Professional Documents
Culture Documents
Verifying affidavit: Verifying affidavit states that the averments made are true.
A divorce petition is also supported by a verifying affidavit.
Replying affidavit: Replying affidavits are filed in response to the facts raised
in the supporting affidavit. You file it together with a notice of motion.
Representative suits are suits filed under Order 1 Rule 8 where parties with the
same cause of action seeking the same relief/remedy from the respondent
institute a suit under one or more plaintiffs (but not all of them) are allowed to
sue and the judgement affects them all. It prevents multiple suits on the same
matter being heard individually.
The tarquand rule states that people transacting with a company believe that
internal matters are handled properly and cannot inquire as to how the property
is run - Royal British Bank v Turquand
set off
counter claim
defence
5. What is the nemo dat principle?
Nemo dat non quod habet principle is a Latin maxim which means that you
cannot give that which you do not have. In a nutshell, the principle affirms that
you cannot pass good title to a third party if you are not the owner of the goods.
The principle aims to protect the rights of the true owner of the goods as well as
bonafide purchasers.
Damages
Specific Performance
Rescission
Repudiation
Addition
Provided for under Order 5 Rule 21. You may serve a foreigner as long as
he/she is in the commonwealth. You will serve through the High Court
You will seek leave of the court first with an application made by way of
chamber summons supported by an affidavit. You will then tell the court the
mode of service to use.
General damages are those damages that can’t be easily assigned a monetary
value e.g. pain and suffering.
Set off is used as a shield to the plaintiffs claim. For instance if you sue me for
100 bob then I file a defence stating that you also owe me 100 bob, then the
debts would just cancel out hence setting off.
Counter claim - under Order 2 Rule 11, if you have a claim against the plaintiff,
the defendant has the option of instituting another proceeding if it can be settled
in the same suit without delay or inconvenience
Garnishee proceedings are those where one has a decree but property of the
judgement debtor (the person who lost the case and judgement was passed
against) is not in his hands but in the hands of a third party. The procedure
instituted by the decree holder against the third party holding the property is
referred to as garnishee proceedings
• Health Act
• Presidents Awards Act
• Prevention of Torture Act
• Clinical’s Officers Act
• Public Service Commission Act
• Division of Revenue Act
• Appropriation Act
• The Legal Metrology Act
• Kenya Trade Remedies Act
• The Election Laws
• The Insurance Act.
• Breastfeeding Mothers Bill 2017
4. Constitution of the:
Supreme Court - Chief Justice, Deputy Chief Justice and 5 other judges
headed by the Chief Justice (Article 163)
(i) Prevention -
(ii)Preparedness - this is a continuous cycle of planning, organising training on
activities on response to disaster
(iii) Response -It includes mobilisation of necessary emergency services and
respond to the disaster
(iv) Recovery - The ai is to recover and restore the affected area to its
previous state.
(v) Mitigation - Efforts taken to prevent hazards from developing into disasters
• Direct discrimination
• Indirect discrimination
• Multiple discrimination
• Equal opportunity and differential treatment.
(i) Clear
(ii)Concise
(iii) Concrete
(iv) Correct
(v) Coherent
(vi) Complete
(vii) Courteous
7. What provision of Occupational Health and Safety Act have on safety and
security?
All the above is subject to the Public Procurement and Asset Disposal Act.
(i) Too much movement to the department from other departments in relation to
the centralised work
(ii)Boredom and monotony of work
(iii) Uniform procedures encourages lack of flexibility in the work done.
(iv) High number of messengers needed to distribute work to the user
offices.
(v) It takes long to retrieve documents from a central office
(vi) High probability of misplacing documents due to high volume records
(vii) There tends to be no accountability incase of mistake.
(viii) (viii) High risk of loss in the event of a distorter eg fire
(ix) Lack of exposure to other departments and senior executives; may
hinder growth.
Uberrimae fidei contracts are contracts of utmost good faith. The word
uberrimae fidei or uberrimae fides is Latin for ‘utmost good faith’. A good
example of uberrimae fidei contracts are insurance contracts. At the foundation
of these contracts are utmost good faith between the insured and the insurer.
Third party proceedings arise where a defendant in a suit claims against any
person who is a co-defendant or who is not a party to the proceedings that the
latter is or may be liable to the defendant for all or any part of the plaintiff’s
claim against the defendant.
Substantive law details the rights of parties in law whilst procedural law lays
down the process by which the right of parties are to be enforced.
5. Judicial Review steps (very examinable in exam and orals, pay special
attention to this)
The procedural law relating to judicial review is under Order 53 CPR and
requires an applicant to first apply to the High Court for leave to institute the
application for judicial review.
• Where leave has been granted, the applicant is required to file the substantive
application for judicial review with the High Court and apply for the orders
for which leave has been granted within 21days from the date the order for
leave is made.
• The application must be made by Notice of Motion.
• The Notice of motion must be served to all persons directly affected by the
application.
• All persons affected must be notified of the date set for hearing.
• A return of service must be filed before the hearing.
• The notice of motion must be accompanied by copies of the statutory
statements and copies of the affidavits which accompanied the application for
leave.
• Copies of any affidavits accompanying the application for leave shall be
supplied on demand, and no grounds shall be relied upon or any relief sought
at the hearing except the grounds and relief set out in the said statement.
• However, the court may allow the said statement to be amended or use of
further affidavits to deal with new matters.
6. 5 types of injunctions
• Prohibitory injunction
• Mandatory injunction
• Interlocutory or temporary injunction
• Anticipatory injunction
• Perpetual injunction
• Interim injunctions
• Mareva injunctions
• Injunctions against the government to protect children rights.
Interlocutory or temporary injunctions - limited to apply for this only until final
determination by the court of the right of the parties.
Prohibitory injunctions - acts to refrain the defendant from doing certain things
• He has no interest whatsoever in the property except for his charges or costs
• That he has not colluded with either of the claimants and
• That he will be willing to surrender the subject matter to the court.
Order 51 Civil Procedure Rules provides for different kinds of applications that
can be done through Notice of Motions:
• Order 51 rule 1 CPR - All applications to court are by way of motion unless
expressly stated otherwise
• Application for a judgement order where there is an admission
• Application for summary judgment
• Application for stay of proceedings
• Whilst seeking the leave of the court to settle a matter out of court on behalf
of persons with disability
• Applications for lifting or variation of injunctions
(ii)Chamber Summons
• Cases related with contracts for sale of immovable property except where the
existence of the agreement and validity of the contract is in dispute
• Summons by mortgagee, mortgagor or others for relief such as redemption,
delivery by mortgagor etc
• Application for extension of time under the rules of the Limitation Act.
• Anything to do with Government Lands Act or Section 57 of the Registration
of Titles Act
• Application for reconstruction of court files
• Originating Summons can also be applied where specific legislations asks for
it e.g. application under limitation of actions, Advocates Act, matters of
adverse possession etc.
(iv) Petitions
This is the test applied to determine whether the accused person was sane at the
time of committing a crime.
The accused must have been labouring under a defect of reason caused by a
disease of the mind at the time he committed the offence. As a result of such
disease, he did not know what he was doing or did not know that what he was
doing was wrong.
A wrongdoer must take his victim as he finds him. Therefore, the fact that the
victim had a previous condition that made the injury more severe is not a
defence, even if an ordinary person in perfect health would not have suffered in
the same way. case on point R v Blaue
• Murder involves both intention (mens rea) and action ( actus reus) that causes
death.
• Manslaughter is causing death without intending to do so
• Plea of not guilty - it’s the formal admission in court as to the guilt by the
accused. The accused does not admit to the charge and trial has to proceed to
ascertain his or her guilt.
• Plea of guilty - the accused admits the charge therefore no need of trial.
• Plea of autrefois acquit - plea by the accused that they have previously been
tried of the same offence and acquitted of it.
• Plea of autrefois convict - the accused pleads that they have been convicted
of the same offence. This is based on the legal requirements that an accused
person should be subjected to double jeopardy.
• Plea of presidential pardon - president has power of pardon and once
exercised, the accused person cannot be charged of the offence they have been
pardoned.
• Plea as to limitation of time - an accused may plead that the charge is barred
by limitation of time and in effect prosecution will terminate. I.e. section
45(d) of the penal code provides that the offence of treason must be
prosecuted within 2 years of its commission.
8. What is a voire dire and how is it applied?
Voire dire is a mini trial within a trial. Its purpose is to carry out an
investigation of the admissibility of evidence during trial example the evidence
given by a minor
Causation involves establishing a link between the act of the accused person and
the result crime. It can be legal or factual.
• For legal causation, the harm must result from the culpable act. The
prosecution must prove that there was novus acts interveniens.
• Factual causation is established using the ‘But For Test’ look at the case of
R v White 1910 2 KB 124
Equivocal plea- where the defendant pleads guilty but says something
contradictory that indicates a defence.
The Kyoto Protocol was adopted in in 1997 in Kyoto. Kenya ratified it in 2005.
Its main objective is to stabilise greenhouse concentration in the atmosphere. It
sets mandatory and binding greenhouse emission limitation or reduction targets
for industrialised countries.
Countries trade emission quotas among themselves thus enabling them to meet
their emission target.
• prima facie means on the face of it or also upon first impression unless proven
to be otherwise.
• Can be used to describe how a client might have a prima facie strong case
Debentures are typically loans that are repayable on a fixed date, but some
debentures are irredeemable securities (these are sometimes called perpetual
bonds), which means that they do not have a fixed date of expected return of the
funds.
Debentures are therefore medium to long-term debt formats used by large
companies to borrow money.
• File a petition to court outlining the grounds under which you're asking for a
divorce.
• Petition should be made at least one year after celebration of the marriage.
• Petition should be accompanied by a verifying affidavit, notice to appear
(which should state that appearance is to be made within 15 days)
acknowledgment of service, list of witnesses, witness statements & list of
documents.
• After filing in court, you need to serve the respondent.
• Petition should be accompanied by notice to appear & acknowledgment of
• Service
• After respondent responds, petition takes effect.
• Process of serving respondent should be done by a court server to respondent
in person.
(i) Adultery
(ii)Cruelty
(iii) Exceptional depravity
(iv) Desertion for at least three years
(v) Irretrievable breakdown of the marriage
10. Is it ethical and morally appropriate to post what you have been asked
in orals to WhatsApp groups to other student who have not yet been
examined?(whichever your answer) why?
Note.
Question 10. Only needs 4 answers to avoid irrelevancy(2 for yes and 2 for
no)
On the 3strike principle if the 3rd strike is not a serious or violent crime, one
can appeal and have the sentence reduced or dismissed.
2. what happens when a plaintiff files a case and 2 years on he has not
appeared, what options are available to the defendant
The defendant can make an application for dismissal of a case for Want of
Prosecution, this is as per Order 17 Rule 2(3) of the Civil Procedure Rules 2010.
It's also a pre-requisite that such an application for dismissal must be brought to
the notification of both parties.
A judgement is the final decision made on the matter after both parties have
presented their case and have argued it out.
Judgement in default is made when one party fails to appear in court after being
served with the summons. It is also final but can be set aside if the other party
seeks leave of court by giving reasons for his non-appearance
Summary judgement is made by the judge by looking at the facts presented by
both plaintiff and defendant. And deciding that the plaintiff can't prove or the
defendant can't prove otherwise. This judgement is interlocutor
5. Suppose the time is of the essence clause lacks in the sale agreement
and the seller defaults in meeting their end of the bargain. What
remedies are available to the buyer?
The buyer can make an urgent application to the court. This is through
certificate of urgency, notice of motion and a supporting affidavit. He will then
accompany it with the plaint supported by the necessary pleadings.
Now, and this is what is important, the purchaser will seek the equitable relief
of rectification to include the element of time if he is interested in performance
of the contract, or orders of mandamus to compel the vendor to perform his end
of the contract.
Leading questions are usually those so framed as to suggest the answer sought.
Questions could also be deemed as leading if so framed as to assume the
existence of facts yet to be established.
As a general rule, evidence obtained by leading questions is not admissible and
witness shouldn’t be asked leading questions.
Exceptions:
The cab rank rule is the principle that an advocate is entitled to accept a clients
instructions subject to limited exceptions
Exceptions
The term originated from London where the taxi cabs would form a queue
leading up to the rank and simply take the next passenger waiting regardless of
the distance they were traveling. Naturally, in the taxi business, the longer the
distance, the more lucrative the journey was.
Exceptions
Where there exists real or likelihood of conflict of interest.
When an advocate knows or has reason to believe that another advocate is
already acting for that particular client unless: the other advocate has given his
consent, the other advocate has refused to act further, client has withdrawn
instructions from the other advocate upon proper notice to him.
Where the advocate may have been consulted by the other side.
Where the advocate lacks the necessary expertise or experience to conduct the
case competently on behalf of the client.
When client can not afford the fee.
The trial advocate may refuse to take up instructions from a client on his own
motion or an opposing counsel can apply for an advocate to be disqualified
from a conduct of a matter.
8. 10 maxims of equity
(i) He who seeks equity must do equity
(ii)Equity is equality
(iii) He who comes to equity must come with clean hands
(iv) Equity looks at the intent rather than the form
(v) Equity acts in personam
(vi) Equity doesn't act in vain
(vii) Equity aids the vigilant not the indolent
(viii) (viii)Equity will not suffer wrong without remedy
(ix) Equity follows the law
(x) Equity looks upon as done and not which ought to be done
(xi) Equity abhors forfeiture
(xii) Equity doesn't complete an imperfect gift
(xiii) (xiii)Equity will not assist a volunteer
(xiv) (xiv)Equity will not allow a trust to fail for want of a trustee
(xv) Equity regards a beneficiary as a true owner
Elements
1. Wrongful intent
2. Overt act either levying war against the government or giving aid
3. Owing allegiance to the government
(ii) the deposing by unlawful means of the President from his position as
President or from the style, honour and name of Head of State and
Commander-in-Chief of the Armed Forces of the Republic of Kenya; or
Ejusdem generis is latin word meaning "of the same kind". It is used to
interpret loosely written statutes. Where a law lists specific classes of persons or
things and then refers to them in general, the general statements only apply to
the same kind of persons or things specifically listed.
3. 7 social sins
Resealing a grant by a Kenyan - If its a Kenyan who dies abroad, his domicile
determines where he should apply for a grant. But if he generally resides in
Kenya, then the grant would be applied for in Kenya.
Commonwealth countries allow applications for resealing in any of its
Countries.
The grant is then issued by the High Court.
The issued grant is filed and minuted.
The notice to the Kenya Gazette issued.
If there are no objections then letters are issued.
If it’s a foreigner who dies abroad but his property is in Kenya, a grant is
applied in his country of domicile and filed in the High Court of Kenya for
resealing. It must be a certified copy of the grant issued by foreign country. The
grant from the foreign country is then filed and minuted.
The notice to the Kenya Gazette is issued. If there are no objections, letters are
issued.
A grant given by the High Court can be used in the foreign courts for resealing.
The forms required are: Form P&A 81 or P &A 83- petition).
Form P&A 7- Affidavit…
One should then file together with the application; a certificate from the Estate
Duty Commissioner evidencing either the payment of all estate duty payable to
him or that they will be paid or that no such duty is payable.
true copies of the grant or power of attorney,
unless the registrar otherwise directs, a full inventory of the assets and liabilities
of the estate of the deceased in Kenya,
evidence of domicile of the deceased and proof of death as may be required.
Where there is no such objection the Court will order for sealing.
Procedure:
One should then file together with the application; a certificate from the Estate
Duty Commissioner evidencing either the payment of all estate duty payable to
him or that they will be paid or that no such duty is payable.
true copies of the grant or power of attorney,
unless the registrar otherwise directs, a full inventory of the assets and liabilities
of the estate of the deceased in Kenya,
evidence of domicile of the deceased and proof of death as may be required.
Where there is no such objection the Court will order for sealing.
Derivative actions were first established by common law in the case of Foss v
Harbottle and claims can now be brought under Part XI of the Companies Act
2015. Section 238 gives the meaning of derivative actions under the Act. An
application must be made to the court under Section 239(1) and the
requirements under Section 240 must be met.
The court may refuse permission for the claim under the reasons set out in
Section 241.
8. What is a prospectus
The Companies Act Cap 486 provides the prescribed information that should be
contained in a prospectus. That section of the old law is still relevant.
A prospectus is a document which sets out the advantages that accrue from the
investment in a company. It may be issued by a company or a promoter of a
company.
Order 2 rule 11 of Civil Procedure Rules states as follows: (3) Subject to sub-
rule (4), every allegation of fact made in a plaint or counterclaim which the
party on whom it is served does not intend to admit shall be specifically
traversed by him in his defence or defence to counterclaim; and a general denial
of such allegations, or a general statement of non-admission of them, shall not
be sufficient traverse of them.
Hearing date is a date given by the court to the parties of a suit for purpose of
the suit to be heard on that particular date.
Mention date on the other hand is a date given by the court to the parties of a
suit for either setting a hearing date or confirming compliance of orders given
by the court to the parties i.e filing of submission.
Bail is an agreement between an accused person or his sureties and the court
that the accused person will attend court when required and that should the
accused abscond, in addition to court issuing warrants of arrest, a sum of money
r property directed by the court to be deposited will be forfeited to the court-
according to bail and bond policy guidelines
Types of bail:
• Anticipatory bail
• Police bail
• Pending trial bail
• Pending judgement bail
• Bail pending appeal
Vitiating elements of a contract are those factors which make a contract void or
voidable. They include:
• Mistake
• Duress
• Misrepresentation
• Undue influence
• Illegality.
7. Name 5 different registries that searches are conducted in under
conveyancing
• Companies registry
• Survey departments
• County government
• Land registry
• Probate Registry
If you're client pleads guilty, you confirm if indeed the client did understand the
charges and consequences of pleading guilty. You inquire if the client had legal
representation in the first place. If not, the charges will be read a fresh and the
client pleads again. If it turns out that the client still pleads guilty, you can ask
the court to mitigate on the sentence. If also you are not satisfied with the
outcome of the case, there is an avenue for an appeal.