Legal Aspect in Social Devlopment Work-1

eldoret technical training institute
LEGAL ASPECT IN SOCIAL DEVLOPMENT WORK
INTRODUCTION TO LAW
MEANING OF LAW
SOURCES OF KENYA LAW
ORGANIZATION OF THE JUDICIARY
THE LAW OF TORT

MEANING AND SCOPE
TORT AND CRIME
TORT AND CONTRACT
TORTS AND VICARIOUS LIABILITY
TORTS RELATED TO SOCIAL WORK
GENERAL DEFENSES UNDER THE LAW OF TORT
CRIMINAL LAW
MEANING AND SCOPE
OFFENCES AND PUNISHMENT
DUTIES RELATING TO THE PROVISION OF SOCIAL WELFARE SERVICES OFFENCES
AND PUNISHMENT
GENERAL DEFENSES IN CRIMINAL LAWS
LAW OF CONTRACT
MEANING AND SCOPE
TYPES OF CONTRACT
ESSENTIALS OF VALID CONTRACT
BREACH OF CONTRACTS
REMEDIES
TERMINATION
CONSUMER PROTECTION
LAW OF RELATING TO ORGANIZATIONS

MEANING OF AN ACT OF OPARLIAMENT
REGISTRATION PROCEDURES OF ORGANIZATIONS
MANAGEMENT OF ORGANIZATIONS
DISSOLUTION OF ORGANIZATIONS
AMALGAMATION OF AN ORGANIZATION
LAW OF PERSONS
eldoret technical training institute 1

TYPES OF PERSONS
LEGAL SYSTEMS OF MARRIAGE IN KENYA
CHILDREN AND YOUNG PERSONS
MENTALLY DISODERED (INSANE) PERSONS PROTECTION
CITIZENSHIP AND NATIONALITY ACQUISITION
DOMICILE AND RESIDENCE
LAW OF SUCCESSION
MEANING OF A WILL
CONDITIONS OF REVOKING A WILL
CATEGORIES OF DEPENDANTS
TESTACY AND INTESTACY
PERSONAL REPRESENTATIVES
EMPLOYMENT LAW
EMPLOYMENT ACT
REGULATION OF WAGE AND CONDITIONS OF EMPLOYMENTACT
WORKMENS COMPENSATION ACT
FACTORIES ACT
EMERGING ISSUES
EMERGING TRENDS IN LAW IN KENYA
EMERGING TRENDS IN LAW IN KENYA
 CHILDREN BILL
 SEX OFFENCES ACT

INTRODUCTION TO LAW
Meaning of law
 Its a set rules or principles imposed against the citizens of the country by the state.
 Its also a set of rules that govern the conduct of affairs in a given community at a given
time.
 Its also a body of principles required and applied by the state in the administration of
justice.
The purposes of laws
1. To promote social cohesion among the society;- each society or community has its laws which
regulate the mutual relations and contacts of its members. The laws are enforced to ensure that
members of the society may live or work together in an orderly and peaceful manner.
1. To regulate the behaviour/contact of persons.
2. To provide justice to the members of the society.
3. To maintain political and economical stability.
4. To protect fundamental rights and freedoms of the individuals.
5. To establish the procedures and regulations regarding the dealings among the individuals.
6. To maintain peace and the security in the country.
FEATURES OF LAW
i) Set of rules- its a set or body of rules. The rules may originate from act of
parliament, court cases or some other acceptable sources
ii) Guidance of human conduct-these rules are enforced for the guidance of human
conduct. Human beings follow these rules for their own safeguards.
iii) Application t community- these rules apply to a specific community, they maybe
state or business community. Laws re different from one community to another eg
what is alw in Kenya may not be law in Uganda.
iv) Change of rules- the law changes over a period of time. This means its not static eg
what was law in 1960s may not be law in 1990s

v) Change of rules;- law must be enforced to ensure peace and order in the country.
The enforcing agencies include police and the court of law.
Law and Morality
Wrongs may be classified as:
a) Legal wrongs
b) Moral wrongs
Legal wrongs are those wrongs that violate the state laws and are liable to court proceedings.
Moral wrongs are wrongs that are against the moral values of the society which may not be
enforced by the courts unless they are also part of the laws of state.
CLASSIFICATION OF LAW
Law may be classified in different ways
a) Public law and private law
b)Civil law and criminal law
c) Procedural and substantive law
d)International law
Public law it refers to the law that governs the relations between the state and its citizen.
 Public law is that part of law which the state has an interest. It consists of constitutional,
administration and criminal law
 Constitutional law consist of those rules which regulate the relationship between different
organs of the state (legislative, judiciary and executive)
 Administrative law relates to the actual functioning of the executive instruments of the
government.
Private law the law that governs the citizens among themselves.
 It is primarily concerned with the rights and duties of person towards other person.
 Private law is also called civil law
Criminal law refers to the body of rules and principles that governs the state and individuals
against criminal acts.
 Criminal law falls within the public law. This is because the duty of the state is to protect
its citizens and it is state which must: - seek redress for any public wrong (crime)
committed against any citizen.

 The state prosecutes any criminal on behalf of the citizen as a whole, the victim of
criminal conduct himself has no direct interest in the case.
Civil law – is primarily concerned with violation of private rights belonging to an individual in
his capacity as an individual.
 Here the state has no direct interest in cases between private individuals as long as law
and order are maintained.
Division of Civil Law
i) Law of contract;- this determines whether a promise is legally enforceable and what
are its legal consequences. C contract is a binding agreement or promise.
ii) Law of tort;- this is a civil wrong or wrongful act against an individual for which the
remedy is a common law action for unliquidated damages.
iii) Law of property;-these deals with the nature and extend of the rights which people
may enjoy over land and other property.
iv) The law of succession;- this deals with how properties of the dead persons should be
distributed between his family.
v) Law of trust;- this deals with various aspects of trust and imposes a strict obligation
on the trustee to administer the trust property in accordance with the condition of the
trust.
DIFFERENCES BETWEEN CRIME AND CIVIL WRONG
CRIME CIVIL WRONG
 Its a public wrong against the state  Private wrong against an individual
 The parties are the prosecution and  The parties are the plaintiff and the
accused. The prosecution represents the defendant. The plaintiff is the aggrieved
state while the accused is the offender party who is suing where as the
who is being prosecuted defendant is the wrong doer who is
being sued
 This is public wrong and the action  This is a private law, the parties are free
cannot be compensated by the parties. to compromise any action brought by
Its only in exceptional circumstances one of them and the plaintiff may at any
that the public prosecutor may time choose to withdraw any action
withdraw the prosecution against a

particular accused. against the defendant

 
 The prosecution must approve the case The plaintiff only needs to prove his case on a
against the accused beyond reasonable balance of probability not beyond reasonable
doubt. Any slight doubt must be doubt.
resolved in favour of the accused.
N/B. Every person is presumed innocent until
proven guilty
 Punishment is usually by imprisonment  A defendant found to have committed a
or fine or death penalty in the case of civil wrong is usually ordered to pay
capital offence. the plaintiff damages ie monetary
compensation or some other civil
remedy may be granted.
Procedural law It consists of rules which determine the manner in which the court
proceedings are required to be conducted in civil and criminal cases.
It guides how a right is enforced under a civil law and how a crime is prosecuted under a
criminal law.
Substantive law it consists of actual rules regarding to the civil, criminal and other fields of
law.
The international law it consists of those rules which regulate the relations between states or
countries. It is based on treaties, conventions and the rules of wars.
 It is classified under public international law and private international law
 Public international law:- it consists of rules which relate the relations between the
states. This law is based on treaties, rules of war etc. the disputes between states can be
settled by the international courts of justice. The court doesnt have any authority to
enforce it judgment
 Private international law:- it consists of those rules which regulate the relation between
persons of different states eg a Kenyan signs a contract with a Ugandan to contract a dam

in Sudan and if there is breach of contract, the Kenyan want to sue the other party in
Kenya. In this case the Kenyan court will decide which international law to apply.
THE SOURCES OF KENYAN LAW

This refers to various factors which contribute to and determine the content of law and the organ
which laws are created. Every law must have a source.
 A source of law is that which gives the law is force of validity. It means that the existence
of a particular principle of law can only be justified when it has a base or origin
 A source of law may be written or unwritten
 The constitution is the best example of written law and the customary law is the best
example of unwritten law.
Sources of Kenyan law

 Constitution of Kenya and the amendments of the constitution.
 Legislation-Act of Kenyan parliament
 Subsidiary or delegated or indirect legislation
 English common law
 African customary law
 Islamic law
 Hindu law
 Judiciary precedence or case law
1. The Constitution of Kenya

The constitution is the supreme law of any land. Constitution is a public document which
regulates the relations between the state and its citizens as well as the relations between the
organs of the state.
 This falls within the public law

 It consists of those rules or laws which determine the form of government and the
respective rights and duties of its citizens towards the government.
 Kenyan constitution can be amended by the votes of not less than 65% of all members of
the national assembly.
 The constitution of Kenya is the source of law from which other laws derive their validity
 Its the most powerful source of law in the country
 Its also superior to other sources of law.
CHAPTER CONTENT
I The Republic of Kenya
II The Executive
III The Parliament
IV The Judicature
V The protection of Fundamental rights and
freedoms of the individuals.
VI The citizenship of a country
VII The Finance
VIII The Public service
IX The Trust Fund
X The General
XI The Transitory.
In Kenya, this is not exception; the constitution of Kenya sets unity and guidelines on how the
country on how the country is to be governed and lays down the guiding principles on the laws
of the land e.g.
 Selection of three of the Kenyan constitution states that any law which contradicts the
constitution is void.
 This therefore means that all other laws of the land have to be based on and support the
provisions of the constitution.
2. Legislation (statutory) law-(Acts of parliament)

Is the second to the constitution.

It refers to law which is made by a body constituted especially for that purpose; it can be direct
or indirect.
 Direct legislation is where the law making body is parliament; parliament derives its law
making powers directly from the constitution.
The law made by parliament is also called a statute or an Act of Parliament.
 Indirect legislation is where an individual or a body other than parliament makes law on
the basis of powers derived from Acts of Parliament e.g. by-laws made by local
Authorities.
Legislation process in Kenya

Parliament is the supreme law making body in Kenya.
Section 46 of the Kenya constitution states that the legislative power is exercisable by bills,
passed by the National Assembly.
A bill is a draft of a proposed act of parliament; when it is passed by National Assembly, is
presented for president for his Accent after which becomes law and is called an Act of
Parliament.
Classification of Bills
a) Public bills
b)Private bills
c) Private members bill
1. Public bills: it deals with matters of public policy and their provision affect the general
public. They are introduced by the minister concerned.
2. Private bills: Are those bills that are intended to affect or benefit some particular person,
association and co operation.
3. Private members bills: are those bills that are introduced by a private member of
parliament, who moves a motion requesting the permission of the house to do so.
A bill passes through the following stages to become law.
a) First reading
b)Second reading
c) Committee stage
d)Report stage
e) Third reading

f) President Accent
First Reading
The clerk reads the title of the bill and the date for the second reading is fixed.
If the bill is approved at this stage, then is printed and circulated among the members to prepare
for a debate on the bill.
Second Reading
The minister or a member in charge of the bill explains the main features of the bill.
A debate takes place and the members of the house are allowed to participate, if the bill is passed
moves to the next stage.
Committee stage
The details of the various aspects of the bill are analyzed and scrutinized. The bill may be
referred to the committee on the whole house or a selected committee which consists of some
members of the house.
After analyzing the details of the bill at this stage, the chairman of the committee submits the
report to the house; amendments can be further debated, if its approved at this stage they move
to the next stage.
Third Reading
The details are not debated; it provides an opportunity for a limited debate on the principles of
the bill. A final note is taken and if approved it means the National Assembly has passed the bill.
President Accent
The bill passed by National Assembly does not become law unless the Accent is given by the
president.
3. Subsidiary Or Delegated or Indirect Legislation

Forms of delegated Legislation
Delegated legislation consists of :-
i) By-laws:- these are made by local authorities, public co-operations like Kenya
Railways. It requires the approval of concerned minister before they can be enforced.
ii) Statutory instruments, rules and orders:- these are made by ministers in charge of
government departments and such rules must be submitted to parliament either before

or after they come into force. These rules or orders may be passed or modified by the
parliament
The reasons/need for delegated legislation

 Parliament does not have time to enact all rules otherwise parliamentary machinery
would break down.
 Parliament may lack technical expertise to handle matters especially those of technical in
nature.
 Parliament is not always in session, and therefore cannot deal with agent matters
requiring immediate attention.
 There is flexibility in subsidiary legislation as well as elasticity. It can be easily revoked
or amended if it proves to be impracticable or its contrary to the spirit and aims of the
parent statute.
 Subsidiary legislation is an opportunity to experiment.
Criticism or Disadvantages of Delegated Legislation

 The publicity of delegated legislation is inadequate, so the individual may not be aware
about the rules and the order passed by the ministers.
 In some cases, the powers are given to the ministers to impose taxes eg local rates. The
authority to impose taxes should remain in the hands of the parliament.
 Sometimes the ministers are given the powers to legislate on matters of principle. Such
matters must be dealt with by parliament.
 There is inadequate control by parliament on delegated legislation
 Delegated powers are so wide, thus it creates uncertainty about the prevailing laws.
Control of delegated legislation

There is danger of sub-ordinate (or delegated) abusing the powers of legislation give to
him by the statute. In view of this danger, the law steps in to exercise some control.
 Delegated legislation may be controlled by:-
a) Courts

b) Parliament
COURTS
 While a court has no powers to invalidate an Act of parliament (except when it is
inconsistent with the constitution, it may declare statutory instruments, rules or by-laws
void on grounds that they are ultra-vires) ie beyond the powers contained in a statute
which gave them authority to make such rules or by-laws
 The doctrine of ultra-vires is also used to defeat those by-laws in addition to being intra
vires (within the powers) must not be unreasonable
 Thus the doctrine of ultra vires provides a useful means by which the courts can control
the powers of the sub-ordinate bodies engaged in legislation.
BY PARLIAMENT
 Parliament itself may declare void any piece of delegated legislation or part of it.
 It may also require any piece of delegated legislation to be before it for review before it
can be enforced.
INTERPRETATION OF THE STATUTE

A statute may have a provision whose meaning is not clear.
Its the duty of the court to interpret the statute
 In so doing, the court seeks to ascertain the attention of parliament and in this way
influence the effect of the statute.
 The court mainly apply the following rules:-
1. The literal rule:- here the word or phrase used in a statute are given their plain ordinary
meaning. The rule applies where the words used are clear and no interpretation is required
2. The golden rule:- applying the literal rule may sometimes result in absurdity,
inconsistency or inconvenience and this would not give adequate effect to the statute. In
such a situation, the ordinary meaning of the words maybe modified to eliminate the
absurdity, inconsistency etc that might arise from a literal interpretation of the words used.
3. The mischief rule:- this rule allows the court to examine the purpose of the statute. In
order to discover the mischief or defect in the existing law, the judge should thus adopt a
constitution which would eradicate the mischief and provide the appropriate remedy to the
innocent party concerned

4. The ejusdem generis rule:- is where a number of similar words within a clear meaning
are followed by a word or phrase whose meaning is not clear, the latter should be
interpreted as having a meaning similar to the other words that have a clear meaning. Its
illustrated in the case of Gregory Vs Fearus 1953.
4. English common law

This is also a source of law in Kenya to the extent that our courts find them compatible
with the needs of our people. The courts are absolutely free to modify the rules of common law
and equity or reject them all together.
COMMON LAW
 Its law that was not confined to the particular area but was administered in the whole of
England.
 Its the law which originated in the ancient customs and developed by judges on the
principle of state decision.
 It consists of the ancient customs and usage of England which have been recognized and
given the force of law
 Unlike statute law, common law is unwritten law
COMMON LAW COURTS

1. The court of exchequer:- it was the first court to be established in the 12 th century to
deal with disputes concerning the payment of royal revenue
2. The court of common please:- it was the second court to be established in the 13 th
century to deal with civil cases and matters relating to land.
3. The court of king bench:- it was the last court to be set up in 13 th C. its called Kings
Bench because the King used to preside over this court. It mainly dealt with criminal
matters and civil actions.
DOCTRINE OF EQUITY
Equity is a set of rules formulated and administered by the court chancery 641873 to supplement
the rules of common law.

 It only dealt with those cases where common law either provided no remedy or provided
a remedy which was not adequate.
 The rules of equity were never complete legal system.
 It was merely a collection of rules which were formulated to make common law more
reasonable.
 The court of chancery was provided by the Lord Chancellor himself.
5. African customary law

This applies to cases of a personal law nature where at least one of the party involved is a
member of a particular community whose custom is being involved.
If the other party is non member of that community he/she must know there is voluntary
submission to and agree to be bound by that very same custom; this is done only if he is not
repugnant to moral or justice system as outlaid in constitution.
It therefore means that law doesnt apply in cases of criminal e.g. rapes, incest, murder e.t.c.
N/B: The African customary law is only applicable when it is not repugnant to morality and
justice and where the same is not inconsistent with any written laws.
Jurisdiction in customary law:
1. Land held under customary tenure
2. Marriage, divorce, maintenance or dowry.
3. Seduction or pregnancy of unmarried woman or girl
4. Enticement of or adultery with a married woman.
5. Matters affecting status, and in particular the status of widows and children, including
guardianship, custody, adoption and legitimacy
6. Intestate succession and administration of intestate estates: as the same is not govern by any
written law.
6. Judicial precedents/the case law

Case law is found in judicial decisions or judgments.
Its a law made by judges
Its also known as judicial precedent
Case law is found in law reports eg Kenya law reports, East African law reports etc
The Doctrine of Precedent

Forms the basis of the case law, the principle behind this doctrine is that each case a judge
applies existing principles of law by following examples or precedent of earlier decisions thus it
helps judges to expand and develop the law.
TECHNIQUES OF PRECEDENT /PRINCIPLES/MAXIM

In deciding disputes, the judges of the inferior courts follow the decisions of the higher courts
judges if cases involving similar facts and points of law come before them
 Its not the entire judgment which is a binding precedent, its only that part which
constitutes the Ratio Decidend (reason for the decision) and the rest of the judgment is
not binding.
 Sometimes a judge may have said things which are not structurally relevant to the final
judgment, such remarks are known as Orbiter Dicta (Remarks made by the way) and do
not create any binding precedent
 However Orbiter Dicta is not altogether destitute of the legal consequence. It creates a
persuasive authority when there is no binding precedent available.
N/B
1. Ratio decidendi (reason for the decision):- its not every part of the case that forms the
precedent. Normally judges give reasons for their decisions. These are known as the ratio
decidendi of the case.
2. Orbiter Dicta (statement made by the way in the course of judgment):- such statements
may be command on the law, but unlike Ratio Decidendi, they dont create any precedent
at all. However there is no precedent in a particular case, the Orbiter Dicta continued in a
previous decision, though not binding,
3. Stare Decisis (means let the decision stand):- it determines the weight to be attached to a
particular precedent. The general rule provided by the doctrine of stare decisis is that a
decision made by court higher up in the hierarchy binds all lower ie it must be followed
by the lower courts. The lower court cannot therefore over rule a higher court on any
decision.
TYPES OF PRECEDENTS

1. Declaratory Precedent:- it where a judge applies an existing rule of law without extending
it, he is merely declaring the law and his judgment focus what is known as declaratory
precedent
2. Original Precedent:- it may happen that in particular case there is no precedent (or
previous decision) on which the court can rely. The judge must then decide the case on
the basis of general principles of law. In this way, he lays down an original precedent to
be followed in future in a similar case.
3. Distinguishing Precedent:- applying an earlier case was currently declared on its own
facts or where the earlier case is a decision of a court superior to the one now considering
the case, the only way out is to distinguish the earlier case from the one on the hand. This
is done by establishing the fact of the earlier decisions is different from those in the case
on hand in a material respect, so that the earlier case is held not to apply. The earlier case
remains la w in its own circumstances while the one on hand though not following it also
becomes law. To the extent that a distinction has been made between the two cases, the
court is said to have laid down a distinguishing precedent.
4. Over Ruling Precedent:- as a case said to be over ruled if its expressly deprived of all
legal effects so that it ceases to have any authority at all.
 Over ruling is usually done where it is felt that the earlier case was wrongly
decided or it was decided without regard to existing principles of law.
 A court can only over rule its own decision or those of a court lower in the
hierarchy of the courts. Its bound by the decision of a court higher up the
hierarchy of courts.
ADVANTAGES OF CASE LAW
1. Certainty:- the maxim of stare decisis (stand by the decision already made) has
contributed certainly and consistence in the development of the rules of law. The strict
requirements of following the precedent of the superior courts relieves the judges of the
inferior courts from accepting responsibility of their decision
2. Flexibility and Growth:- case law has a room for changes because a decision which
might at a given time result in injustice on a particular case may be overruled or
distinguished.. Case law ensures flexibility in growth. It also adopts itself to changes
when they arise.

3. Detailed:- every principle of law or equity is discussed at length in a series of judgment

so that in the end we have at hand the full details of any one given principle. The statute
law always doesnt give full details of a particular matter which the case law does
4. Practical:- its based on real factual situations. Its therefore more practical and its
limitations are easier to determine, but the practical efforts of a statute is compared to
case law, is not easy to ascertain.
DISADVANTAGES
a) Rigidity:- since the decision of the superior courts binds the inferior courts, the
judges of the inferior courts are restricted in using their own reasons in giving a
different judgment. In actual practice, a judge of an inferior court can refuse to
apply a precedent where he feels that it may lead to injustice in the case before
him. He may refuse to follow the past decisions on the following grounds:
i) By proving that the superior court giving its earlier decision had
omitted to consider the provision of case relevant Act.
ii) By distinguishing the facts ie the case before him doesnt fall within
the Ratio Decidendi of another earlier and there exists some material
differences between the facts of these two cases
b) Over Subtule:- to be subtule is to be sharp minded, and this exactly what judges
are meant to be. Unfortunately they are sometimes over subtule particularly where
they dont miss to follow a particular decision made earlier or by some other
judge. They then make every effort to distinguish the earlier case and sometimes
the distinction is made on a minor or less artificial point.
c) Bulk and Complex:- case law is contained in a number of volumes of law report.
A person wishing to rely on a particular decision must look at a number of
subsequent decisions on the same matter to ascertain whether it is law or it has
been overruled, distinguished or otherwise interpreted. In this regard statute law is
more favourable.
Judiciary
It is an arm of government that is charged with the responsibility of imposing laws in the courts.
The head of the judiciary is the chief justice.
The Structure and Jurisdiction of courts

Introduction
Like any modern judicial system, Kenya has a court structure which operates at different levels.
The court at each level has power to deal with certain cases which is described as the
Jurisdiction of the courts.
The jurisdiction of a court can be either original, appellate or both.
Original jurisdiction is the power of the courts to hear cases at first instance, while Appellate is
power of the courts to hear cases on appeal.
N/B: Some courts like the District magistrates courts i.e. 2 nd and 3rd class of Appeal of Kenya
only has original and appellate jurisdiction.
The jurisdiction of a court can be limited to a prescribed area or subject matter e.g. as to the
crimes which can be tried or the amount of money in to be awarded or fined.
The hierarchical organization of the courts in Kenya

Supreme court
Court of appeal
Industrial & High court Land &

Labour court Environment Court
Chief Magistrate Kadhis Court

Court martial
Senior Principal
Magistrate
Principal Magistrate RESIDENT MAGISTRATE
Senior Resident
Magistrate
Resident Magistrate
2nd Class District Magistrate

1 Class District
st
Magistrate
3rd Class District Magistrate

The structure of courts in Kenya has been established according to the provision of the:
a) The Constitution of Kenya
b)The Judicature Act
c) The magistrate court Act (cap 10)
d)The Kadhis court
The Kenya court of Appeal is the highest court in the country.
The second highest court is the high court.
The court sub ordinates to the high court are the following:
 Resident magistrate court
 District magistrate court
 Kadhi court
Responsibilities of
Chief justice is the head of the judiciary.
Jurisdiction
Each of the court is limited in jurisdiction informs how much monetary amounts may be awarded
in primary jurisdiction and what sentences can be passed to them in criminal sense.
The courts structurally have geographically jurisdiction which means that a lower court in a
certain district may not ordinarily entrain the cases from other districts.
High courts
It has unlimited jurisdiction and can hear cases regardless of whether they originate from a
district different from that where at the particular court is situated.
Cases that require the determination of the rights of the parties through prerogative order are
only determined in the high court.
This is affected by the way of an application for judicial review urging the court to conduct a
review of a specific order matter; or issue/set of issues.
All the murder cases are to be conducted in high court.

In civil cases, the lower courts can only award monetary compensation that is only up to 1
million Kenyan shillings. Any one who fines case for amount higher than 1 million has to be
fined in the high court.
N/B: However, there are a few selected chief magistrates especially in large towns who may be
allowed to award more than this amount but this must be gazetted/discussed first.
Constitutional cases have to be constituted in the high court.
The chief justice is required to appoint a two judge bench to entertain such cases.
7. Islamic/Muslim law
Is a very limited source of law in Kenya. It is applied by the Kadhis courts i.e. when all the
parties to a case profess the Muslim religion. But only as two questions of Muslim law relating
to personal status, marriage, divorce or inheritance (section kadhis courts Act cap 11)

LAW OF TORT
Law of Tort
It is grounded in the concept of rights; under the law, all people are entitled to certain rights.
Some of these rights people may hold simply because they are members of a society.
These rights include among others:
1. Right to be free from bodily harm or injury.
2. Right to enjoy a good reputation.
3. Right to conduct business without unwarranted interference.
4. Right to have ones property free from damage or trespass.
5. Other rights arise under special circumstances e.g. patients who go to hospitals have the right
to expect competent care from the health care providers assigned to their cases. The law thus
imposes duty on all people to respect the rights given to others.
Tort law thus, governs the fowl play between laws and duties.
The origin of Tort
The word tort came from a Latin word known as tortus meaning twisted.
It means a wrong against individual.
N/B: A tort is different from a crime.
Crime means wrong against public at large therefore a tort may be defined precisely as ones
peoples interferences with another rights either through intent negligence or strict liability.
A person who commits a tort is called a tort feaser.Tort lawsuits is brought against the tort
feasor by the injured person themselves to recover money as compensation for the loss or injury
suffered.
Relationship
Tort and Crime
Tort is different from a crime:
Crime is a wrong against the public at large i.e. it is that wrong that is prohibited by law. It is a
wrong that is of public interest i.e. it is a wrong against a state of law.
Tort is a wrong of personal measure i.e. a wrong against individual.
In some cases a wrong is both a crime and a tort.

Relationship
Tort and Contract
Contract is an agreement between two or more parties which gives rights to legal obligation and
which legal obligations can be recognized and reinforced by a court of law.
It can either be oral or written.
Contract may result into a tort if any of the parties involved does not fulfill the agreement
(breach of contract) leading to injury or loss to the other party.
TORT AND CONTRACT DISTINGUISHED
TORT CONTRACT
The duty is fixed by law The duty is fixed by the parties
The duty is owned to persons generally The duty is owned to the parties to the contract
Remedies are few(restricted) The remedies are far much wider
TORT AND CRIME DISTINGUISHED

TORT CRIME
It is a wrong redressable by an action for It is a wrong the action of which involves
unliquidated damages punishment
The party suing is an individual or private Almost always the party suing is the state.
person
Tort of Strict liability

There are some activities that are so dangerous that the law will apply neither the principles of
negligence nor the rules of intentional torts. Should these activities injure someone or damage
property then the people engaged in these activities would be held liable regardless of how
careful they were and regardless of their intent.
This is known as the doctrine of strict liability. It applies to ultra hazardous activities i.e. those
activities that cause extreme damage to people and property. The risk must be of such nature of
no amount of care will eliminate it.

Using explosives, keeping wild animals, storing of highly inflammable liquid in densely
populated areas.
Strict liability thus means that the defendant is liable to the plantiff regardless of faults.
The Vicarious Liability
The person who commits a tort is always liable for the same but sometimes another person who
did not commit a tort is also liable. This is a case when the relationship of master and servant
exist.
The basic rule is that a master is liable for any tort which the servant commits in the cause of
employment.
Torts related to Social Development work
1. Trespass
Is a wrongful injury to or interference with the property of another person. Property refers to
every thing that a person owns including moving and unmovable goods.
There are three types of trespass
(a) Trespass of land
(b) Trespass to person
(c) Trespass of goods
Trespass to land is committed where the plantiffs possession to land is wrongfully interfered
with.
Wrongful interference to the possession to plaintiff
TRESPASS TO LAND
Trespass to land is committed where the plaintiff possession of land is wrongfully interfered
with. its the fact of possession rather than ownership that is important; as such the plaintiff may
be anyone in possession of land, whether he is the owner or a tenant. Wrongful interference with
possession in relation to the plaintiffs land may take the form of wrongfully entering upon it, or
wrongfully remaining on it, or wrongfully placing or projecting any material object on it.
a) TRESPASS BY WRONGFUL ENTRY

This is committed where there is physical contact with the plaintiffs land, however slight. it
includes acts like encroaching on the land or walking through it without authority, sitting on the

plaintiffs fence or putting a hand through his window without authority etc.Also an abuse of a
right of entry may constitute a trespass,e.g.a person authorized to enter premises for the purpose
of repairing them becomes a trespasser and he picks and eats fruits on the premises without
authority. If a person misuses this authority, it is known as a trespass.
b) TRESPASS BY REMAINING ON LAND

This type of trespass is committed by a person who, having been originally authorized to enter a
upon land, is subsequently asked to leave: such person becomes a trespasser when he fails to
leave the land within a reasonable time.
c) TRESPASS BY PLACING THINGS ON LAND:
Trespass by placing things on land is committed by him who places any material thing on the
plaintiffs land. Or who allows such material thing or noxious substance, to come into contact
with (or cross the boundary of) the plaintiffs land. This type of trespass is similar to nuisance,
but
The two are different in the following respects:
1.) In trespass the injury is direct since it affects the plaintiffs possession; but in nuisance the
injury is indirect because it is his land that is affected, rather than its possession.
2)Another distinction arising from the explanation given above is that while trespass relates to
possession of land, nuisance relates to the user or enjoyment of land: in trespass the plaintiff s
possession is at stake, while in nuisance it is the use and enjoyment of land that is at stake.
3) Trespass is actionable per se, whereas nuisance, just like negligence is only actionable upon
proof of damage.
d) CONTINUING TRESPASS
As long as the act of constituting a trespass remains, without the trespasser doing anything to
avoid it, there is said to be a continuing trespass. This arises where, for instance, the trespasser
chooses to remain on the plaintiffs land or fails to remove there from any matter that is the cause
of the trespass. Where there is a continuing trespass, the plaintiff may bring a number of actions

against the defendant. This is because as long as the trespass continuous to suffer and there is
always a fresh cause of action.
e) TRESPASS BY RELATION
The plaintiffs possession of the land relates back to the time when he first acquired a right to
possess the land and he is deemed to have been in possession of it from that time. A possessor of
the land may therefore sue any person who committed an act of trespass on the land even before
he himself took actual possession of it. Since the plaintiffs right of action is based on a title
which legally relates back to an earlier period, the trespass in question is known as trespass by
relation. It is all based on the doctrine of relation back. Example, A owns land which he sells off
to B. A year passes before B has taken actual possession of the land may sue C for trespass
notwithstanding that he had not yet taken possession of the land when the act of trespass was
committed; Bs title relates back to the time when he first became entitled to take possession i.e.
the time w hen he bought the land from A.
IS TRESPASS A CRIME?
Trespass to land is normally a civil wrong, but it may give rise to criminal proceedings in some
cases. The trespass Act(Cap.294)states that a trespasser can be prosecuted criminally if he enters
on somebodys land with an intent to steal goods or commit any other offence. Otherwise, a
trespass to land is a tort and is actionable per se, i.e. without proof of special damages.
DEFENCES
The main defenses to a action for trespass to land are under;-
1) PRESCRIPTION
Land acquired by possession is also said to have been acquired by prescription. The new owner
may plead title by prescription as a defense to an action brought by the previous owner to
recover the land. A defendant may also plead prescription, as by proofing a right of way over the
plaintiffs land.

2) ACT OF NECESSITY;
The necessity may be pleaded as a defence to an action of trespass to land e.g, the authority of a
court broker.
3) STATUTORY AUTHORITY
Where the authority is conferred by the law, whether by statute or by court order, this is also an
available defense e.g, the authority of a court broker.
4) ENTRY BY LICENCE:
An authorized or licensed by the plaintiff is not actionable in trespass unless the authority or
license given is abused.
REMEDIES
The remedies in respect of trespass to land include;
1) DAMAGES
The plaintiff may recover monetary compensation from the defendant the extent of which
depends on the effect of the defendants act on the value of the land in question.
2) EJECTION
We saw earlier on that a person is entitled to use reasonable force to defend his property. Thus,
where a person wrongfully enters or remains on anothers land, he may be ejected using
reasonable force; unreasonable force may entail liability for assault. An ejectement may also be
based on a court order (an eviction order).
3) ACTION FOR RECOVERY OF LAND
The plaintiff may bring an action to recover his land from the defendant where there has been a
wrongful dispossession. It is common for such action to be coupled with the above two remedies.
4) INJUCTION
In addition to the above remedies, an injunction may be obtained to ward off a threatened
trespass or to prevent the continuance of an existing one.
5) DISTRESS DAMAGE FEASANT
In the case of trespass by placing things on land (or in the case of chattel trespass) the plaintiff
has a right to detain the defendants chattel or animal which is the cause of the trespass in
question.

TRESPASS TO THE PERSON

Like trespass to land, trespass to the person is three fold. It may consist of assault,
battery or false imprisonment.
1. ASSAULT
An assault is committed by a person when he threatens to use force against the person of
another, thus putting the other person in fear of immediate danger ;eg ,shaking a feast of pointing
a gun menacingly at the person of another. It is important that the person threaten must be put in
fear of immediate danger; otherwise there will be no assault. An assault is a tort as well as a
crime.
2. BATTERY
While assault is constituted by the mere use of a threat calculated to induce fear, battery
is defined as the tactual application of force against the person of another without lawful
justification ;eg, punching the plaintiffs nose, smacking his bottoms or slapping him on the
chick, etc.An act can only amount to a battery if it is intentional and voluntary. Thus, a person
who suffers injury in the process of scrambling for a taxi will find it difficult to maintain an
action for battery against anyone.
3. FALSE IMPRISONMENT
There is said to be a false imprisonment where a person is totally deprived of his freedom
without justification. Whether physically or otherwise; eg, locking up a person in a room whose
only exit is the locked door, or surrounding him such that it is practically impossible for him to
leave where he is, or telling him that if he leaves where he is standing he will be shot using a
gun which he knows to be physically present at that time. It is interesting to note that it a false
imprisonment may be committed even without the plaintiffs knowledge, eg, by locking him up
in a bedroom while he is asleep and then reopening the door before he has awoken. On being
informed of these facts the plaintiff may sue the person who did the locking and reopening of his
bedroom. The length of time during which a false imprisonment lasts is immaterial but is a
relevant factor in gauging the extent of the defendants liability in damages.

DEFENCES
1) PARENTAL AUTHORITY
A parent has a right to reasonably chastise or discipline his children. This means that where a
parent beats his child and locks him upon a room for some time by way of reasonable
chastisement, he can not be sued for battery or false imprisonment. Similarly, if a parent gets a
knife and threatens that he will cut off his childs mouth unless the child stops abusing growm-
ups,no action can be brought against him for assault.
When a child is at school all his parents rights of ordinary control over him are delegated to the
school authority(or teachers) and are exercised by the latter in the loco parentis .Reasonable
punishment by teachers ,is not actionable in tort.
2) JUDICIAL AUTHORITY
An act done under order of court is not actionable as a trespass. We saw at the beginning of this
chapter that acts done in a judicial capacity are not actionable in tort. It follows that where a
judge orders corporal punishment of a number of strokes, no action for battery can be brought
against him or the person administering the strokes.
3) GENERAL DEFENCES
The defendant may also rely o the general defences already considered. Self-defence is a
particularly viable defence to assault and battery. Volenti (or the plaintiffs consent), may also be
pleaded. Thus ,a patient who has consented to a medical operation cannot turn around and sue
the surgeon for trespass (battery).Similarly, a player or spectator who suffers injury in the course
of a game whose rules are being followed cannot sue for trespass. Also, statutory authority may
be pleaded as a defence.
REMEDIES
An award of damages is the most obvious and usual remedy.

ii) HABEAS CORPUS

The writer to habeas corpus is a remedy to false imprisonment. The writer directs the person in
whose custody the applicant is detained to produce him before the High court; the court may
order his release if appears that there are not sufficient grounds for detaining him.
TRESPASS TO GOODS, CONVERSION AND DETINUE
1. Trespass to goods:
A trespass of goods is committed by a person who directly and intentionally interferes with
goods in the possession of another without lawful justification. The plaintiff may be a person
either in possession or entitled to immediate possession of goods. the wrongful interference may
be constituted by removing the goods from one place to another eg taking them away from the
plaintiff possession, using the goods eg wearing the plaintiffs shirt or destroying or damaging
the goods
N/B a finder of lost property is not liable for trespass where the owner of the property is not
known to him and cannot be easily ascertained.
2. CONVERSION
Like trespass to goods, conversion is based on possession and is actionable only if defendants
act was intentoional but not where the defendant was merely negligent. Conversion is constituted
by a dealing with goods in a manner that is inconsistent with the rights of the person in
possession of the goods or entitled to their immediate possession eg where A intentionally sells
Bs goods to C without any authority from B
3. DITINUE

detinue is committed where goods are wrongfully withheld or detained from a person entitled to
their immediate possession, including a withholding by a bailee from a bailer. Thus, where A
borrows a hoe from B and subsequently fails or refuses to return it to B when its return is due, B
may sue A for detinue and A will be liable even where the hoe is proved to have been stolen
from him at the time where its return was due.
DEFENCES
Not many defences are available to a defendant in an action brought in respect to a wrong to
goods. But where the defendant has a right to possess the goods he has a good defence. Besides,
general defences like statutory or judicial authority may be relied upon.
REMEDIES
If the plaintiff succeeds he can recover either the goods or their value. He can claim the full
value of goods and damages for any inconvenience suffered by him. The court may also order at
its discretion specific restriction of the goods if the award of damages is not an adequate remedy.
NUISANCE
This tort is committed whenever a person is wrongfully disturbed in the use and enjoyment of his
land. Generally it arises from the duties owned by neighboring occupiers of land. No one should
use his property in a way which if likely to affect his neighbors use of his own land.
Although the tort of nuisance is usually committed only where the plaintiff and defendant are
owners ot occupiers of land, in certain circumstances the tort may be committed in places like a
highway or even a river.
There are two types of nuisance; private nuisance and public nuisance.
1. PRIVATE NUISANCE
A private nuisance is committed where a persons private rights in his land are wrongfully
disturbed, whether physically or by allowing noxious things to escape on to his land. thus, its
nuisance to obstruct an easement or private right of way; or to allow a weak structure to hang
precariously above the plaintiffs land, thereby creating a potential source of danger to the
plaintiff; or to allow smoke, noise, gas fumes etc, to escape onto the plaintiff s land thereby
inconveniencing him.
2. PUBLIC NUISANCE

Public nuisance is also known as common nuisance. It affects the comfort and convenience of a
class of persons but not necessarily every member of the public. Thus the obstruction of highway
is a public nuisance, and also a music festival accompanied by large scale noise.
Continuing Wrong
Generaly nuisance is only actionable when it is a continuing wrong. a disturbance or
inconvenience on an isolated occasion will not ordinarily be treated as nuisance.
DEFENCES
1. De Minimis Non Curat Lex (or Triviality)
a person aggrieved by a nuisance can only maintain an action where the damage suffered by
him is substantial. but if the damage suffered is soo trivial, minor or negligible that no
reasonable person would have a course to complain, no such action may be maintained; and
if sued the defendant my plead de minimis non curat lex
2. REASONABLE USE OF PROPERTY.
if the defendant can prove that the nuisance complained of resulted from a reasonable use of
his property, this will to some extent afford him a defence.
3. PRESCRIPTION
A prescription right to continue a nuisance is acquired after twenty years. thus where a
nuisance has been committed on the plaintiffs land from a continuous period of twenty years,
the plaintiff cannot therefore maintain an action in respect of the nuisance; and if he does, the
defendant may plead prescription in defense.
4. PUBLIC BENEFIT
Public benefit, as a defence to an action brought to remedy a nuisance, has only a limited
application. Private right must generally be respected. The only exception is where there is
statutory authority to derogate from such rights.
GENERAL DEFENCES
Some of the general defences already discussed eg volenti non fit injuria may be relied upon by a
defendant in an action brought against him in respect to nuisance.
REMEDIES
1. Abatement- this remedy is by way of self help. a person aggrieved by nuisance is at
liberty to abate (or stop) it. But the act of abatement must be peaceful and , where

feasible, after notice to the tortfeasor; otherwise by dramatic turn of events, the aggrieved
party might, in an attempt to abate nuisance, render himself liable in nuisance instead.
2. Injunction- this is a remedy which is granted to the plaintif to restrain the defendant from
committing the nuisance. it is awarded where the nuisance already exists or is impending.
3. Damages- by this remedy, the plaintiff is entitled to full compensation in monetary terms,
so as to make good the damages caused by the defendants nuisance; as far money can do
it.
NEGLIGENCE
Negligence is the omission to do something which a reasonable man guided upon those regulations which
ordinarily regulate the conduct of human affairs would do or do something which a reasonable and
prudent man would not have done.
As tort negligence consist of the following three elements:

1. The duty of Care-
Is the duty to take reasonable care to avoid acts or omissions reasonable as likely to cause injury
to your neighbor. a neighbor in law is a person who is so closely and directly affected by your act
that you ought reasonably to have him in your contemplation.
2. Breach of the Duty
Its important to distinguish between the duty of care and the standard of care. The duty of care,
as we have seen answers the question whether the defendant was under any legal obligation
towards the plaintiff. The standard of care on the other hand is a yardstick by which the
defendants conduct is measured; it answers the question whether the defendant did what a
reasonable man would have done in the circumstances. Thus, the standard of care required of
every person is that of the reasonable man.
the duty to care is said TO BE breached where the defendant fails to exhibit that standard of care
required of him.
DEFAMATION
The tort of defamation is constituted by the publication of a false statement without justification,
which tends to lower the plaintiffs reputation in the estimation of right thinking members of the
society or to injure him in his office, trade or profession or which causes him to shunned or
avoided.no person should therefore publish a false statement which adversely affects the

reputation of another if such a statement is without justification, or he may do so only at risk of

incurring liability for defamation.
ELEMENTS OF DEFAMATION
1. the defendant must have made a false statement
2. the statement must be defamatory
3. the defamatory statement must refer to the plaintiff.
4. the defamatory statement must be published.
FUNCTIONS OF THE LAW OF DEFAMATION

-the law of defamation protects a persons reputation. every person has right to a good name and
no one should unduly interfere with this right. it also protects a persons business interest. this is
why a false statement which tends to injure the plaintiff in his trade, occupation or profession is
actionable in defamation.
-it also plays a role in maintenance of law and order.
TYPES OF DEFAMATION
1. SLANDER- slander is defamation by word of mouth ie transient or non permanent. in
exceptional circumstances a slanderous statement is actionable without the need of
proving damage. these exceptional circumstances are as follows;-
a) where the statement imputes a criminal offence punished by imprisonment
b) Where the statement imputes a contagious disease on the plaintiff.
c) Where the statement imputes unchastity of a woman.
d) Where the statement imputes incompetence on the plaintiff on the plaintiff in his trade,
occupation or profession.
2. LIBEL- It is the defamation in a permanent or non-transient form, including written
matter like a letter or an article, scandalous pictures, films or news.
DEFENCES
a) Justification- truth or justification may be pleaded as a defence where the matter
complained of is true and the defendant can prove that it is true. in case the defendant
fails to prove the matter, the case against him becomes more serious and aggravated
damages may be awarded against him

b) Fair Comment- fair comment on mater of public interest is another defence available eto
the defendant in a defamation suit. there must be facts truly stated on the basis of which a
comment is made and the facts must not be mixes up with the comment in such a way
that its difficult to distinguish the one from the other.
c) Absolute privilege- certain matters are not actionable at all in defamation and are said to
be as absolutely privileged. they include statements made by judges or magistrates in the
course of judicial proceedings as well as those made by members of parliament in the
course of a parliamentary debate, and also communications between spouses.
d) Qualified Privilege- an occasion is privileged when the person who makes the
communication has a moral duty to make it to the person to whom he does make it, and
the person who received it has interest in hearing it. where a head of department make a
report to his superior about a subordinate official in his department, has a duty to meke
such communication to his superiors and the superior has a correspondent duty to receive
it
e) Apology or Offer of Amends- the defendant is at liberty to offer to make a suitable
correction of the offending statement coupled with an apology or notice to persons whom
the statement has been published that the words are alleged to be defamatory of the
plaintiff. Such offer may, in appropriate circumstances, be relied upon as a defence. but
an apology is effective only where its genuine, not where its equivocal
REMEDIES
a) Damages- in action of defamation, the plaintiff is entitled to recover damages for injuries
to his reputation and also to his feelings; injury to feelings is usually assumed and the
plaintiff should recover damages for mental pain and suffering and anxiety arising out his
fear of the consequences of the publication, in addition to compensation for the insults
suffered and the pain of false accusation as well as the irritation and annoyance
experienced as a result of the defamation.
b) Apology- an apology, particularly where its not equivocal, is another remedy available to
plaintiff.

c) Injunction- the court may issue orders for restraining the publication of a libel. but the
plaintiff must first proof that the defamatory statement is untrue and its publication will
cause irreparable damages to him.
CRIMINAL LAW
Meaning and scope:
 Its a body of rules that defines conduct that is prohibited by law.
 It involves the prosecution for an act that has been classified as a crime.
 It is enforced by the state unlike a civil law which may be enforced by private
parties.
 It has uniquely serious potential consequences or sanctions for a failure to abide
by its rules.
Def: Crime
 This is unlawful act or omission which is an offence against the state or an individual
 It s any unlawful act or event against the public (state) or an individual.
Parties to a crime
1. Principal:- this is a person who actually commits crime.
2. Accomplice:- this is the person to assist another to commit a crime.
3. Accessory before fact:- its the person who orders a crime to be committed or helps the
principle to commit the crime but he is not present.
4. Accessory after fact:- this is the person who knows that the crime has been committed
helps the principal to escape capture.
Principles used in enforcement of criminal law.

1. Retribution:- it states that criminal ought to suffer in some way. Criminals take improper
advantage upon others and consequently, the law put them at some un pleasant
disadvantage in order to balance the scale. Thus one who murders may also be murdered
himself.
2. Deterrence:- individual deterrence is aimed towards the specific offender. The aim is to
impose a sufficient penalty to discourage the offender from criminal behaviuor. General

deterrence aims at the society at large. By imposing a penalty on those who commit a
offences, other individuals are discouraged from committing those offences.
3. Incapacitation:- its designed simply to keep criminals away from society so that the
society is protected from their criminal activities. This is achieved through prison
sentences. The death penalty has also served the same purposes.
4. Rehabilitation:- it aims at transforming an offender into a valuable member of the
society. Its primary goal is to prevent further offence by convincing the offender that
their conduct was wrong.
5. Restriction:-
General principles of criminal liability

Criminal liability is what unlocks the logical structure of criminal law. Each element of crime
that the prosecutor needs to prove beyond reasonable doubt is a principle of criminal liability.
 A crime is composed of elements. These elements include:- a mental state, prohibited
action and lack of legal justification. Each of these elements must be proven beyond
reasonable doubt. If any element is not proven, the person charged must be found NOT
GUILTY.
1. The principle of Actus Reus (criminal Act)

 There is no punishment for thinking about a criminal Act. A crime must have an Actus
Reus (Latin name for a bad act)
 A defendant has committed the Actus Reus of an offense if he has done some Act that is
an action prohibited by law.
 Most crimes consist of a defined set of actions that together are prohibited eg it may be a
crime to walk out of a store with an item and not pay for it. The Act of walking out with
the item without paying for the item is an Actus Reus. For it to be a crime, it must be
done knowingly.
2. The principle of Mens Rea (the guilty mind)

 An element of each and every crime is a state of mind

 This state of mind is referred to as Mens Rea (Latin word for guilty mind)
 Mens Rea is the defendant state of mind where he engages in prohibited conduct.
 The principle states that guilt can be attributed to an individual who acts:
i) Purposely:- when someone act to counciously cause a particular result.
ii) Knowingly:- an act is done knowingly when the actor is aware that his conduct has a
high probability of a specific result.
iii) Recklessly:- its when an individual disregards an unjustifiable results
iv) Negligently:- if someone has grossly deviated from the standards of care of a
reasonable person.
N/B
a) The ACTUS REUS and MENS REA must take place together or exist simultaneously.
b) Thinking about crime without doing it cannot be punished.
c) Doing a prohibited act without having criminal intent is not a crime, action and intent
must take place together.
3. Concurrence:- the Actus REUS and Mens Rea must take place concurrently.
For an act to be considered a crime and the perpetrator a criminal the following conditions must
be satisfied:
 There must be some conduct which is either an act or an omission
 The act or omission must be intentional
 The act or omission must be voluntary
 The act or omission must be prohibited by the law
 The act or omission must constitute some social harm i.e must be injurious to the state or
its citizen.
 The act or omission must be punishable by law
Defenses (or qualifications) to criminal liability

There are certain exceptions of qualifications in criminal liability namely:
a) Infancy

There is an errebutable presumption of law that a person under the age of eight years is not
criminally responsible for any act or omission (penal code section 14(1)). A person under the age
of 12 years is not criminally responsible for any act or omission unless it is proved that at the
time of the act or omission he had capacity to know that he ought not to do the or make the
omission.
 There are special statutory provisions regarding the punishment of infants and young
persons. The children act make provisions for the protection and discipline of children,
juveniles and young persons. It regulates provisions in the children courts, approved
schools, remand homes etc.
b) Insanity
Every person is presumed to be of sound mind, and to have been of sound mind at any time
which comes in question until the contrary is approved (Penal code section 11). A person is not
criminally responsible for an act or omission if at the time of doing the act or making the
omission he is through any disease affecting the mind incapable of understanding what he is
doing or knowing that he ought not to do the act or make the omission.
 If the accused is found guilty, but the insanity is proved, the verdict is guilty but insane.
The convicted person is detained at the presidents pleasure.
c) Intoxication
Intoxication does not constitute a defense to a criminal act unless the state of intoxication was
such that he did not know such an act or omission was wrong or did not know what he was
doing (section 13(1) of the penal code)
 If the intoxication is such as to amount to temporary insanity or if it would negate mens
rea, the accused is not guilty of any crime. Intoxication can be caused by alcohol or
drugs.
d) Mistake
A mistake as to the law is not defence where there is mistake of fact, it depends on whether or
not he would have been liable if the facts had been as he thought them to be, eg if A shoots B
believing that B to be C, A although he has made a mistake of fact will still be guilty of murder.
 On the other hand if a man were to kill his wife in his sleep, dreaming he was struggling
with a wild animal he would not be guilty of murder.
e) Compulsion

A person is not criminally responsible for an offence if it is committed by two or more offenders,
and if the act is committed only because during the whole of the time in which it is being done or
committed the person is compelled to do it. Eg if X is compelled to commit crime at gun at point
of a gun directed at him by by Y, X has a good defence.
 Nonetheless, the defence of duress is not available at a person charged with murder or
treason.
f) Self defence
The law permits a person to use reasonable force in defending himself, his family or property.
However, the means of defence must be compatible with the means or decree of force being used
against him. Excessive force is not justifiable in law.
g) Corporation
A corporation cannot be convicted of any crimes involving physical violence. But it can be
convicted of crimes committed by any of its agents acting in the course of their employment
h) Autrefils acquit
A person who has been once tried by a court of competent jurisdiction for an offence and
convicted or acquitted of such offence shall, while such convictions or acquittal has not been
reversed or set aside, not be liable to be tried again on the same facts for the same offence.
Offences and punishment
1. OFFENCES AGAINST PUBLIC ORDER

1. TREASON
The offence of treason consists of an attack on the safety of the state. It usually takes the form :-
i) Assisting enemies of the state at a time of war
ii) Making an attack on the life of the president
iii) Trying to overthrow the government by unlawful means

The offence of treason is defined in section 40 of the penal code. The punishment for treason is a
sentence of death or life imprisonment if the person is not a citizen
2. SEDITION
Sedition is defined as any conduct which threatens or excites dissatisfaction against the
government. This is usually done through the printing, publishing, selling or distribution of
seditious publications, ie publications which urge people to overthrow the government or which
incite people against the president or government. Honest and constructive criticism of the
organs of state will not be seditious.
3. UNLAWFUL ASSEMBLY AND RIOT

This offence is committed when two or more persons assemble with intent to commit an offence
or being assembled with intent to carry out some common purpose, conduct themselves in such a
manner as to cause people in the neighboughhood to reasonably fear that a breach of the peace
may be committed.
If twelve people or more fail to disperse after reading of the riot act the offence becomes a
felony with a maximum penalty of life imprisonment.
4. PERJURY
This refers to giving of false testimony in a judicial proceeding knowingly and which touches on
a matter material to the proceedings. This is a misdemeanor
5. BIGAMY
This offence is committed when a person, having a husband or wife who is living goes through a
ceremony of marriage which is void by reason of its taking place during the life of the husband
or wife. This is a felony punishable with imprisonment for five years (S170 penal code)
The offence is applicable in monogamous marriage. It has no application to marriage under
customary law which is either polygamous or potentially polygamous.
Other offences under public order include:-

a) Piracy (penal code section 69)

b) Ministration of unlawful oaths to commit capital offences (penal code section 60, this
offence is punished with death)
c) Unlawful possession of fire arms or other offensive weapons (section 88 and 89 penal
code)
d) Jeopardizing the society of aircraft (known as hi-jacking) (protection of aircraft Act Cap
68)
2. OFFECES AGAINST THE PERSON
1. Homicide:- is the killing of a human being by a human being. it may be lawful of

unlawful. If the homicide is unlawful it may be murder, manslaughter, infanticide or
causing death by dangerous driving. Homicide is lawful if it is carried out in the execution
of justice eg a sentence of death by a court of competent jurisdiction.
 Murder:- any person who with malice causes the death of another person by an unlawful
act or omission is guilty of murder. This attracts death sentence.
 Manslaughter: is the offence of causing the death of another person by an unlawful act
or omission. manslaughter can take the following forms:
a) Provocation: an act which would otherwise constitute murder can be reduced to
manslaughter on the grounds of provocation. Manslaughter is murder committed
in the heart of passion and is commonly referred to as murder in hot blood.
Provocation is defined to as some wrongful act or insults done to an individual
which will deprive him of his self control and induce him to commit an assault
leading to death of provocateur.
b) Suicide pact:- the survivor of the suicide pact will have committed manslaughter.
c) Involuntary manslaughter:- this occurs when a person intends to cause his some
personal harm but not intend to kill him or cause the victim grievous bodily harm.
A person commits involuntary manslaughter when he acts with criminal
negligence when a person refuses a child to have an essential operation or when a
doctor performing an abortion kills the patient.

d) Infanticide:- this offence is committed when a woman causes the death of her
child who is under the age of twelve months while the womans mind is affected
by giving birth to the child or by the effect of lactation after birth. There must be
evidence of some mental disturbance as a result of birth of the child. The
punishment of infanticide is the same as for murder ie life imprisonment
2. Sexual Offences
i) Rape:- rape is defined to an unlawful and intentional act by any person which cause
penetration with his or her genital organs into another persons private parts, either without
consent of the person or when the consent is obtained by force, threats or intimidation or by
means of false representations as to the nature of the act or in the case of a married woman
impersonating her husband. The punishment for rape is imprisonment for not less than ten years
and this may be increased to life imprisonment.
ii) Attempted Rape:- this offence is committed when a person unlawfully and intentionally tries
to penetrate with his genital organs into the private parts of another person
iii) Defilement:- this offence is committed when a person has sexual intercourse with a child
whether a child agrees or not. However, its a defence if the person charged had reasonable cause
to believe and did believe that the child was of age 18 years or above or was his wife.
The punishment for defilement differs with age of the child:
 11 years and bellow- life imprisonment
 12-15 years- imprisonment for 20 years
 16 and less than 18 years- imprisonment for not less than 15 years.
3. Sexual Assault
This is any unlawful intentional act in which an individual manipulates any part of his body or
her body (except his or her private parts), the body of another person or an object so as to
penetrate the genital organ of another person without permission. The punishment for sexual
assault is imprisonment for ten years or more.

a) Attempted defilement:- any person who attempts to have sex with anybody
under the age of 18 years but fails for any reason still commits an offense and can
be jailed for not less than ten years.
b) Gang rape:- this offense is committed by two or more persons who rape and
defile someone. The punishment for gang rape is 15 years or more and can be
increased to life imprisonment.
c) Indecent acts:- this refers to any act committed by any person who touches
another person with his or her private parts, breast or buttocks. Even a kiss can
amount to indecent act if its done against the persons will and feeling of carnal
passion and with a view to gratifying the accused persons passion or to excite the
other persons passion. A person convicted of an indecent act with a child shall be
jailed for not less than ten years. Where a person does an indecent act with an
adult upon conviction will be jailed for not more than five years or fined up to
Ksh. 500,000/=
d) Incest:- incest is any act committed by any person who has sexual intercourse
with someone who is to his or her knowledge, his/her daughter, son,
granddaughter, grandson, sister or brother, mother or father, niece or nephew,
aunt or uncle, grandmother, grandfather, half brother or half sister and adopted
brother or sister. Where the offense is committed against a minor, the accused is
liable to life imprisonment. Otherwise the person guilty of incest is liable to be
jailed for 10 years or more.
e) Promotion of sexual offense with a child:- a person who produces books,
pamphlets or shows a child pictures or materials intended t make the child to be
involved in sex may be jailed for between five years to life imprisonment. Any
manufacturing company that prints pornography material shall be fined not less
than Ksh. 500,000/=
f) Child pornography:- this offense is defined as an act carried out by any person
who takes immoral materials (books, pamphlets, paper, drawing, painting, art,
pictures, figure representation), imports immoral objects, takes part in a business
that deals with immoral objects and advertises immoral materials other than for
educational and religious use and generally for the public good. The punishment

to this offense is not less than six years and or a fine of not less than Ksh.
500,000/=
g) Sexual exploitation:- this offense is committed by encouraging a person to
continue with prostitution so that you can make money through him or her
(pimping). The punishment is a minimum of five years in prison or a fine not less
than Ksh 500,000/-.
h) Deliberate transmission of HIV and STIs:- the offense constitute any act
committed by any person who having actual knowledge that she/he is infected
with HIV or any other life threatening STI, intentionally, knowingly and willingly
spread the disease. A person convicted of this offense shall be jailed for 15 years
or more, this can be enhanced to life.
i) Cultural and religious offense:- any act committed by any person who for
cultural or religious reasons forces another person to engage in a sexual act is
guilty of a cultural and religious offense. The punishment is imprisonment for a
term not less than 10 years.
3. OFFENSES AGAIST PROPERTY.
a) Theft:- any person who fraudulently and without claim of right takes anything capable of
being stolen, or fraudulently converts to the use of any person, is said to steal the thing or
property (penal code section 268(1). The general punishment for theft is a maximum of 3
years imprisonment (Section 276 Penal Code). Theft is an offense against possession not
ownership. A thief can never become the legal owner of anything he has stolen.
b) Handling stolen goods:- this offense is committed when a person handles stolen goods,
knowing or having or having a reason to believe them to be stolen goods, dishonestly
receives or retains the goods or dishonestly undertakes or assists in their retention, removal,
disposal or realization by or for the benefit of another person or if he arranges to do so.
Handling stolen goods is a felony and is punishable with imprisonment with hard labour of
up to 14 years.
c) False pretence:- any person who by false pretence and with an intent to defraud/obtains
from any other person anything capable of being stolen or induces any other person to

deliver to any person anything capable of being stolen commits offense of obtaining by false
pretences
FORMS OF CRIMINAL PUNISHMENT
1. Death sentence
2. Imprisonment:- when a person who is not a citizen of Kenya has been convicted of an
offense punishable with imprisonment, the court may recommend to the Ministry of Home
Affairs that the convicted person be deported either immediately or upon completion of any
sentence imposed.
3. Detention under the detention Act (Cap 9):- detention camps are established under the act,
where prisoners may serve a term detention in lieu of serving a term of imprisonment.
4. Fines:- fines are often provided for a form f punishment. If no maximum sum is stipulated
then the fine must not be excessive.
5. Forfeiture:- when a person has been convicted foe compounding a felony, the court can
order the forfeiture of any property which has passed in the commission of the offense.
6. Compensation:- any person who is of an offense may be adjudged to make compensation to
any person insured by his offense.
7. Security for keeping peace:- the court can order a convicted person to enter into a
recognizance, with or without sureties for such terms as the court thinks fit, subject to the
condition that he shall keep the peace and be of good behavior for a given length of time. He
can be imprisoned for not entering into a recognizance for upto a period of one year. If a
person breaks any condition of a recognizance eg commit a further offense, a warrant of
arrest may be issued. The court after hearing the case can then pass sentence or order the
forfeiture of any sum in recognizance.
8. Approved schools:- the childrens Act gives the court wide powers aimed at the protection
and discipline of children, juveniles and young persons. Childrens court may make an order
committing a child (under the age of 14 years) or a juvenile of the age of 14 years or more
and under 18 years found guilty of any offense to an approved school.
9. Police supervision:- under section 343 of the criminal procedure code (cap 75), a person
who is convicted for a second time of an offense punishable with imprisonment for a term of
3 years or more, may also be ordered by the court to be subjected to police supervision for a
period not exceeding five years from the date of release from the prison.

THE LAW OF CONTRACT
THE NATURE OF CONTRACT

-A contract is an agreement or promise which is legally binding or enforceable by law.
-its a legally binding agreement between two or more parties by which rights are acquired by
one or more to acts or forbearances on the part of the other or others.
ESSENTIALS OF A VALID CONTRACT

1. Offer and Acceptance- where must be a lawful offer and lawful acceptance of the offer,
thus resulting into agreement.
2. Intention to create legal relation- there must be an intention among the parties that the
agreement should be attached by legal consequences and create legal obligations.
Agreement of social or domestic do not complete legal relations, and a such they do not
give rise to a contract eg an agreement to dine at a friends house or a promise to buy a
gift for wife are not contracts because they do not create legal relation.
3. Lawful consideration- consideration has been defined as the price paid by one party for
the promise of the other. An agreement is legally enforceable only when each of the
parties to it gives something and gets something. The something given or obtained is the
price for the promise and is called consideration.
4. Capacity of parties- the parties to an agreement must be competent to contract, other
wise it cannot be enforced by a court of law. In order to be competent to contract, the
parties must be of the age of majority, and of sound mind.
5. Free consent- free consent of all the parties to n agreement is another essential element
of a valid contract. CONCENT MEANS that the parties must have agreed upon the same
thing in the same sense. There is absence of free consent if the agreement is induced by;
coercion, undue influence, fraud, misrepresentation or mistake.

6. Lawful object- the object for which the agreement has been entered into must not be
fraudulent or illegal or r immoral or opposed by public policy or must not imply injury to
the person or property of another.
7. Possibility of performance- if the act is impossible in itself, physically or legally, the
agreement cannot be enforced at law.
CLASSIFICATION OR TYPES OF CONTRACTS.

1. Expressed and implied Contracts.
An expressed contract is one in which the parties specifically agree about the nature and terms of
their relationship. eg if A agree to sell goods to B for Ksh. 1000/- and B agree to buy the goods
at the same price, then there is said to be an expressed contract.
2. Unilateral and Bilateral Contracts
A unilateral contract is one in which only one party is bound. It is a rare type of contract which
arises, for instance where there is an offer for a reward. Thus if A offers to reward any one who
will recover his lost property, no one is bound to recover the lost property, but A himself is
bound to give the promise reward to anyone who might recover the property.
A bilateral contract is one in which both parties are bound. Thus if A agrees to sell goods to B
and B agrees to buy them at a stated price, both parties are bound.
3. Valid, Void and Voidable Contracts
-A valid contract is an agreement enforced by law. Agreement is enforceable by law when all the
essentials of a valid contract discussed above are present.
- A void contract is an agreement which is not binding or enforceable by law. This is because it
has no legal effect at all and its therefore not binding on any of parties.
- A voidable contract is one which is enforceable by law at the option of one of the parties.
Usually, a contract becomes voidable when the concent of one of the parties to the contract is
obtained by undue influence, misrepresentation or fraud.
4. Specialty Contract and Simple Contracts
A specialty contract is also known as a contract under seal. its an instrument in writing signed
and sealed by the party to be bound by it and delivered by him to the person for whose benefit it
was made.thus writing, signature, sealing and delivering are the four essentials of characteristics
of this type of contract.

- A simple contract is an agreement, expressed or implied which gives right to legal obligations.
A simple agreement may be in writing or agreed orally, or even be implied by the conduct of
parties.
The following contracts must be in writing:
a) Bills of Exchange and Promissory Notes.
b) Representations regarding credit worthiness or character.
c) Acknowledgement of Statute Barred Debts
The following contracts must be evidenced by writing

a) Contract of Guarantee
b) Contract of sale of land
c) contract of sale of goods over two hundred shilling
d) employment contracts over one month
e) hire purchase contracts
f) Money lending contracts.
5. Illegal Contracts and Unenforceable Contracts
An illegal contract is one which is prohibited by law or which contravenes a provision of law, or
one which is contrary to the public policy. Void and illegal contracts both cannot be enforceable
by law but the two differ in some respects. All illegal agreements are void but all void
agreements are not necessarily illegal eg an agreement with a minor is void but not illegal.
- An unenforceable contract is one which though valid, cannot be enforced because non of the
parties can sue or be sued to it.
6 Contract Uberrimae Fidei

A contract uberrimae fidei is in which only one of the parties has full knowledge of all material
facts, which he is under a duty to disclose, eg the insurance contract. Contracts ubarrimae fidei
are said to be contracts of utmost good faith, particularly on the part of the party under a duty to
disclose material facts. Examples are:
i) Family settlements (where full disclosure is required)

ii) Contracts for the sale of land. (Where the seller must disclose defects relating to title)
iii) Contracts of partnership (where every partner must exhibit utmost good faith in his dealings
with the other partner (s))
7. Contracts of Record
A contract of record consists of the judgment of court. Such contracts are formed by an entry on
the court records. The rights and obligation are put on court record and the resultant relationships
between them are said to constitute a contract of record. eg
i) Judgment of a court
This judgment constitutes a contract of record between the parties of the contract.
ii) Recognizance
In the criminal cases, the court may bind the accused to be a good behaviour and keep peace. the
person so bound acknowledges that a specific sum will be paid by him to the states if he fails to
observe the terms of recognizances.
8. Executed Contract
A contract is said to be executed when both the parties to a contract have completely performed
their share of obligation and nothing remains to be done by either party under the contract. eg a
book seller sells a book on cash payment, its an executed contract because both the parties have
done what they were to do under the contract.
9. Executory Contract
It one in which both the obligations are outstanding, one on either party to the contract, either
wholly or in part, at the time of formation of the contract. in other words, a contract is said to be
executory when either both the parties to a contract have still to perform their share of obligation
or there remains something to be done under the contract on both sides.
10. Quasi-Contract
This type of contract has little or no affinity with contract. Such a contract does not arise by
virtue of any agreement, expressed or implied between the parties the law recognizes a contract
under certain special circumstances. eg obligation of finder of lost goods to return them to the
true owner or liability of person to whom money is paid under mistake to repay it back cannot be

said to arise out of a contract even in its remotest sense, as there is neither offer and acceptance
or consent; but these are very much covered under quasi contract
A quasi contract is based under equitable principle that a person shall not be allowed to retain
unjust benefit at the expense of another.
FORMATION OF A CONTRACT
A contract is formed by an offer by one person and the acceptance of this offer by another
person. The intention of both parties must be to create a legal relationship and they must have the
legal capacity to make such a contract. The formation of a contract involves the following
factors:
a) The offer
b) The acceptance
c) Consideration
d) Contractual Capacity
e) Intention to create a Legal Relationship
a) THE OFFER
An offer is defined as an expression of willingness to enter into a contract on definite terms, as
soon as these terms are accepted. Its made by a person known as the offeror and addressed to the
offeree. Thus, if A writes to B stating his desire to sell his property to B at a specified price, A is
said to have made an offer to B. A is the offeror and B is the offeree.
TERMIATION OF THE OFFER
Its important to determine whether a particular offer is still valid and capable of acceptance, or
whether it has been terminated by some events and is therefore no longer capable of acceptance.
An offer is terminated or brought to an end by any one of the following events.
j) Revocation- an offer is said to be revoked when it is effectively withdrawn by the
offeror. Revocation is possible only before the offeree has accepted the offer
otherwise it is too late and the offeror is bound by a timely acceptance

k) Lapse of time- where the offer is silent about the time within which it is required
to be accepted, it must be accepted within a reasonable time. After the lapse of a
reasonable time the offer will be terminated.
l) Death- the effect of death on an offer depends on whether it is the offerro or the
offeree who has died. An offer made by a person can only be accepted by him and
him alone.
m) Failure of Condition- an offer is terminated by a failure of condition by which it
was made.
n) Counter Offer- a counter offer has the effect of terminating the original offer.
o) Rejection- an offer can be terminated when it is rejected by the offeree. thus the
offeree subsequently changes his mind and wishes to proceed on the offerros
terms, he must take steps to ensure that the offer is renewed.
b) THE ACCEPTANCE
an acceptance is an assent to the terms of an offer. it must be correspondence with the terms of
an offer.the offeree may be required to notify his acceptance in writing or to lodge it at a named
place or to a named person, OR communicate it within a specified period of time.
c) CONSIDERATION
The offer and acceptance are not enough to bring about a valid and binding contract. In the case
of simple contracts, these are required to be supported by consideration, otherwise the contract is
void. Valuable consideration may take the form of money or moneys worth. In a contract of
employment, the workers services are consideration on his part, while the salary paid to him is
similarly consideration on the employers part.
d) CONTRACTUAL CAPACITY
An essential ingredient of a valid contract is that the contractual parties must be competent to
contract. Every person is competent to contract who is of the age of majority and who is of sound
mind.

The general rule is that any person may enter into any kind of contract. But special rules apply to
the following persons.
d) minors
e) persons of unsound mind and drunken persons
f) married women
g) aliens or non citizen
h) coporations
i) cooperative societies
j) trade unions
1. Minors- a contract made by minors may are binding, voidable or void.

2. Persons of unsound minds and drunken person- a contract made by a drunk person is
binding on him only if it was made by him during a lucid interval i.e an interval during
which he sane. For this purpose, it is immaterial that the other party may have been aware
the PUMs mental capacity. Apart from this, the contract that is entered in by a PUM with
a person who knows him to be mentally incapacitated is voidable at the instance of the
PUM. However where the PUM has obtained necessaries under the contract, he is, like a
minor, liable to pay a reasonable price for them.
- As for a drunken person, his contractual capacity is generally the same as that of a PUM.
If the drunkenness is, to the knowledge of the other party, such as to render him incapable
of appreciating his acts, a contract entered into in these circumstances is voidable at the
instance of the drunken person upon sobering up.
3. Married Women- at common law married women could not enter into a contract. But
under the law reform (married women and a tortfeasor) Act 1935, the married woman can
sue and be sued in contract in the same way as single women.
4. Aliens and Non-Citizen- an alien is person who is not citizen of Kenya, can sue and be
sued. Any enemy alien i.e a person resident in an country which is at war with Kenya,
cannot sue, but if sued can defend an action.
5. Corporation- in case of cooperation, its contractual capacity is limited by provision of its
memorandum of association. It can only enter into these contracts authorized by the

memorandum; any other contract is ultra vires and cannot be entered into by the
corporation.
6. Co-operative Societies- a co-operative society registered under the Co-operative
Societies Acts (Cap490) can enter into contracts, sue and be sued in accordance with the
provisions of the Act.
7. Trade Unions- every trade union shall be liable on any contract entered into by it or by
an agent acting on its behalf; provided that a trade union shall not be liable on any
contract which is void or unenforceable at law.
DISCHARGE OF CONTRACT
A contract is said to be discharged (terminated) when the parties to it are freed from mutual
obligations. In other words, when the rights and obligations arising out of a contract are
extinguished, the contract is said to be discharged or terminated. A contract may be discharged in
any of the following ways;
a) Discharge by Performance- when a contract is duly performed by both the parties, the
contract comes to happy ending and nothing more remains. The contract in such a case, is
discharged or terminated by due performance
b) Discharge by Agreement- where a contract is still executor, i.e. where each of the parties is
yet to perform his contractual obligations, the parties may mutually agree to release each other
from their contractual obligation
c) Discharge by Frustration- A contract is said to be frustrated if an event occurs which brings
its further fulfillment to an abrupt end; and upon the occurrence of the frustrating event the
contract is immediately terminated and the parties discharged.
d) Discharge by Breach- contract is said to be breached when its terms are broken; a failure to
honor ones contractual obligation is what constitutes a breach of contract. a breach of contract
may take place when a party;
i) Repudiates his liability before performance is due. - a person is said to repudiates a contract
when he intimates to the other party, by word or by conduct, that he has no intention to honour
his contractual obligation.
ii) Disables himself from performing his promise

iii) Fails to perform his obligations.

d) Discharge by Operation of Law- a contract may be discharged by operation of law in
certain cases. some important instances are as under:-
i) Lapse of Time- if a contract is made for a specific period then after the expiry of
that period the contract is discharged eg partnership deed, employment contract etc.
ii) Death- the death of either party to a contract discharges the contract where
personal services are involved.
iii) Substitution- if a contract is substituted with another contract then the first
contract is discharged.
iv) When a person becomes bankrupt, all his rights and obligations pass to his trustee
in bankruptcy. But a trustee is not liable on contracts of personal services to be
rendered by the bankruptcy.
REMEDIES FOR BREACH OF CONTRACT

Whenever there is a breach of contract, the injured party becomes entitled for some
remedies. These remedies are:
a) Damages damages are monetary compensation allowed to the injured party of
the loss or injury suffered by hi as a result of breach of contract.
b) quantum meruit- the phrase quantum meruit literally means as much as is earned
or in the proposion of the work done(claiming reasonable compensation only for
the work done or goods supplied)
c) Specific performance- this means the actual carrying out of the contract as
agreed.
d) injunction- this an order of the court restraining a person from doing a particular
act
e) Rescission- when there is a breach of contract by one party, the other party may
rescind the contract and need not to perform his part of obligations under the
contract and may sit quietly at home if he decides not take any legal action against
the guilty party.

LAW RELATING TO ORGANIZATIONS

Company- is defined as an artificial person invisible, intangible created by or under law
with a discrete legal entity, perpetual succession under common seal.
 Its not affected by the death, insanity or insolvency of an individual member.
FORMATION AND REGISTRATION OF A COMPANY

A company comes in to legal existence upon the insurance of a letter of incorporation which is
obtained by filling with the registrar of companies
The promoters are required to submit the register of companies the following documents
1. Memorandum of association- this document defines the powers of a company and its
objectives. And it serves as a guide to the outside public. The memorandum contain the
following:-
i) the name of the company with the word Limited as the last word in the name.
ii) The country and town in which the registered office is situated.
iii) The objectives of the company
iv) A statement that the liability of the members is limited
v) The nominal authorized capital of the company
2. Article of association- this is second legal document that must be made, signed by the
promoters and sent to the registrar. Its very essential in the case of a private company but
a public company may, if it wishes, adopt the standards set of the article known as
Table. Contained in the article of association are:
i) Classes and rights of shareholders

ii) The issue and transfer of shares

iii) Methods of dealing with any alterations on the capital
iv) Procedures of general meetings and voting right
v) Qualifications, duties and powers of the Directors
vi) Borrowing, dividends and reserve policies
vii) Auditing the books
3. A Statutory Declaration by an advocate or by a person named on the article of directors
or secretary of the company in compliance with statutory requirement for registration of a
company
4. A list of persons who have consented to become directors
5. A written consent of each of such persons to work within Directors
MANAGEMENT OF COMPANIES
 A company cannot do anything beyond the powers given to in memorandum of
association
 Anything done in contravention of the object clause is done ultra vires beyond the
powers
 The company being an artificial legal person conducts its affairs through human
beings termed Directors, thus the directors are the agents of the company with
powers to carry out business on behalf of the company subject to
 Ultra vires of the article of the company.
FUNCTIONS OF DIRECTORS OF COMPANY

1. To enter into contracts on behalf of the company
2. To hire or dismiss employees
3. To borrow money, contract debts and repay such debts
4. Negotiate instruments of credit on behalf of the company
WINDING UP/DISSOLUTION OF A COMPANY

 If a company is wound up, it discontinues its business

 The winding up of a company brings it existence to the end

 The winding up of a company is either voluntary or compulsory
VOLUNTARY WINDING UP
This is initiated by members of a company. In this case a liquidator is appointed to realize all the
assets and discharge all the liabilities of a company
CIRCUMSTANCES LEADING TO VOLUNTARY WINDING UP

1. When the period fixed for the duration of a company has come to an end, and the
company has passed a resolution to do so.
2. If the company (for any other reasons whatsoever)
CIRCUMSTANCES UNDER WHICH THE COURT MAY ORDER THE WINDING UP

OF A COMPANY
1. The company has the special resolution, resolve that the company be wound up by the
court
2. The company has not commenced its business within one year or suspends its business
for a whole year.
3. Default in holding statutory meeting or in delivery of statutory report to the registrar.
4. When the company is unable to pay its debts.
5. The court are of the opinion that the company should be wound up
6. Reduction of members bellow minimum
CO-OPERATIVE SOCIETIES
Def:-
A co-operative is an autonomous association of persons united voluntarily to meet their common
economic, social and cultural needs, and aspirations through a jointly owned and democratically
controlled enterprise.
REGISTRATION OF CO-OPERATIVE SOCIETIES

Requirements for Registration of Co-operative Societies

The following objects are required for the Co-operative societies to be registered
a) The intention to promote the welfare and economic interest of its members.
 It has to incorporate in its by-laws the following co-operative principles;-
1. Voluntary and open membership
2. Democratic member control- members should be heard ie giving out grievances
3. Autonomy and independency of the co-operatives
4. Education, training and information of the members
5. Co-operations among co-operatives
6. Concern for the community in general
b) In case of Apex society, it should consist of two or more secondary societies. An
application to the registrar of societies shall be made and signed by him
There are two clauses:-
i) in case of primary society, there should be at least two persons qualified for
membership of the society
ii) in case of secondary or apex society, there should be a person authorized in that on
behalf of each co-operative society or union as the case maybe who are members of that
society.
N/B
If the registrar is satisfied that a society has complied with the provision of co-operative societies
Act, he may register the society and such a society exists by law under this Act.
CONDITIONS FOR DISSOLUTION OF A COMPANY

1. Where the society has less than a prescribed member or members
2. If it has failed to file returns with the commission for a period of three years
3. If it has failed to achieve its objective.

THE LAW OF PERSON

A person is defined as an entity or being which is recognized by law as having certain rights and
obligations. Such entity or being is said to be legal person (OR person in law). Legal persons are
divided into two: natural person and artificial person.
An entity which is recognized as being a person is said to have legal personality, i.e it has
attributes which are recognized by law as constituting a person. e.g human beings (a natural
person) and corporation (artificial person)
CORPORATIONS
A corporation is an association of persons binded together for some particular object; usually
carry out business with a view of profit.
TYPES OF CORPORATION
1. CORPORATION SOLE- a corporation sole is one which consist of one human member
at a time, such member being the holder of an office which is held in succession by one
person at a time. Some corporation sole are creature of the common law eg the office of a
bishop. There cannot be more than one bishop in a diocese at the same time: and when a
particular bishop dies, he dies as an individual, his office never dies and continues in
existence with another.
2. COPRPORATION AGGREGATE;- these consists two or more members at the same
time.
CREATION OF COPRPORATIONS
a) By Act of Parliament:- the state corporations are created by this method eg Kenya
Railways, Kenya Meat Commission etc.

b) Act By registration under companies:- the registered companies are created by

registration under Companies Act. These are known as Limited Companies
For a company to be formed there must be some people who bring out the idea of forming one
and setting it in operation. Such founder members are known as PROMOTERS. To form a
private company, it requires two and a public company seven promoters.
The promoters are required to submit to the registration of companies the following documents:-
 Memorandum of association
 Article of association
 List of directors
 A declaration that all necessary requirement have been duly complied with and the
directors agree to act as such.
MEMORANDUM OF ASSOCIATION
The company promoters have to make an application to the Registrar of Companies that they
need to form a company. This application must be signed by all of them and takes the form of a
document known as Memorandum of Association
The documents states:-
i) The name of the company with the word Limited as the last word in the
name.
ii) The country and town in the registered office is situated
iii) The objectives of the company
iv) A statement that the liability of the members is limited
v) The nominal authorized capital of the company.
ARTICLE OF ASSOCIATION
This is the second legal document that must be made, signed by the promoters and sent to the
registrar.
Contained in the Article of association are:-
i) Classes and rights of shareholders
ii) The issue and transfer of shares
iii) Method of dealing with any alterations on the capital
iv) Procedures and general meetings, and voting rights
v) Qualifications, duties and powers of directors

vi) Borrowing, dividends and reserve policies

vii) Auditing of the book ect.
PRIVATE LIMITED COMPANY

Have the following characteristics:-
a) This may consist of a minimum of two members, but the maximum may not exceed
fifty(excluding of past and present employees who become members)
b) A prive company is not allowed to call upon the public for funds in the form of shares or
debentures
c) Any transfer of shares is restricted, it must be approved by the board of directors
PUBLIC LIMITED COMPANY
a) A public company is one whose membership is not less than seven but no maximum limit
is imposed.
b) Expansion can be achieved through the sale of shares to the public.
c) Shares are freely transferable and thus more funds can be raised by sale of shares on the
stoke exchange.
UNINCORPORATED ASSOCIATION
an unincorporated association is one which has no corporate status i.e it has no legal personality
and cannot, therefore, own property or enter into contracts or sue or be sued in its own name.e.g
clubs, societies, trade unions, partnership etc. the property owned by such associations is
regarded as the joint property of all members although this property is held on the behalf of all
the members by trustees. When a wrongful act is committed (e.g a tort) by a member then only
the concerned member is responsible or liable.
PARTNERSHIP
Is a relation between persons carrying on a business in common with a view of profit. In
partnership business two or more persons jointly run a business. The name of partnership must
be registered first under the Registration of Business Names Acts (Cap 499).
TRADE UNION
A trade union is the association of labourers.

Its a continuous association of wage earners for the purpose of maintaining and improving the
conditions of their employment. Trade unions are also unincorporated associations.
MINORS
A minor is also known as infant. He is a person who is bellow the age of majority. A person who
has attained the age of majority is a major or an adult. The age of the majority Act (Cap. 33)
provides that a person shall be of full age and cease to be under any disability by reason of age
on attaining the age of eighteen years.
The infant can sue and be sued in tort. The age of criminal responsibility is at the age of eight
years.
LEGITIMATION
A legitimate child is a child is a child who is born within the wedlock (lawfully married), on the
other hand, illegitimate child is one who is born outside wedlock. Legitimacy Act (Cap 145)
provides that an illegitimate child can be legitimized by subsequent marriage of his parents.
Section 5 of this Act provides that an illegitimate person after being legitimate is entitled to take
any interest:
a) In the estate of an intestate dying after the date of legitimation
b) Under any disposition coming into operation after the legitimation
c) By descent under an entailed interest created after the date of legitimation
ADOPTION
Adoption is the process by which parental right s are transferred from the natural parents of a
child to other persons. An infant can be adopted so that the relationship between the child and the
adopter is similar to that of the child and parent.
Generally an infant can only have one adopter. However, an adoption order may be made as per
section 3 of the Act:
c) On application of two spouses authorizing them jointly to adoption infant.
d) Authorizing the adoption of an infant by the mother or father of the infant, either
alone or jointly with the other spouse.
Section 4 of the Act imposes the following restrictions on the making of Adoption Orders:
1. An Adoption Order cannot be made unless the applicant or in the case of joint
application, one of the applicants :

a) Has attained the age of 25 years and is at least 21 years older than the infant.
b) Has attained the age of 21 years and is a relative of the infant
c) Is the mother or father of the infant
2. An adoption order cannot be made except with the consent of the infants parent
or guardian or whoever might have actual custody of the infant or is liable to
contribute to the support of the infant.
3. An Adoption order can not be made upon application of one of two spouses
without the consent of the other, unless it appears to the court that such such
consent ought to be dispensed with.
4. An adoption order shall not be made unless the infant and the applicant reside in
Kenya
5. An adoption order shall not be made in respect of any infant unless the infant has
been continuously in the care and possession of the applicant for at least three
consecutive months immediately proceeding the date of the presentation to the
court of the application for the order.
MARRIAGE
Marriage is said to be a contractual relationship. Its viewed as a contract between a man and his
wife. The man gains the status of a husband and the woman that of a wife. It gives rise to certain
rights and duties.
The law of Kenya recognizes the following four systems of marriages:-
e) Statutory marriage
f) Customary marriage
g) Hindu marriage
h) Islamic marriage
The law relating to statutory marriage and divorce has been contained in the following acts:
i) The marriage Acts (Cap 150)
ii) The matrimonial Causes Act (Cap 152)

Marriage under customary law is recognized by section 37 of the Marriage Act (Cap 150). Hindu
marriage can be celebrated under the Hindu and divorce Act (Cap 157). Muslims can celebrate a
marriage under the Mohammedan Marriage, divorce and succession Act (Cap 156)
The parties to statutory marriage must each have capacity to marry. The capacity is determined
by their age, sex and marital status. Except in the case of a widower or widow, marriage age is
generally 21 years. A person below this age can only contract a marriage with the consent of his
father, or the mother in case the father is dead or of unsound mind or absent from Kenya.
As regard sex, the parties to the marriage must be male and female. The person of same sex has
no capacity to marry. Regarding marital status, each of parties to the intended marriage must be
single.
A marriage is null and void if it is celebrated while the former husband or wife of either party is
still alive and the previous marriage is still in force.
A marriage is null and void if the parties to it are within the prohibited decrees of consanguinity
or affinity. This means the close relatives, such as brothers and sisters have no capacity to marry
each other
The person of unsound mind has capacity to marry.
DIVORCE
Divorce refers to the dissolution of marriage by the court on account of its having irretrievably
broken down.
Each party to a marriage may apply petition to the court for divorce. Section 8 of the
Matrimonial Act (Cap. 152) provides that a petition for divorce may be presented to the court
either by the husband or the wife on the ground that the respondent:
a) Has since the celebration of the marriage committed adultery
b) Has deserted the petitioner without cause for a period of at least three years immediately
preceding the presentation of the petition.
c) Has since the celebration of the marriage treated the petitioner with cruelty.
d) Is incurerably of unsound mind and has been continuously under care and treatment for a
period of at least five years immediately preceding the presentation of the petition.
e) Incompatibility ie inability of the husband and wife to live together.
EFFECTS OF DIVORCE

 Family disintegration
 Juvenile delinquency on the part of the children
 Emotional strains on both the spouses and children
 Drastic fall in economic and social status
 Divorce correlates to other social deviations and crimes e.g prostitution, drug abuse,
violence etc.
NULLITY OF MARRIAGE
The wife can present a petition for divorce on the ground that her husband has been guilty of
rape or bestiality since the celebration of the marriage.
Under the Matrimonial Act (Cap 152) either spouse may petition the Court for declaration that
the marriage is null and void on any of the following grounds:
vi) That either party was permanently impotent or incapable of consummating the
marriage at the time of marriage.
vii) That the other party (ie the respondent) has willfully refused to consummate
the marriage
viii) That the parties are within the prohibited degree of consanguinity or affinity
ix) That the former husband or wife of either party was living at the time of the
marriage and the previous marriage was still in force.
x) that the consent of either party to the marriage was obtained by force or fraud
xi) That either party was at the time of marriage of unsound mind or subject to
recurrent fits or insanity or epilepsy.
xii) That the other party was at the time of marriage suffering from venereal
disease in a communicable form
xiii) That the other party was at the tome of marriage pregnant by some person
other than the petitioner
The last three grounds can only be relied upon if proceedings are brought within one year and if,
at the time of the marriage, the petitioner was ignorant of the facts alleged; also there must have
been no marital intercourse since the discovery by the petitioner of the existence of grounds that
might lead to the decree of nullity.

A customary marriage is defined as a marriage celebrated according to the rites of an African

community and one of the parties to which is a member of that community.
Its the duty of the husband to maintain his wife and children. If the husband neglects to this then
his wife can obtain a maintenance order from court.
Every husband is entitled to his wifes consortium, ie he has a right of marital association with
her. Consortium includes companionship, love, affection, comfort, mutual services and above all
sexual intercourse.
CITIZENSHIP OR NATIONALITY
Nationality or citizenship refers to a persons political allegiance to some state in return for which
he is afforded protection by that state. The law relating to citizenship or nationality of Kenya is
contained in the Constitution of Kenya and the Kenya citizenship Act (Cap 170)
AQUISATION OF CITIZENSHIP
Citizenship can be acquired in four different ways:
1) BY BIRTH
Citizenship by birth is determined by the fact of being born in Kenya and also by the citizenship
of a persons parents or grandparents. All persons born in Kenya who on 11 th December 1963
were either citizens of the United Kingdom or British protected person s automatically become
Kenya citizens on the Independence Day (12th December 1963) if either of the parents had been
born in Kenya.
2. BY DESCENT
A person born outside Kenya after 11th December 1963 becomes a citizen of Kenya on the day of
his birth if on that day his father is a Kenyan citizen
3. By Registration

Any woman who marries a citizen of Kenya may apply for the registration and be granted
Kenyan citizenship. Similarly, a person of full age who is a citizen of a commonwealth country
or a specified African country who has been ordinarily resident in Kenya for five years may be a
resident in Kenya for five years may be registered as a Kenyan citizen upon making an
application for this purposes.
4. BY NATURALIZATION
Section 93 of the KENYA constitution Act provides that an alien may apply to be naturalized as
a Kenya citizen and he may be granted certificate of naturalization if:
a) He is of full age (twenty one years)
b) He has resided in Kenya for one year before the application
c) He has resided in Kenya for a total of four years during the seven years before the one
year period in paragraph (b)
d) He is of good character
e) He has an adequate knowledge of Swahili language
f) He intends to remain a resident
Loss of Citizenship
There are two ways in which citizenship may be lost.
6. By Renunciation- a citizen of Kenya who is also a citizen of some other country,
is free to renounce his Kenya citizenship but he may do so only if he is of full age
and capacity.
7. By Deprivation- deprivation applies to only to those citizens who acquired Kenya
citizenship by registration or naturalization. a person may be deprived from
citizenship in the following cases:
a) He has shown himself to be disloyal or disaffected towards Kenya
b) Has, during a war in which the country was engaged, traded with or otherwise assisted
the enemy.
c) Has resided continuously abroad for seven years and has neither been in service of Kenya
or an international organization of which the country is a member, nor registered annually
at a Kenya consulate his intention to retain the citizenship.

d) Has obtained his registration or naturalization by fraud, false representation or

concealment of a material fact.
DOMICILE AND RESIDENCE

A persons domicile is the place where he permanently resides with an intention to remain. Mere
resident is not enough. Aminus manedi, i.e the intention to permanently remain, must be
established.
In order to establish the domicile of a person, the following two elements are taken into
consideration.
a) Actual residence
b) Aminus manedi ie the intention to remain in that place or country.
Where these two elements co-exist, a person is said to have a domicile in that country. eg a
Ugandan citizen may decide to live permanently in Kenya. In this case, the Ugandan acquires the
domicile in Kenya.
There are three types of domicile;-
1. Domicile of origin- A person acquires domicile of origin at birth. A legitimate child

inherits its father’s domicile, an illegitimate one its mothers and under common law a
foundling (an abandoned child) has its domicile of origin in the country in which it was
found.
2. Domicile of Choice- A man acquires a new domicile by taking up his fixed habitation in
a country which is not that of his domicile of origin. He is then said to have acquired a
domicile of choice, where upon his domicile of origin is relinquished. He may however
later resume his domicile of origin. A domicile of choice continues until a former
domicile is resumed or until another domicile is acquired. eg a Kenyan may decide to live
in Tanzania permanently, in this case he acquires Tanzanian domicile though he remains
a Kenyan citizen.

3. Domicile of Dependence- domicile of dependence is also sometimes described as

dependent domicile. A person is said to have this kind of domicile if his domicile
necessarily changes with that of another person on whom he is dependent. a woman
acquires the domicile of a husband on marriage. An infant acquires the domicile of his
father.
A place where a person lives, whether permanently or temporarily, is his residence. A persons
residence determines his liability to taxation and his status in war time.
LAW OF SUCCESSION
Introduction:
The law of succession regulates the transmission of property on the death of a person. In the
event of death it becomes necessary to determine who is entitled to succeed or inherit the
property of the deceased, who is to be the guardian of the deceased children if they are
minors and who is to administer the estate of the deceased.
There are two types of succession:
Testate (testamentary) succession
When a person dies leaving a valid will, he is said to have died testate. A will is a legal
declaration by a person of his wishes or intention regarding his affairs or the disposition of
his property after his death.
Intestate succession
When a person dies leaving no will or if any will has been made that has been made is invalid,
the law of succession will stipulate how his estate would be distributed among his dependants.
N/B
In the will the testator appoints the person to take charge of the estate and fulfill the deceaseds
wishes as contained in the will. This person is known as the executor or executrix in case of a
female. The person making a will is known as a testator (or testatrix) in case of a female.

CAPACITY TO MAKE A WILL
 Any person who is of sound mind and not a minor can make a will.
 A woman whether married or single has the same capacity to make a will as a man.
 Any person making a will is presumed to be of sound mind whether caused by mental or
physical illness, drunkenness. The burden of proving that the testator was not of sound
mind lies on the person who alleges it.
 A will or any part of a will will be void , if the making of it has been caused by fraud,
coercion or has been induced by mistake. The capacity to make a will can be
compromised of affected by old age, illness, blindness or illiteracy. It is therefore
advisable for such a will to be attested by a doctor.
 A will should be read over to the testator before execution.
Requirements of a Valid Will
a) Oral will
No oral will shall be valid unless:-

 It is made before two or more competent witnesses
 The testator dies within a period of three months from the date of making the will.
b) Written will
No written will shall be valid unless:-

 The testator has signed or affixes his mark to the will, or it has been signed by some other
person in the presence and by the direction of the testator.

 The signature or mark of the testator or the signature of the person signing for him must
be so placed that it appears that it was intended thereby to give effect to the writing as a
will.
 The will is attested by two or more competent witnesses each of whom must have seen
the testator sign or affix his mark to the will.
PERSONAL REPRESENTATIVE
The term personal representative refers to the executor or administrator of a deceased persons
property.
Duties of Personal Representative

 To provide and pay out of the estate of the deceased, the expenses of a reasonable funeral
for him
 To gather all the free property of the deceased, including debts owing to him and moneys
payable to his personal representative by reason of his death.
 To pay out of the estate of the deceased, all testamentary expenses and all other
reasonable expenses of the administration
 To ascertain and pay out of the estate of the deceased all his debts
 Within six months of the date of grant, to produce to the court a full and accurate
inventory of the assets and liabilities of the deceased and a full and accurate account of
all the dealings therewith up to the date of such account.
 After confirmation of the grant, to distribute or to retain on trust, as case may be all
assets remaining after payment of expenses and debts.
 Within six months after the date of confirmation of the grant, or such longer period as the
court may allow, to complete the administration of the estate in respect of all matters
other than continuing trust, and to produce to the court a full and accurate account of
such complete administration.

Failure of Legacies and Devices

a) Disclaimer
This occurs when a beneficiary refuses to take the gift bequeathed to him. The law cannot force a
person to take an estate against his wishes.
b) Lapse
A gift can fail because the beneficiary died before the testator. This is known as doctrine of
lapse.
c) Ademption
A specific devise or bequest can fail because the property in question was no longer in existence
at the time of the testators death.
d) Abatement
When the estate is not sufficient to satisfy the debt and legacies in full, general legacies must be
pro rata.
e) Uncertainty
This can arise because the testator has not made his meaning clear in his will
f) Illegality
A gift for an illegal purpose or contrary to public policy will also fail.
Provisions for Dependants
 The wife, wives and children whether or not maintained by the deceased immediately
prior to his death.
 The deceaseds parents, step parents, grandparents, grand children and other children who
were being maintained by the deceased prior to his death.
 Where the deceased was a woman, her husband if he was being maintained by her
immediately prior to the date of her death.

EMPLOYMENT LAW (LABOUR LAW)

This is the law that governs the relationship between the employer and the employee.
 An employer is a person who provides an opportunity to another to perform specific
duties with regular/periodic payments.
 An employee is an individual who receives a regular/periodic salary or wages and is
subject to internal regulations.
CONTRACT OF EMPLOYMENT
 This is an agreement between an employer and employee to do a particular job for a
specific period of time with specific pay or money.
 It can either be in writing or not but the fact of agreement is evidenced.
 Its advisable that any contract of employment be in writing. Employment contract must
contain the following:
1. Name of the parties

2. Amount to be paid
3. Date of commencement of the work
4. Hours of work
5. Place of work
6. The period in which the contract ends
7. The place and time of payment

DUTIE OF EMPLOYER
1. Duty of Respect- the employer must work in good faith towards his employees
2. Duty of payment (remuneration)- an employer has a duty to pay salaries or wages even if he
doesnt provide work as long as the employee is in employment
3. Safety of work- the employer has a duty to make sure that his workers are safe at the place of
work.
4. Indemnity the employer has a duty to pay back the employees any money that is reasonable
incurred in the course of employment.
5. Provision of work once and employee is employed, he has the right to work, and should not
be discriminated at the place of work.
6. Provision of leaves- an employer should give every employee at least an annual leave with
full pay.
DUTIES OF EMPLOYEES
1. Duty of obedience- in employment one party gives the order and the other party obeys, an
employee has a duty to obey orders. In case an employee willingly refuses to obey the orders
of the employer, this is turned as a breach of contract and the employee may lose his job as a
result
2. Duty of competence- an employee is expected to do his work with reasonable skills and
knowledge as per the training. He has the duty to perform all the duties he had applied for.
3. Duty of care- employees are expected at all times t do their work carefully to avoid damages.
4. Duty of good faith- employees are expected to do their work with honesty, integrity and
avoid situations where their personal interest affects their work.
TERMINATION OF EMPLOYMENT CONTRACT

Ways in which a contract of employment may end;
i) Agreement – this is where the parties are entitled to enter or leave agreement
by mutual consent and this agreement separates them from any activity.
ii) Lapse of time- if the contract is for a given period of time, the contract comes
to an end of stipulated time.

iii) By notice- any party to the contract who wishes to terminate the contract, can
by giving the other party notice of a given number of months.
iv) Dismissal- this is where individual is involved in an activity or a vice that is
contrary to the signed contract.
Factors Leading To Summery Dismissal

a) Absenteeism from work without permission
b) Absconding of duty during work
c) Intoxication during work
d) Inability to perform the duties allocated
e) Disloyal to the authority
f) Proving confidential information to the competitors
g) Imprisonment for more than one month.
v) Frustrations- is where there is a fundamental change in the circumstances of
making the contract which causes all activities to come to a standstill eg death
of one party, imprisonment of an employee etc
vi) Redundancy- this is where due to economic factors in excess
labour/employees may lose their jobs and as a result their contract is
terminated
EMPLOYMENT ACT
This is the law related to terms and conditions of employment.
According to employment act (cap 226) of the law of Kenya, this act contains conditions of
employment and the basic requirements of the master (employer) and the servant (employee) that
will enhance their relationship. The law is meant to protect the relationship between the
employer and employee.
MAIN PROVISIONS OF THE ACT

i) The employer must pay all the wages and salaries due to his employees
ii) Employer should provide reasonable medical facilities to the employees

iii) Any contract of service for a period of six months or more should be in
writing
iv) In case of death of any employee, the employer should pay all the amount due
to the employee up to the date of his death
v) The employer is required by law to give a certificate of service if an employee
leaves his job after working for more than one month.
vi) The employer should provide housing facilities to the employee as per the
contract agreement
vii) Employer should keep proper records of all the employees
viii) All the employees are entitled to annual leave not less than 21 days with full
pay.
ix) If the employee misbehaves, the employer has a duty to dismiss him
FACTORIES ACT
 The Act includes some provisions for health, safety and welfare of persons employed in
the factories and other places
 The Act came in operations in 1951
MAIN PROVISIONS
a) Health
b) Safety
c) Welfare
HEALTH
 This is provided in section 4 of the Act which states that employers should ensure that
workers health is maintained while in the factory.
 The following are the provisions under health;
i) cleanliness- every factory should be kept clean with good sanitation for effective work of
the employees. Every floor should be cleaned at least once every week by washing or any
other means

ii) Overcrowding the place of work should not be overcrowded

especially in the rooms. Overcrowding can cause injuries to the
workers and other occupational diseases.
iii) Ventilation- every factory should ensure that there is adequate
ventilation in the room for circulation of fresh air.
iv) Lighting- every factory should ensure proper lighting and suitable
lighting in all the places
v) Drainage- all the floors should be designed in a way that when its
wet the water should be drained easily.
vi) Sanitary convenience- all the factories should have separate
sanitary locations for all the female and male workers with adequate
lighting and ventilation
vii)
SAFETY
 Safety provisions are very important; each and every factory should ensure that the
following provisions are followed:
a) Fencing and machinery- all the dangerous machinery and parts of dangerous machines
should be well fenced so that the workers are not exposed to any danger.
 Machines should be covered to ensure that the workers are protected.
b) Inexperienced workers- any person working with any machine should have enough
skills and qualifications in handling that machine
c) Self- acting machines- any part of one machine that operates on its own should be
allowed to run with a distance of 18 inches from the fixed structure which are not part of
the machine
d) Lifting machines- all the L-machines like cranes, ropes etc should be strong enough
because they deal with heavy materials; thay should be made of strong materials as well.
e) Floors, stairs and means of access- all the factories should ensure that the floors, stairs
and other means of access are well maintained for smooth running of the factory
activities

f) Prevention of fire- every factory should ensure that all practical means of preventing fire
outbreak are in place so that any accident of fire can be contained within a short period of
time.
WELFARE
Every employer has a duty to provide the basic needs to all the employees;
Main Provisions
a) Supply of drinking water- every factory should make arrangements to provide and
maintain suitable point where workers can access drinking water
b) Washing facilities- every factory should provide adequate and suitable facilities for
washing. This should be kept in clean and suitable conditions.
c) First Aid- in every factory, there should be a first aid kit with enough equipment.
One first aid box/kit should serve 15 employees
d) Sitting facilities- there should be adequate sitting facilities especially for those
people who work while standing
WORKMANS COMPENSATION ACTS
a) Compensation for personal injury caused by an accident. An employer is liable to
compensate a workman if a personal injury is caused to him by an accident in the cause
of employment
b) Compensation for death- in case a workman dies and leaves the dependant who are
totally depending on him or her, they should receive a compensation 41 months earnings
or Ksh 29,000/= whichever is more.
c) Compensation in case of permanent total incapacity. In this case the workman is
compensated a sum of 44 months earnings. The amount should not be greater than
3800/= or less than 2000/=
d) Compensation in case of partial incapacity. In case of this the compensation should be;
 34 months earning in case of partial injury
 44 months earning in case of an injury which is not specified
 In the above cases the compensation is not greater than 3800/= or less than 2000/=
e) Compensation in case of occupational disease. These are diseases that occur due to
specific compensation. People employed in such occupations can experience such

diseases and therefore should be compensated. Compensation depends on the seriousness

of the disease.
Examples of occupational diseases.
 Asthma
 Repetitive strain injury
 Chronic and encephalopathy (dysfunction of the brain)
 Hearing loss due to noise
 Blood bone infection eg HIV, hepatitis B
 Air Borne Infection
 Spontaneous abortion
 Carbone monoxid

Legal Aspect in Social Devlopment Work-1

Uploaded by

Copyright:

Available Formats

Legal Aspect in Social Devlopment Work-1

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Legal Aspect in Social Devlopment Work-1

Uploaded by

Copyright:

Available Formats

eldoret technical training institute

LEGAL ASPECT IN SOCIAL DEVLOPMENT WORK

THE LAW OF TORT

LAW OF RELATING TO ORGANIZATIONS

eldoret technical training institute 1

eldoret technical training institute 2

eldoret technical training institute 3

eldoret technical training institute 4

eldoret technical training institute 5

particular accused. against the defendant

eldoret technical training institute 6

THE SOURCES OF KENYAN LAW

Sources of Kenyan law

1. The Constitution of Kenya

eldoret technical training institute 7

2. Legislation (statutory) law-(Acts of parliament)

eldoret technical training institute 8

Legislation process in Kenya

eldoret technical training institute 9

3. Subsidiary Or Delegated or Indirect Legislation

eldoret technical training institute 10

The reasons/need for delegated legislation

Criticism or Disadvantages of Delegated Legislation

Control of delegated legislation

eldoret technical training institute 11

INTERPRETATION OF THE STATUTE

eldoret technical training institute 12

4. English common law

COMMON LAW COURTS

eldoret technical training institute 13

5. African customary law

6. Judicial precedents/the case law

eldoret technical training institute 14

TECHNIQUES OF PRECEDENT /PRINCIPLES/MAXIM

eldoret technical training institute 15

eldoret technical training institute 16

3. Detailed:- every principle of law or equity is discussed at length in a series of judgment

eldoret technical training institute 17

The hierarchical organization of the courts in Kenya

eldoret technical training institute 18

Industrial & High court Land &

Chief Magistrate Kadhis Court

Principal Magistrate RESIDENT MAGISTRATE

2nd Class District Magistrate

3rd Class District Magistrate

eldoret technical training institute 20

eldoret technical training institute 21

eldoret technical training institute 22

TORT AND CRIME DISTINGUISHED

Tort of Strict liability

eldoret technical training institute 23

a) TRESPASS BY WRONGFUL ENTRY

eldoret technical training institute 24

b) TRESPASS BY REMAINING ON LAND

eldoret technical training institute 25

eldoret technical training institute 26

eldoret technical training institute 27

TRESPASS TO THE PERSON

eldoret technical training institute 28

eldoret technical training institute 29

Chief Magistrate Kadhis Court