signed by the drawer - The instrument will be complete only when it is
signed by the drawer.
QUESTION 2
(b) Requirements of a promissory note.
1. It is an unconditional written promise made by a person to another
2. It must be signed by the maker
3. It contains a promise to pay a sum certain in money.
4. The sum is payable on demand or at a fixed or determinable future time.
5. The sum is payable to a specified person, his order or the bearer.
(c) Highlight six ways in which a bill of exchange might be discharged.

i) Payment in due course
Payment in due course means payment made at or after the maturity of the bill to the holder thereof in
good faith and without notice that his title to the bill is defective.
ii) When Acceptor becomes holder at maturity (Merger)
When the acceptor becomes the holder of it at or after its maturity, in his own right the bill is discharged.
iii) Express Waive/ Renunciation
A bill is discharged if at or after its maturity the holder expressly and absolutely renounces his rights
against the acceptor either in writing or by delivering the bill to him.
iv) Cancellation
A bill is discharged by an apparent intentional cancellation by the holder or his agent.
Cancellation is effective only if it is obvious. Where a bill which has been torn into two pieces and is
picked up and mended, a holder in due course who takes it in good faith can enforce it.
v) Material alteration
Where a bill is materially altered without the assent of all parties liable on the bill, the bill is avoided,
except as against a party who has him made, authorized or assented to the alteration and subsequent
endorsers. If alteration is not apparent a holder in due course may endorse payment of the bill according
to his original tenor. Material alteration is an alteration of:-
i) the date of payment
ii) the sum payable
iii) the place of payment and consent of the acceptor
iv) where the bill has been accepted generally, the addition of a place of payment without the consent
of the acceptor

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QUESTION 3
b) (i) Order bills
Is payable to order which is expressed to be so payable and does not indicate an intention that it
should not be transferable.
(ii) Bearer bills
Payable to bearer which is expressed to be so payable; the payee is a fictitious or non-existing
person.
QUESTION 4
i) Definition of qualified acceptance
 A qualified acceptance is one whereby some qualification is introduced.
ii) Forms of qualified acceptance

 Partial acceptance where the drawee undertakes to honour only part of the sum ordered to be
paid.
 Local acceptance - involves the place where the bill must be honoured.
 Qualification as to time - where the drawee attempts to extend the time for acceptance and
payment.
 Conditional acceptance -where the drawee inserts some condition about the charges, costs and so
on in connection with the bill.
 Failure of one drawee to sign - where one of the drawees named refuses or fails to sign the bill, if
the holder agrees to accept the signatures of the others, it amounts to qualified acceptance.
QUESTION 5
(a) Promissory note is an unconditional note in writing undertaking to pay a sum certain in money to
the specified person.
(b) Characteristics of negotiable instruments
 No notice of transfer needs to be given.
 Consideration is always assumed to have been given.
 If made payable to bearer it is negotiable by mere delivery but if payable on order is
negotiable by delivery and endorsement.
 It‟s not affected by the doctrine of privity to contract.
 Transferee acquires title if he takes it in good faith and for value.
QUESTION 6
c) Uses of bill of exchange
- A bill of exchange provides a creditor with a better remedy, because, once it has been issued
(or accepted where applicable) it settles the amount of the debt owing and makes a legal remedy
easier to obtain than would have been the case under an ordinary contract. For example, there is
no need to explain the terms of the contract which creates the debt.
- A bill of exchange may be discounted. Thus anybody who holds the instrument, and is entitled
to claim the money on due date; can discount it by taking it to a bank or discounting house. The
bank will in many cases, be willing to take the instrument off the holder's hands, pay him the
agreed value and collect the money when due.
- A bill of exchange can be negotiated. Anyone who holds a negotiable instrument, such as a bill
of exchange, can transfer it to a creditor in payment and the payee could, if he chose, use it in this
manner to settle his debt with another party.

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QUESTION 7
(b) Rules governing presentment of bill of exchange
- A bill must be presented for payment in order to make the drawer and endorsees liable on it.
Presentment is made by exhibiting the bill to the person from whom the holder
demands payment and when the bill is duly paid the holder must deliver it up to the
party paying it.
- When the bill is not payable on demand, presentment must be made on the day it falls due.
- When the bill is payable on demand, presentment for payment must be made within a reasonable
time after its issue in order to render the drawer liable.
“Many persons think a great deal about the

adorning of the body, but do not think
anything about the ornaments of the soul.
The feeding of the physical frame engrosses
much care, but the supply of spiritual food
is often neglected.”
Spurgeon.

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TOPIC 13
THE LAW OF PROPERTY
QUESTION 1
(c) Literary works that could be protected by the copy right law
- Novels, stories and poetic works
- Plays, stage directions, film scenarios and broadcasting scripts.
- Textbooks, treatises, histories, biographies, essays and articles.
- Encyclopaedias and dictionaries.
- Letters, reports and memoranda.
- Lectures, addresses and sermons.
- Charts and tables.
- Computer programs.
QUESTION 2
(c) Advantages of registering an invention:-
- To protect one's invention from piracy.
- To reward the creative effort of the inventor.
- Acts as an incentive to innovation and increased economic activity.
- Acts as a means of informing other players in the industry about the latest technical advances.
- Recognition of the inventor
- Creation of secondary rights
QUESTION 3
(b) In relation to the law of property, distinguish between the following terms:
i) Ownership and possession.
Possession refers to physical detention coupled with the intention to hold the things detained as one's
own. It refers to having custody of a thing coupled with the intention to exercise exclusive control over it.
Possession is the prima facie evidence of ownership.
Ownership is a matter of law and it denotes the relation between a person and the object forming the
subject matter of his ownership. A person is the owner of property if he has the ultimate right over its use
and disposal.
ii) Fee simple and leasehold.

Leasehold
This is a secondary interest in land derived from a primary interest. This interest confers upon others
subsidiary powers. The grant, with or without consideration, by the proprietor of land of the right to the
exclusive possession of his land, and includes the right so granted and the instrument granting it, and also
includes a sub-lease but does not include an agreement for lease.
Fee simple
This is the greatest estate in land which may be held. The interest in the estate here continues as long as
the tenant or any of his heirs survives. Here, the duration of the estate is fixed to the life of the tenant and
his heirs. If no heirs exist, it reverts to the state. The word „Fees‟ denoted that the estate could be inherited
while “Simple” meant and denoted those who could inherit the estate.

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QUESTION 4
(b) Infringement of copyright
 Piracy
 Photocopying
 Plagiarism
 Copying of song/music
QUESTION 5
c) Three interests in land created by law are:
 Rent charges: A rent charge is rent payable from land by a tenant to some other person but not the
landlord.
 Land tax;- Land tax and other similar charges on land created by an instrument
 Rights of entry: Rights of entry are exercisable over or in respect of a legal charge.
 A charge by way of legal mortgage.
 Easements and profits a prendre.
QUESTION 6
(a) (i) Servitudes
These are rights in alieno solo i.e. rights conferring a power over another person‟s estate for the
benefit of the right holder or of his estate.
(ii) Characteristics of easements
- Can be created by grant or statute.
- Cannot be revoked at the will of grantor if created by statute.
- They confer a right on another‟s land.
- There must be a dominant and servient tenement.
- The easement must accommodate the dorminant tenement.
- The dorminant and servient tenements must be owned or occupied by different persons.
- The easement must be capable of forming the subject matter of the grant e.g. there must be a
capable grantor or grantee.
QUESTION 7
a) Distinguish between tenure and estate in relation to the Law of property
Both relate to interests on land.
Tenure estate
i. Tenure concerns the way in which i. Estate is an interest in land in terms of
land is held a defined duration
ii. The doctrine of tenure stipulates that ii. The doctrine stipulates that a citizen
land is actually owned by the state and cannot own land but simply an estate
held by the citizens as tenants in it.
b) Objectives of registering patents.

- A registered patent protects how your product and business works.
- An inventor is awarded a patent which gives him certain exclusive rights which prevent others
from using the patented invention.
- Registration of design protects how your business product looks.

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- Patents give statutory expression to the moral and economic rights of creators in their creations
and such rights of public in access to those creations.
- Registration of patents promotes creativity and dissemination of its result and encourages fair
trading.
QUESTION 8
(a) Characteristics of copyright
- Copyright is property right which gives a range of exclusive rights in relation to the copyright
work.
- The effect of copyright is to enable the owner to prevent others from using it.
- Copyright protection is accorded to work.
- Copyright arises automatically without the need for registration or other formality.
- Copyright confers protection, raises presumption of authorship and seeks as a reminder of the
rights of the copyright owner and a warning against infringement.
(b) The legal remedies of a mortgagee against a defaulting mortgagor
- Sale
The mortgaged property can be sold and the proceeds used to clear the outstanding amount in the
mortgage
- Appoint a receiver
A receiver can be appointed to manage the property and the income received applied to clear the
arrears and installments that fall due.
- Foreclosure
A court can give orders to deny the mortgagor a right to redeem his property.
- Possession of the mortgaged property and manage it to realize income to use to pay the arrears or
installments due.
- Sue
The debtor can be sued on the personal liability for breach of the covenant.
QUESTION 9
a) Contents of a standard lease agreement
- Details of the lessor and lessee, and their addresses
- Details of property leased - its location and identification
- Declaration by the lessor that he is either the owner of the property or is duly authorized by the
owner to enjoy the property on lease
- The effective date of commencement of the rent agreement and the duration
- Term of the lease
- The lease rent and the mode of payment
- Security deposit amount paid, whether it is interest-free or not, and the circumstances when it is
refundable
- Advance rent payable, if any, and the mode of its adjustment
- Rent escalation clause - when can the rent be increased and at what rates
- Who will bear the routine repair and maintenance expenses - both for minor and major repairs
and what exactly are minor and major repairs
- Whether the fixtures and fittings would be provided by the lessor
- What are the grounds for termination of the agreement
- Notice period required for termination of the lease
- Renewable clauses

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INTRODUCTION TO LAW AND

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(c) With reference to international law:

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With reference to the above statement discuss five equitable remedies.

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enjoyment of fundamental rights by individuals.

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O taste and see that the

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(b) Describe three conditions implied in a contract for sale by sample.

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Advise Lena Zola.

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Discuss the effects of subsequent

No created thing can act

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Joshua Kerabu has come to learn about Grace Kwambo's dealings.

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Explain three consequences of contravention of the above provision by the owner.

Outline two of the instances when merchantability may be dispensed with.

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Insurance Company Limited for a similar amount.

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