LAW

TOPIC 1: INTRODUCTION TO LAW

Law is defined as rules and regulations imposed by the state or a community aimed to shape the
conduct and characters of individuals and is enforced by imposition of penalties

Characteristics of law

I. Law is a body of rules

II. Law is for guidance of human conduct
III. Law is imposed
IV. Law is enforced

Classifications of law

1. Criminal law vs civil law

Criminal law is characterized by certain kinds of wrongdoings as offences against the state
Eg murder, drug trafficking
Civil law is primarily concerned with the rights and duties of individuals towards each other eg
law of contracts, law of tort, law of property, law of succession
2. Public law vs private law
Public law is law that governs individuals and state eg constitutional law, administrative law and
criminal law
Private law is the law that governs individual relations eg law of tort
3. Substantive and procedural law
Substantive law includes the rules of law, civil or criminal defining a civil wrong or a criminal
offence eg murder or crime
Procedural law lays down the rules governing the manner in which a right is enforced under civil
law or a crime prosecuted under the criminal law
4. Public international and private international law
Public international law includes those rules of law which govern the relation within a state eg
trade law, civil law, criminal law etc
Private international law includes systems of rules between different states eg immigration law,
terrorism law
Sources of law
Constitution
Act of parliament
Judge made law
Customary law
Holy books (bibles and quorans)
International treaties

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 STRRUCTURE AND JURISDICTION OF KENYAN COURTS

HIERATCHY OF KENYAN COURTS

SUPREME COURT

COURT OF APPEAL

HIGH COURT

MAGISTRATE KADHIS COURT COURT MAGISTRATE

RESIDENTIAL
COURT 1ST MARTIAL COURT 2ND
COURT
CLASS CLASS

MAGITRATE
COURT 3RD CLASS

JURISDICTION OF COURTS

Jurisdiction is the legal power of court to make a decision and judgement to a case

Its of 2 kinds:

1. Original jurisdiction: court power to hear a case and make final decision and judgement without
any appellate review
2. Appellate jurisdiction: is a court power to hear a case and appeal it to another level for the final
judgement

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  Research on functions and constituents of Kenyan courts

TOPIC 2: LAW OF TORT

Refers to the set of rule and obligations that provide remedy to individuals who have
injuries and harm by the wrongful acts of the other
Plaintiff is the individual who suffers injuries and he’s the one to decide to take an action
or not
Tort feasor/ defendant is individual who inflicts injuries to the other and he may face
jury for his wrongful acts committed to provide defenses
Dignitary tortious acts
1. Trespass-is the unlawful intrusion into someone’s property or affairs
its of 3 kinds:
a) trespass to persons-is intrusion of someone’s private matters and affair
b) trespass to land- it may be in form of entity on land of another, remaining on
the land may be after expiration of a lease or pacing(dispossession) or throwing
objects materials to the land of another
c) trespass to goods or property- is the intentional or negligent interference with
the possession of goods of another
trespass to property takes 2 forms:
 Detinue-is the wrongful detention of goods of another to the immediate
possession of which that other is entitled. Takes place in lease terms where
the defendant remains to possess the plaintiff’s property even after
expiration of the lease
 Conversion- here the defendant merely denies the plaintiff the entitlement
of his property or goods
Defenses to trespass
 Self-defense- its lawful for the defendant to provide defense for trespass to
a person
 Apology- defendant may ask for the forgiveness of his/her conduct
 Justification- he may defend by outline valid reasons that amounted to the
trespass committed
Remedies to trespass
 Damages- here the defendant will be ordered to compensate the plaintiff
the value of the property diminished as a result for trespass not the cost of
reinstatements
 Injunction- may be used to prevent continuance or repetition of the act of
trespass
 Ejection- the plaintiff who is the occupier of the land by dispossession may
be ejected by requesting him peacefully first and forcefully when he ignores
the 1st notice
2. Nuisance- is the interference of person’s enjoyment

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 Is categorized into 2:
Public nuisance- is the unlawful act or omission which endangers or interferes with
the life, safety or comfort of the public generally eg keeping a brothel, obstruction
of public highway or setting up a factory which emits excessive smoke, fumes, dirt or
noise
Private nuisance- is an unlawful interference with a man’s use of his property or
with health, comfort or convenience. Is categorized into;
 Interference with the enjoyment of the property generally
 Injuries to servitudes and easement

Defenses to nuisance

 Statutory authority- is the defense to show that the statute authorizes

the act
 Triviality- defendant may prove that the act committed is so minimal or
trivial
 Lawful use of the property-may prove the lawful use of the land
 Reasonableness- he may prove the act or omission to be reasonable
having regard to the locality concerned

Remedies to nuisance

 Abatement- it means self-help where by the injured party may stop the
nuisance by removing the cause
 Damages- is the ordinary common law remedy where by the plaintiff is
compensated for the incurred as a result for nuisance
 Injunction- is a court order to restrain further acts

3. Negligence- is the intentional, voluntary or accidental refusal to exercise your

duty and responsibility. It can be normal negligence or contributory negligence.
Contributory negligence is where the defendant could escape liability by
showing that the accident would not have happened had not the plaintiff
contributed to it by his own negligence

Defenses to negligence

 Justification- defendant could give valid reasons to his negligence act

 Volenti non-fit injuria- this a defense for contributory negligence where
it states that there is no injury to a willing person who has voluntarily
consented to the commission of a tort
 Mistake- the general rule is that a mistake either of law or of fact is of
no defense to tort.

Remedies to negligence

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  Abatement
 Injunction
 Damages
 Imprisonment

4. defamation- is a false statement about someone to his discredit

It is of 2 classes;

Libel-is a statement made in a permanent form ie written or published, an

effigy (ugly statute), a caricature or a film

Slander- is a statement in a transitory form ie its temporal and continues for

a short time. It’s usually by speech or gesture

Proof for defamation

Proof that the statement was defamatory- the statement should be direct
not indirect. Indirect statements are called innuendos

Proof the statement referred to him-the statement should be specific of the

identity of the defendant

Proof of the statement- there should be a publication or evidence for libel

and a recording or a witness to slander deformation. Note that repetition
and dissemination of defamatory statement is of no defense but the original
statement is

Proof for damages suffered- damages suffered for defamatory statement

should also be outlined for the plaintiff to win the case

Defenses for defamation

Justification-it’s a good defense to plead that the alleged defamatory

statement is substantially true even though some detail may be untrue

Fair comment- this defense is only restricted on matters of public interest to

allow the judge to decide on the individual case

Privilege- this defense protects certain defamatory statements from action

at law on grounds of public policy. The free expression of opinion and facts
in parliament is so important to our democratic way of life that this freedom
override any private right or interest of the person defamed.

Apology- a defendant in action for libel or slander may plead for an apology
for his action

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 Offers of amends- this defense is only available if when the defamatory
statements are published innocently

Remedies of defamation

Injunction

Damages

5. assault- is an attempt or threat to apply unlawful force to a person of

another whereby that other person is put to fear of violence eg murder,
rape or flogging etc

6. battery tort- is applying a slight force hostilely or against his will e.g
spitting at someone face, removing a chair under him, throwing water to
him or throwing fire wax to someone. This tort is considered to be trivial
and it can only be sued if accompanied by assault

General defense in tort

 Volenti non-fit injuria

 Mistake
 Necessity- in some case damages done intentionally may be excused
if done from necessity whereby maybe the defendant was
compelled by a circumstance to prevent a greater evil
 Inevitable accident- this means some happenings which cannot be
avoided by the taking of an ordinary precaution
 Statutory authority
 Self-defense

Tort liability

Is where different defendants are responsible for their tortious actions.

It arises from the breach of duty primarily fixed by law. They include:

Vicarious liability- here the superior is held liable for action of his juniors

Joint tort feasors- here several tort feasors are held liable for the actions
committed out of their collaboration

Strict liability- here the defendants are held liable for their plan of
committing a tort even if they did not actually commit it

Product liability- is where manufacturing companies are held liable for

producing products that are harmful to consumers

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 TOPIC 3: LAW OF CONTRACTS

A contract is legal binding agreement made between two parties where by one party offers something
and the other responds by accepting it. Law of contracts is essential in business and commercial life.

Terms used in law of contracts

 Void contracts- they do not confer any legal right on either party
 Voidable contracts- are those which may be made void at the instance of one of the parties. For
example a contract which is induced by fraud can be avoided by the party deceived
 Unenforceable contracts- are those which are valid but are not respected by law because of
absence of evidence and form required by law
 Enforceable contracts- are valid and respected by law

Essentials of a valid contract

Offer and acceptance- there must be one party making an offer and the other accepting and with that
the contracts comes into existence

Intention to create legal relations- a contract is intended to have legal consequences eg for commercial
and business relations

Considerations- this means both parties are supposed to benefit from the contract mutually

Contractual capacity- parties to a contract must be in a position to contract. The following are
exceptions of parties that makes a contract void because of their incapability to contract:

 Infants and minors

 Insane people ie mentally ill or under an influence of drugs

Free consent- this means that both parties should agree the same thing in the same sense. Absence of
free consent is induced by:

 Duress- is violence of threatened violence to a party to a contract or to a member to his

immediate family. Its effect is that the contract may be made void able at the instance of one
party under threat.
 Undue influence- is unnoticeable form of pressure exerted upon one party to a contract and its
consequences are similar to duress
 Mistake- mistake does not affect the validity of a contract but operative mistakes really
undermine the true consent of the contract.
 Misrepresentation- are untrue statements of facts made by one party to contract with an
intention to be acted upon. Are 2 kinds:
i. Innocent misrepresentation- are statements of facts in which the maker believes to be true but
are in fact false

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 ii. Fraudulent misrepresentation- are those statements of facts which the maker knows to be false
(deceit)

Legality of the object- a valid contract must not contravene a statute or common law. A contract can be
made illegal in regard to its performance, consideration or its purpose

Possibility of performance- parties to a contract must have the possibility of performance in terms of
skills, experience, qualifications or have a good history of performance

Termination of a contract

Is the immature end of a contract and mostly happens before acceptance of the offer under a contract.
It is determined by the following factors:

 On death of either party before acceptance

 Lapse of offer- By non-acceptance within the time stipulated for acceptance
 Revocation of offer- is the withdrawal of the offer by the offeror before acceptance
 Rejection of offer- its not guarantee for the offer to be accepted. Rejection may be
communicated or not or may occur when the offeror makes a counter offer

Discharge of a contract

Discharge of contract occurs after acceptance where by both the parties to a contract have tried or fully
met their contractual obligations. A contract can be discharged in the following ways:

Discharge by agreement- here the parties to a contract may come into agreement to release each other
of contractual obligations provided there is mutual consideration at that stage of discharge

Discharge by performance- after each party to a contract have fully completed their obligation under the
contract and nothing remains to be done, the contract is discharged by their performance

Discharge by subsequent impossibility or frustrations- an agreement in which at the outset is impossible

is void. Where a contract becomes impossible to perform subsequently, the agreement is said to be
frustrated and the legal position is different. Such as incase of national calamities, change in law etc

Discharge by operation of law- contract can be discharged when there reaches a time the law renders it
unenforceable by the following factors:

I. Lapse of time- on expiration of the contract period

II. When there is material alteration of contract deeds
III. Either of the party is discovered bankrupt
IV. Death of either the party

Discharge by breach- breach occurs when either of the party repudiates/ refuses or disables to comply
with his/ her contractual obligations. Such breach discharges a contract. Breach of a contract entitles the
injured party to an action to seek for remedies.

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Remedies for breach of a contract

Are categorized into 2:

Equitable remedies- are actions rather than a financial award and are often granted when monetary
remedy do not provide adequate resolution. They include:

 Refusal of further performance- on breach, the injured party may of his own accord treat the
contract as at end (rescinded) and refuse to perform or fulfill his part of the contract
 Specific performance- it is a court order that requires the breaching party to perform their part
of the contract they breached according the original terms
 Contract reformation or novation- the court orders the original contract to be rewritten to
reflect the actual intentions of each party in more details
 Injunction- the judge can issue an injunction that requires one party to stop doing something
specific because it is causing irreparable harm to the other party and monetary damages cannot
replace or repair the issue

Unequitable/ legal remedy- takes several forms of monetary compensations. Includes:

 Quantum meruit- is an event in breach of a contract where the injured party may have a claim
other than for damages, claiming for damages of what he has done under the contract
 Damages- is a compensatory remedy for the injured party for the losses caused by a breach of a
contract. These damages include:
i. Compensatory/ general damages- are compensations which the jury is entitled to award on
proof that a breach of a contract have been committed
ii. Nominal damages- where a technical breach has occurred and the plaintiff has suffered no real
loss, the court may find for the plaintiff and award a nominal sum to acknowledge his victory of
the case
iii. Liquidated damages- are damages which are ascertained and agreed beforehand by the parties
to a contract. It’s like a contingency plan for future breach
iv. Punitive damages- it’s there to compensate for every loss of time, money or feelings of the
injured party and is normally awarded to prevent further breach

TOPIC 4: MORTGAGE AND CHARGE

A loan of money may be obtained in various ways:

The borrower may approach a friend who may agree to the loan quite freely, making no charge

A borrower may obtain a loan from a stranger who may insist on some form of a security against
payment. This security may be personal i.e a guarantor who undertakes to repay the loan should the
borrower default or the security may be in a form of property against which the lender may lawfully
make a claim should the borrower default in repayment of the debt

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Terms used

Mortgagor/ chargor is the lender

Mortgagee/chargee is the creditor

Mortgage is the transaction that involve transfer of entitlement of an asset from a creditor to a lender
as a liability to a loan. On repayment of loan plus interest on time stipulated the liability shall be
discharged and the asset shall be transferred back to the borrower.

If the loan is not repaid on the date named in the mortgage deed, the borrower will be deprived
permanently of his asset hence the asset becoming a dead pledge.

Incase of a dead pledge the borrower will be given an agreed addition time to make payment of the loan
on which he complies he will be granted the right to redeem his asset back. This right is known as equity
of redemption

Charge on the contrary simply means that transactions involving proprietary right/ holding of the asset
without transfer of entitlement of asset in acquiring of a loan

Differences between mortgage and charge

mortgage
Involves transfer of entitlement of the asset
Suitable for larger loans
There is an equity of redemption
Mortgage is as a result of the act of the parties
Terms are usually fixed
charge
Involves holding of an asset
suitable for small sized loans
No equity of redemption
Charge is created either by the operation of law
or by the act the parties concerned
Terms are usually infinite

Types of mortgage

Legal mortgage- is the most secure and comprehensive form of security interest whereby it involves the
transfer of legal title to the mortgagee and prevents the mortgagor from dealing with the mortgaged
property while in subject to the mortgage. Its like in a way of a lease

English mortgage- here the lender is entitled absolutely to take possession of the mortgaged property
incase the borrower defaults to make payment

Equitable/ beneficial mortgage- here the mortgagee receives merely equitable interests in the property

Rights and remedies of a mortgagee

 Remedies are acquired after a mortgage is in default. Rights and remedies of a mortgagee for
legal mortgage includes the following:
 Right to be paid the loan plus interest within the stipulated time

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  Right to maintain the mortgaged property
 Remedy to sue for the debt on expiration of the redemption date
 Remedy to take possession immediately after a dead pledge
 Remedy to foreclosure- a foreclosure is a court extinguishing the mortgagor’s equitable right to
redeem the property and vesting the full estate in the mortgagee
 Remedy and a right to sell the property after a foreclosure for vesting it has been given
 Remedy and a right to appoint a receiver as per the mortgage deed to receive the profits and
interests on his behalf

Rights and remedies of a mortgagor

 Right to redeem the property after the liability has been discharged within the stipulated time
 Right and remedy for equity of redemption as long as foreclosure has not been given
 Right to receive his property in the same condition that was given out after the liability has been
discharged

TOPIC 5: LAND LAW

Ownership: ownership is the exclusive right to use, enjoyment, destruction and disposition to land. This
right has a limit where by if there is any change in the use of the land permission has to be obtained
from the local planning authorities

Possession- is the right for the land usage only. It exists in leaseholds and formerly existed with early
land owners. Whereby in course of time the idea of ownership grew with an advancing industrial and
capitalistic economy and the right to possession changed into right of ownership today

Ownership may be acquired in the following ways:

Originally- this was for early land owners where by they occupied land claimed to be for no one but for
wild birds and animals

Derivatively- through sale, gift, bet or compulsory acquisition by law

By succession- here is for beneficiaries under will on death of the previous land owner

Property- according to law it means things owned or those that are capable to be owned

Classification of property

Property is divided into two groups:

1. Real properties- are freehold interest in land or immovable property attached to land. Real properties
can also be referred to as real estates but real property can include intangible properties unlike real
estates. It’s categorized into 2:

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 i. Freehold estates- that involves long term and permanent ownership eg buying a commercial
space or inheriting parents’ home
ii. Non freehold/ leasehold estates- have short term control or use eg renting an apartment or
leasing a business space

2. Personal property- is the collection of items owned that are not attached to land or otherwise fixed in
a permanent location. Eg home furnishings, cars, jewels or other items you can move. Are categorized
into 2 namely:

 Chattels real- leasehold in land

 Chattels in personal- its of 2 kinds: chose in possession (tangible) and chose in action
(intangible)

Tenancy

Is a lease in which the tangible property is land.

Terms used in tenancy

Estates- are interests granted out of the land possessed or owned. Are categorized into 2:

I. Estates of lease hold- here the duration is certain

II. Estates of free hold- is for uncertain length of duration. It’s subdivided into:
 Estate of fee simple- is the greatest estate in land which may be held with the absolute land
owner
 Estate in fee tail- is the grant of estate involving land subdivisions and subsequence inheritance
and succession within the same lineage
 Estate for life- involves the owner of land in fee simple granting estates to a grantor at common
law indicating his intentions.

Lease- is a contractual agreement calling for the lessee/ user to pay the lessor/ owner for the use of the
land within the agreed time for payment

Premium- is the amount paid by the lessor to the lessee for the use of the land

Co-ownership- is the right for two or more people to own a land together. Its of 2 kinds:

 Joint ownership- here each individual is the owner of the whole land though the right of
ownership is subject to the right of the other party or parties. Eg for a husband and a wife both
have the same absolute entitlement to the property
 Ownership in common- here each individual is regarded as owning an individual share in the
property though not a specific part eg for co-operations, associations etc

Waste- is a term used to mean the damage to a property. Incase of a lease waste should not be
deliberate or permit it to depreciation unreasonably by neglect

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Servitudes- is the right to land that extends to the neighbour’s land. This right is 2 kinds:

 Easements- is the right to use and restrict the land of another in some way eg rights of light,
water or right to support buildings or other property
 Profits a prendre- is the right to take something from the land of another eg the right to fishing
in another ane’s river, grazing of livestock or collection of firewood

Types of tenancies

Fixed tenancy- here the commencement and the termination are certain. It’s for leasehold properties

Periodic tenancy- is for freehold properties in which its end date is uncertain

Tenancy at will- here the tenant takes possession of the property with the owner’s consent on the
understanding that the term can be brought to an end at any time by either the party giving a notice

Tenancy at sufferance- it comes to existence where on the expiration of the tenancy, a tenant’s holds
over without the landlord’s permission

Duties of the landlord

 To ensure that the tenant gets quiet enjoyment of the land

 Must not derogate the grant by making the land unfit for usage
 Has no obligation to ensure that the premises should be fit for habitation

Tenant’s duties

 To pay the rent

 To pay rates and taxes except those who are legally the landlord’s personal obligations
 Not to commit waste to the property

Express covenants in a lease

 to pay rent
 to pay rates and taxes
 covenant to make repairs
 to obtain insurance
 not to carry out trade or business
 not to sign or underlet without consent

toic 5: DESPUTE RESOLUTION METHODS

1. Mediation; is a voluntary non-binding out of court process in which a neutral mediator assists
the parties to attempt achieve a negotiated settlement by gaining the trust and confidence and
gets better understanding of each party
2. Litigation; is the process of preparing and presenting a case in court to be resolved

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 3. Adjudication; is a method of peaceful conflict resolution in which parties present arguments and
evidence to a neutral third party for a decision in their favor according to the established
procedures and rules of law
4. Arbitration; is a procedure in which dispute is submitted by agreement of both parties to one or
more arbitrators who make a binding decision on the dispute

ARBITRATION
Principal characteristics of arbitration
i. Arbitration is consensual: It can only take place if both parties have agreed to it.in the
case of future disputes arising under a contract, the parties insert an arbitration clause
in the relevant contract
ii. The parties choose arbitrators: under the arbitration rules, the parties can select a sole
arbitrator together. If they choose to have a three-member arbitral tribunal, each party
appoints one of the arbitrators.
iii. Arbitration is neutral: In addition of their selection of neutrals of appropriate
nationality, parties are able to choose such important elements as the applicable law,
language and venue of the arbitration. This allows them to ensure no party enjoys a
home court advantage
iv. Arbitration is a confidential procedure: Arbitration rules specifically protects the
confidentiality of its existence, disclosures made during that procedure and the award.

TERMINOLOGIES IN ARBITRATION
 Umpire: is another name for an arbitrator or an arbitrator appointed when the original
one does not reach to an agreement.
 Arbitration award: Is a determination of merit by arbitration tribunal and is analogous
to a judgement in a court of law
 Submission: Is the process by which both parties must sign at the outset of an
arbitration in which they agree to submit to an arbitration under the customer and
industry.
 Reference: Terms of reference clarifies the terms of dispute and if the arbitrator is able
to conclude evidence or not.
 Cost follows the event: means that the cost in arbitration proceedings shall be paid by
the unsuccessful party to the successful party.

ADVANTAGES OF ARBITRATION
i. Less costly compared to litigation
ii. Easy and quick since it involves less bureaucracies
iii. Proceedings are conducted at the conveniency of parties in terms of venue and language
applicable
iv. Arbitral tribunal is generally free from technicalities that evident in courts
v. Its proceedings are confidential
vi. There is flexibility since the decisions are not bound to the previous one

DISADVANTAGES OF ARBITRATION

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 i. Exercises unregulated discretion
ii. Tribunal award cannot be relied upon on other disputes
iii. Proceedings may at time not guarantee justice particularly if the questions are complex and the
arbitrator is not well versed in law

POWERS OF AN ARBITRATOR

 Administers oaths
 Determines the admissibility of evidence
 Demands security from either party
 Provides interim relief for remedies where necessary
 Determines whether he has the jurisdiction to hear the dispute
 Orders for relief on provisional basis

DUTIES OF AN ARBITRATOR

 To enter upon his duties once appointed without due delay

 Must specify date and place arbitration award was made
 Must set out reasons for his/her decision
 Duty to natural justice that’s concerned with impartiality and procedural fairness
 Duty to have a requirement to act judicially
 Duty to cost effective justice
 The duty to apply the law
PROCEDURE OF ABITRATION

1. Submission: Parties subject to dispute enters into a contract and signs a submission agreement
subject to arbitration rule
2. Reference and appointing of arbitrators: Each party selects arbitrators among people they trust
who prepares supporting evidence upon the claims of the parties
3. Arbitration cost: arbitration fee and administration fee must be paid before the process begins
4. Hearing: Arbitration tribunal hears the case that he examines and analyses
5. Award: Upon arbitral tribunal clarification of the case to the extent being sufficient for material
resolution it issues an award. The award can be set aside by the common court or request the
court to recognize it to ascertain its enforceability impeachment

 Read more on arbitration cost in the pdf provided

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