Table of Contents

TRIAL ADVOCACY...............................................................................................................1
PROF ETHICS.......................................................................................................................20
LEGAL WRITING AND DRAFTING................................................................................40
CIVIL LITIGATION.............................................................................................................48
CRIMINAL LITIGATION.................................................................................................138
CONVEYANCING..............................................................................................................219
PROBATE AND ADMINISTRATION.............................................................................284
COMMERCIAL...................................................................................................................341
LPM.......................................................................................................................................405
TRIAL ADVOCACY

What is the hierarchy of the courts in Kenya?

 Supreme Court: This is the highest court in Kenya and consists of the Chief Justice and
other judges appointed by the President. It has final jurisdiction in matters of
constitutional interpretation and serves as the final appellate court in the country.
 Court of Appeal: The Court of Appeal hears appeals from the High Court, as well as
certain other tribunals and courts. It has jurisdiction over both civil and criminal matters.
 High Court: The High Court is the main superior court in Kenya. It has unlimited
original jurisdiction in both civil and criminal matters and is divided into various
divisions, including the Constitutional and Judicial Review Division, the Commercial and
Admiralty Division, and the Family Division, among others.
 Employment and Labour Relations Court: This court deals with matters related to
employment and labor disputes.
 Environment and Land Court: This court deals with matters related to the environment
and land disputes.
 Magistrates' Courts: Magistrates' Courts are subordinate to the High Court and deal
with less serious criminal and civil matters.

How do you address a female judge, male judge, and your colleague?
 Female judge: "Your Ladyship" or "My Lady" followed by the judge's last name.
 Male judge: "Your Lordship" or "My Lord" followed by the judge's last name.
 Colleague: Use their professional title followed by their last name (e.g., "Mr. Smith" or
"Ms. Johnson").

How should legal professionals behave when they are in court and when interacting
with people?
In court, legal professionals, including judges, lawyers, and other court staff, are expected to
adhere to professional standards of conduct and behavior. This includes:
 Respect and courtesy: Maintaining a respectful and courteous demeanor towards the
court, fellow legal professionals, clients, and witnesses.
 Professional attire: Dressing in appropriate and professional attire, such as robes or
formal business attire, depending on the role and the court's requirements.
 Preparedness: Being well-prepared and organized for court proceedings, including
having a thorough understanding of the case and relevant legal principles.
 Punctuality: Arriving on time for court proceedings, respecting the court's schedule, and
avoiding unnecessary delays.
 Professional language: Using clear, concise, and respectful language when addressing
the court, clients, witnesses, and opposing counsel.
 Adherence to courtroom rules: Following the rules and procedures of the court,
including rules of evidence, decorum, and courtroom etiquette.

When interacting with people outside the courtroom, legal professionals should maintain
professionalism, confidentiality, and integrity. They should avoid discussing ongoing cases
outside of appropriate settings and should prioritize the ethical obligations of their profession.

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When interacting with people outside the courtroom, legal professionals should maintain
professionalism, confidentiality, and integrity. They should avoid discussing ongoing cases
outside of appropriate settings and should prioritize the ethical obligations of their profession.

What is the Advocates duty to the court?

In Kenya, as in many other legal jurisdictions, advocates have a duty to the court. The
Advocates Act, which governs the legal profession in Kenya, outlines the obligations and
responsibilities of advocates towards the court. The key duties of advocates to the court in
Kenya include:
 Honesty and integrity: Advocates are expected to act with honesty, integrity, and
maintain the highest ethical standards while dealing with the court.
 Courtesy and respect: Advocates must conduct themselves with courtesy and respect
towards the court, the judge, opposing counsel, witnesses, and other parties involved in
the legal process.
 Compliance with court rules: Advocates are required to have a thorough understanding
of the court rules and procedures applicable to their cases and ensure strict compliance
with them.
 Candor and fairness: Advocates must present their cases honestly and fairly before the
court, refraining from making false statements or misleading the court in any manner.
 Diligence and preparedness: Advocates have a duty to diligently prepare their cases,
including gathering evidence, researching relevant legal principles, and presenting
coherent arguments to assist the court in arriving at a just decision.
 Duty to assist the court: Advocates are obligated to assist the court in achieving justice
by providing relevant legal authorities, clarifying points of law, and helping the court
understand complex legal issues.
 Disclosure of authorities: Advocates must disclose to the court any relevant legal
authorities, including statutes, regulations, case law, and legal precedents that support
their arguments or may impact the outcome of the case.
 Duty not to mislead the court: Advocates must not misrepresent facts or law to the
court, nor should they knowingly rely on false evidence or suppress any relevant
information that could impact the court's decision.
 Compliance with court orders: Advocates are expected to promptly comply with court
orders and directions, respecting the authority and decisions of the court.
 Duty to maintain the dignity of the court: Advocates should conduct themselves in a
manner that upholds the dignity and decorum of the court, refraining from engaging in
any conduct that may undermine the integrity of the judicial process.
Dress appropriately – Appellant courts may require advocates wear gowns. The LSK has
issued guidelines that outline the expected attire for advocates during court appearances and
other professional engagements. While these guidelines are not legally binding, they are
considered as professional standards and are widely followed by advocates. The specific
guidelines may change over time, so it is important for advocates to stay updated with the
latest information provided by the LSK.

What are the duties of an advocate towards the client?

In Kenya, advocates have several duties towards their clients. These duties are established to
ensure the protection of the client's interests and to maintain a professional and ethical

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relationship between the advocate and the client. The key duties of an advocate towards the
client in Kenya include:
 Loyalty and confidentiality: An advocate must act in the best interests of their client and
maintain loyalty towards them. They are obligated to keep all information received from
the client confidential unless the client provides consent for disclosure or there is a legal
duty to disclose.
 Competence and diligence: An advocate must possess the necessary knowledge, skill,
and competence to handle the client's legal matter. They should diligently represent the
client by conducting thorough research, preparing legal strategies, and providing
competent advice.
 Communication and disclosure: Advocates have a duty to keep their clients reasonably
informed about the progress of their case and provide updates on any significant
developments. They should disclose all relevant information to the client, including risks,
costs, and potential outcomes, enabling the client to make informed decisions.
 Conflict of interest: Advocates must avoid situations where their personal, financial, or
professional interests conflict with the client's interests. If a conflict of interest arises, the
advocate must inform the client and either withdraw from representation or seek the
client's informed consent to continue representation.
 Zealous representation: An advocate is expected to zealously represent the client's
interests within the bounds of the law. This includes advocating for the client's position,
presenting strong arguments, and using legal means to protect and advance the client's
rights.
 Honesty and candor: Advocates must be honest and candid with their clients. They
should provide accurate and truthful information about the client's legal position, the
strengths, and weaknesses of the case, and any legal risks involved.
 Fees and billing: Advocates must communicate their fees and billing arrangements
clearly to the client. They should provide a fair and reasonable estimate of costs, and any
changes or updates to the fees should be communicated promptly.
 Professional conduct: Advocates are expected to maintain a professional demeanor and
act with integrity, honesty, and courtesy towards their clients. They should adhere to the
professional rules and regulations governing the legal profession in Kenya.
 Separatee personal account and client account
 Maintain proper books of account.

How do you address a person who is not a believer while taking an oath?

 Alternative methods, such as making a solemn affirmation can be used instead of a

religious oath.
 This is in Section 15 Of The Oaths And Statutory Declarations Act. Every person,
upon objecting to being sworn and stating, as the ground of such objection, either that he
has no religious belief or that the taking of an oath is contrary to his religious belief, shall
be permitted to make his solemn affirmation instead of taking an oath in all places and for
all purposes where an oath is required by law, which affirmation shall be of the same
effect as if he had taken the oath.
 Section 16 states the Form of affirmation and says every affirmation shall be as follows:
I, A.B., do solemnly, sincerely and truly declare and affirm,” and then proceed with the
words of the oath prescribed by law, omitting any words of imprecation or calling to
witness.

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What are the professional and academic qualifications for an advocate?
 Degree in law from a recognized university.
 Completion of pupillage.
 Passing the Council of Legal Education Bar examinations or possessing other recognized
qualifications.
 Admission as an advocate of the High Court of Uganda, Rwanda, Burundi, or Tanzania.
 Practicing law for at least five years in a Commonwealth country and being a member of
a professional body.
 Exemptions may be granted by the Council of Legal Education under certain conditions.

How do you proceed as an advocate when the Court orders you to go for Alternative
Dispute Resolution (ADR)?
 Respect the court's order as an officer of the court.
 Matters may be referred to arbitration by agreement of the parties during the proceedings
or by the court's discretion.
 Parties should inform the court if they agree to take the matter to arbitration.

Give a brief account of the 'Initial client interview'.

 Definition: The initial communication with a client.
 Purpose: Source information and obtain proper instructions.
 Advocate asks questions to gather necessary facts and provide proper advice.
 Confidentiality is maintained to build client confidence.

What kind of questions are asked in re-examination?

 Re-examination is a retrieval process conducted after cross-examination.
 It is strictly restricted to matters that arose during cross-examination.
 The court may also ask questions to clarify points.

What is the difference between refractory and hostile witness?

In the legal context, there is a distinction between a refractory witness and a hostile witness.
Let's explore the differences between the two:

Refractory Witness: A refractory witness is a witness who is uncooperative or unresponsive

during their testimony. This type of witness may display a lack of willingness or reluctance to
provide information or answer questions. However, unlike a hostile witness, a refractory
witness does not actively oppose or contradict the party calling them. They may simply be
unhelpful, evasive, or unresponsive.
Characteristics of a refractory witness:
 Uncooperative or unresponsive demeanor.
 Reluctance to provide information or answer questions.
 Passive resistance rather than active opposition.
 May require additional questioning or efforts to elicit the desired information.

Hostile Witness: A hostile witness, on the other hand, actively opposes or contradicts the
party calling them. This witness displays a clear intention to undermine the case or discredit
the questioning party. They may provide answers that are intentionally false, misleading, or

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detrimental to the party calling them. A hostile witness may challenge the credibility of the
questioning party or present conflicting accounts of events.
Characteristics of a hostile witness:
 Actively opposes or contradicts the party calling them.
 Intentionally provides false, misleading, or damaging information.
 Challenges the credibility of the questioning party.
 May require cross-examination or intensive questioning to challenge their testimony.

What are the rules on taking evidence from a child witness?

 A child may serve as a witness and provide the necessary evidence that is required to
convict the accused person as long as the evidence is corroborated except in criminal
cases that involve sexual offences - Sec. 124, Evidence Act
 The question the cross examiner must ask themselves is “Does a child witness understand
the nature of an oath and the consequences that may be faced if the child gives false
testimony under oath?”
 In the Macharia v R case, it was stated that it is imperative that the examination into the
child's understanding is undertaken at the beginning of the trial.
 An efficient cross-examination may not be achieved before ensuring that the child
understands that he/she is under obligation to tell the truth.
 During cross-examination, an advocate has to take into account the age and sensitivity of
the child witness.

What is a voire dire and how is it applied?

A voire dire is a procedure used to determine the admissibility of evidence during a trial. It is
a mini trial within a trial. The purpose of a voire dire is to investigate the authenticity,
reliability, and relevance of the evidence in question. It is commonly used when there are
concerns about the admissibility of certain evidence, such as when considering the testimony
of a minor. The voire dire allows the court to make a decision on whether the evidence should
be admitted or excluded based on its credibility and legal considerations.

Can spouses testify against each other?

The general rule is that spouses cannot be compelled to disclose any information made during
the subsistence of a marriage. There are nevertheless some exceptions.

Section 127 Evidence Act Competency of parties and spouses.

(1) In civil proceedings the parties to the suit, and the husband or wife of any party to the suit,
shall be competent witnesses.
(2) In criminal proceedings every person charged with an offence, and the wife or husband of
the person charged, shall be a competent witness for the defence at every stage of the
proceedings, whether such person is charged alone or jointly with any other person:
Provided that—
(i) the person charged shall not be called as a witness except upon his own application;
(ii) save as provided in subsection (3) of this section, the wife or husband of the person
charged shall not be called as a witness except upon the application of the person charged;
(iii) the failure of the person charged (or of the wife or husband of that person) to give
evidence shall not be made the subject of any comment by the prosecution.

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(3) In criminal proceedings the wife or husband of the person charged shall be a competent
and compellable witness for the prosecution or defence without the consent of such person, in
any case where such person is charged—
(a) with the offence of bigamy; or
(b) with offences under the Sexual Offences Act (No. 3 of 2006);
(c ) in respect of an act or omission affecting the person or property of the wife or husband of
such person or the children of either of them, and not otherwise.

Section 130 Evidence Act Communications during marriage.

(1) No person shall be compelled to disclose any communication made to him or her during
marriage, by the other spouse; nor shall a person be permitted to disclose such
communication without the consent of the person who made it, or of his or her representative
in interest, except in suits between the parties to the marriage or in any of the cases referred
to in paragraphs (a), (b) and (c) of section 127(3) of this Act.

(2) In this section "marriage" means a marriage, whether or not monogamous, which is by
law binding during the lifetime of the parties thereto unless dissolved according to law, and
includes a marriage under native or tribal custom.

What is an opening statement?

An Opening statement [sometimes referred to as an opening argument] is a brief outline of

the case which simply states out the facts or overview of the case and the evidence to be
presented by either the Plaintiff's or the Defendant's advocate in a civil or criminal trial.

It is important to note that an opening statement is a road map to the trial and it should help
the trial of facts, appreciate the nature of the case and focus on key evidence, and as such it
should not be argumentative in nature.

The Opening statement is not supposed to be argumentative in nature but rather to only
provide context.

What is the purpose of an opening statement?

 The main objective for the opening statement is to present a clear overview of your case
and bring out reasonable and compelling evidence that will make a persuasive first
impression.
 Present a clear picture of the case-key facts, witnesses or any other important participants;
 Helps in persuading the court to support your case. An opening statement should also
give an opportunity to both advocates to present the cases in their favour, hence
persuading the Court to support their case.
 Opening statement also expresses confidence in a judge, hence creating a good rapport
between the judge and the Advocate.
 An opening statement is a brief presentation by parties. A brief presentation by parties
that we also help them eliminate any bias that the judge may have had.
 Appreciating the judge's capability to handle your case (jurisdiction of the court)
 Eliminating bias during the trial.

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Who makes an Opening Statement in court?

Each Party has the chance to make its opening statement before presenting evidence. Usually,
the party with the burden of proof in the case goes first in making the opening statement. In
civil cases the plaintiff will go first, while the criminal cases it will be the prosecution.

What is a sample outline of the opening statement?

a) Introduction: The introduction sets the stage for the case by briefly introducing the
advocate, parties involved, and the legal issue at hand. It also provides an overview of the
points that will be addressed in the opening statement.
b) Word picture/story: This section focuses on presenting the key facts of the case in a
compelling manner. It aims to create a vivid picture of the events that support the advocate's
theme. The facts that support the key elements of the case are emphasized, while
acknowledging any harmful facts without delving into them extensively.
c) Reference to key evidence: Here, the main items of evidence that support the word
picture are described. The advocate may highlight the credibility of certain witnesses and
outline the testimony they will provide. Additionally, important physical or demonstrative
evidence may be mentioned and presented to the judge.
d) Conclusion: The conclusion is a crucial part of the opening statement and should leave a
strong impression. It restates the theme and may reiterate the desired verdict that the advocate
will request at the end of the trial.

What are the DO’s and Don’ts of opening statements?

DO’S DONTS
Case theory: this is an account of the events that took Being argumentative
place recited just like a story in
order to bring out the facts of the case in a clear and
simple manner
Start strong; To accomplish this, consider beginning the Refer to inadmissible evidence
opening with a short statement that gives the judge a
capsule of the case in two to three dynamics statements.
Have a theme; A theme is an overall point that runs No theme or poor theme or poorly
throughout the presentation receiving reinforcement as articulated theme
different aspects of the message are presented. It is short,
simple concept that states a capsule of your case.

Go straight to the point. Too much detailed facts . Discussing

the evidence in depth
Tell a story; present word picture. Do not give unconnected facts.

Produce an Opening statement for the Desmond Peters case.

(i) Prosecutor

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"Good morning. your honor. My name is Serah Mulatya and I am the Prosecutor in the matter
of City of Hippo V Desmond Peters in which the accused has been charged with theft
contrary to section 268 of the Penal Code.

This is a case about a habitual offender finally getting caught in the act. On or about January
5, 2010, at about 3.30 p.m., Louisa, accompanied by her sister Theela Sing’ano finished
shopping in the market and decided to return home via Browns Road. They were walking
when they observed two young boys following them. Suddenly, Louisa's bag was ripped open
with a razor blade, and one of the boys pursuing them took it and ran with it. Luckily, one of
the prosecution witnesses, Mr. Said Mohammed went after the two boys. He captured one of
them and took him to the crime scene.

The perpetrator was none other than Desmond Peters, a confessed pickpocket who admits to
being charged with loitering and negligence before. He was positively identified by the
victim and confirms that he has a habit of stealing when he has no money for food. The court
should note that the stolen handbag had 900 kudu-bucks in it.

The prosecution will call three witnesses to the stand. First is Ms. Theela Sing’ano, the
complainant's sister, who was present at the time of the crime. She will testify in court about
the events that led to the loss of the complainant's handbag. The prosecution will welcome
the testimony of Said Mohammed, who chased after the young lads and caught up with the
accused. We shall also rely on Mr. Phiri's testimony of what he witnessed when he arrived at
the scene of the crime.

Mr. Desmond was at Brown's road at the time the crime was committed. He was seen
committing the crime. Coupled with his own confessions of stealing and breaking the law, the
prosecution will prove beyond reasonable doubt to this court that the accused, Desmond
Peters, is guilty of the charges pressed against him. Thank you, your Honor.

(ii) The Defense

"May it please the court. My name is Antonia Verna and I represent the accused, Desmond
Peters in this matter. This is a case of mistaken identity. My client has allegedly been
accused of theft, pursuant to Section 268 of the Penal Code.

On or about January 5, 2010 are that, Louisa Sing’ano and her sister were headed home from
the market along Browns Road when Louisa's handbag, containing jewellery and 900 kudu-
bucks was stolen by two boys. My client, present on the same road during the time of the
theft, was accused of the robbery and immediately arrested. My client denies stealing the bag
and identifies Mole as the prime suspect. It is crucial to note that the complainant confessed
that the handbag was stolen from behind, and thus was not able to recognize the perpetrators
of the crime. The complainant is also said to suffer from sight problems and she was not
wearing her glasses on that material day, which casts doubt on her ability to identify the
accused. Moreover, the accused was not in possession of the bag when caught.

I will call upon one Edwin Kwaza as the defense witness. In the written statement, he avers
that the accused did not rob Louisa of her handbag. He further adds that the boys who stole
the complainant's bag were wearing white t-shirts and brown pants. This is contrary to the
complainant's statement which states that one of the boys wore a blue t-shirt. Additionally,

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the prosecution witness Said Mohammed knows the accused and has a vendetta against the
accused's uncle, which have motivated him to fabricate the allegations against the accused
person. Indeed, there is no material evidence proving that the accused committed the offence.

Your honor, pursuant to Section 107 of the Evidence Act, the burden of proof lies with the
prosecution to prove beyond any reasonable doubt that the accused indeed stole Louisa's
handbag. We shall show to this court that the said burden cannot be discharged in respect of
the accused. Thank you, your honor."

Produce an Opening statement for the faith Mueni case.

(i) Sample opening statement for Faith Mueni

May it please the Court,

I am [Your Name], and I represent Faith Mueni, the petitioner in this case. The respondent in
this matter is Alphonce Muoki, represented by [Opposing Counsel]. Today, we come before
this honorable Court to request the allocation of Faith's rightful half of the Machakos farm
and to block the intended eviction by the respondent.
The facts we will prove are as follows:
i) Faith Mueni was legally married to Alphonce under Kamba customary law. ii) Faith made
significant contributions towards the purchase of the 13-acre farm in Machakos (LR No.
9999). iii) Faith is legally entitled to an equal share of the farm.
Your Honour, this case is about a promise broken, a dream ended, and a life shattered. My
client, Faith Mueni, is a devoted mother of three children: Sebastian, Stella, and Anne. She
has been married to the respondent for 13 years, during which time she dedicated herself as a
stay-at-home mom. The respondent, Alphonce, holds the position of District Education
Officer of Machakos District.
Allow me to take you back to the beginning, 13 years ago. Faith and the respondent met and
fell in love. They made the decision to live together and formalized their relationship through
a marriage under Kamba customary law. Two years into their marriage, and after the birth of
their first child, they jointly purchased a 13-acre farm near the Katumani Research Institute.
Although Faith did not make a direct monetary contribution to the farm's purchase, she
shouldered the responsibility of all family expenses, allowing the respondent to accumulate
enough funds for the purchase.
One year after acquiring the farm, at the respondent's request, Faith quit her job as a waiter
and moved to the farm. She dedicated herself to working on the farm, ensuring her family's
sustenance without relying on the respondent's support. In fact, the surplus harvest was sold
by the respondent, and the proceeds were used to build Faith's house on the farm.
Additionally, Faith started a successful dairy farm, using her earnings to cover all the family's
bills, including the children's school fees, enabling the respondent to comfortably pay off the
farm's mortgage.
However, once the respondent finished paying off the mortgage, he abruptly stopped
providing any financial assistance to Faith and the children. Furthermore, his behavior turned
verbally and physically abusive. His weekend visits became sporadic and eventually ceased
altogether. Later, Faith discovered construction taking place on her farm and learned that a
house was being built for the respondent's new wife. Confronting the respondent, she found
another woman claiming to be his wife. The respondent responded with hostility, ordering
Faith out and denying their marriage. Now, the same respondent who was once uplifted by
Faith's support seeks to evict her and their children from their only home of the past 13 years.

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Your Honour, we will present expert testimony from Mzee Nyamai, an 85-year-old friend of
Faith's parents who was present during her betrothal ceremony. The court will see
photographs of Faith's parents on the day of her betrothal, along with a picture from the
respondent's dowry negotiation party. These photographs, which the respondent himself
provided as a memorial of the ceremony, along with the testimonies of Mzee Nyamai, Jomo
Obama, and Faith herself, will leave no doubt that Faith was legally married to the
respondent.
Moreover, it will become evident that the respondent has shown little regard for his family.
Initially, he would only visit on weekends, but now he has completely abandoned them. Faith
will testify that she was solely responsible for the children's needs throughout most of their
marriage, attempting to alleviate the financial burden on the respondent. Reviewing the
pleadings will demonstrate that the respondent desires to terminate this marriage (which he
denies exists). As the facts will reveal, the respondent neither wants Faith as his wife nor
desires to take care of his three children. Yet, he does not want Faith to move on with her life
either. How selfish is that? It brings to mind the fable of the horse unable to eat its dinner
while the dog refused to move from the manger.
The respondent may contend that he single-handedly purchased the Machakos farm. He will
present a sale agreement indicating his sole ownership and the testimony of the seller, who
will claim no knowledge of the respondent's marriage to Faith. However, he conveniently
overlooks the fact that Faith's contributions were instrumental in financing the family's
expenses, enabling him to acquire the farm. The sale agreement fails to acknowledge Faith's
significant contribution. The seller, having had no contact with the respondent in years,
cannot deny Faith's marriage to him.
After relying on the respondent's promise of a lifetime together and dedicating 13 years of her
life to him, Faith stands on the brink of losing everything. For no justifiable reason. She and
her children face the threat of eviction from their only home and an uncertain future due to
the respondent's selfishness. Your Honour, we implore this court to grant a permanent
injunction, preventing the respondent from evicting Faith and her children from the farm.
Furthermore, we request this court to issue orders granting Faith her rightful equal share of
the Machakos farm.
Thank you, Your Honour.

(ii) Sample opening statement for Alphonce Muoki

May it please the Court,

I am [Your Name], and I represent Mr. Alphonce Muoki, the respondent in this case. We
firmly contend that the petitioner, Faith Mueni, has never owned or held the parcel of land
identified as L.R. No 9999 in Machakos. Therefore, she is misguided in seeking any orders
from this honorable court regarding the said land. We will demonstrate the following:

i) Mr. Alphonce Muoki was never married to Faith Mueni.

ii) All the contributions towards the purchase of the 13-acre farm in Machakos (LR No. 9999)
were made by Mr. Alphonce.
iii) Consequently, Faith is not entitled to any share of the farm.

Your Honour, the petitioner's side has just presented a sensationalized narrative intended to
tarnish the character of my client. It is not disputed that Mr. Alphonce Muoki was acquainted
with Faith Mueni. He acknowledges that they had a brief romantic involvement 13 years ago
and have a child together. In accepting his responsibilities, Mr. Alphonce, being a responsible

10
individual, willingly supported Faith and their child. It is unfortunate that the kindness
extended by my client has been misused to the extent that we find ourselves here today.
Thirteen years ago, Alphonce was an educated man working for the Ministry of Education,
making progress in his career. He met Faith, who was employed as a waiter, and they had a
brief romantic involvement that lasted for ten months. They were blessed with a son, and Mr.
Alphonce proudly bestowed his last name on the child, Sebastian Muoki. Eventually, their
relationship soured, but Mr. Alphonce remained responsible and proud of his son, continuing
to support them and making visits to Faith's home. Six months after their relationship ended,
Faith reached out to Alphonce, informing him that she had lost her job and was in need of a
place to stay. Relying on his kindness and sense of responsibility, Mr. Alphonce agreed to
accommodate Faith at his farm, allowing her to work the land without charging any rent.
There was a clear understanding that this arrangement was temporary until my client
established his own home on the farm. These details are contained in Mr. Alphonce's sworn
statement, and he will testify accordingly.
Your Honour, the petitioner claims that she has been married to my client for 13 years and
relies on the evidence of Mzee Nyamai, an 85-year-old friend of Faith's parents. Mzee
Nyamai describes himself as "the memory of the community." With all due respect, Mzee
Nyamai's faculties have undoubtedly declined with age. He was 72 years old when the
alleged traditional marriage ceremony between my client and Faith took place. It is possible
that, with the passing of time, Mzee Nyamai has become confused regarding the various
ceremonies he may have witnessed. In his sworn statement, he has already made the mistake
of stating that Faith has three sons, when in fact, she has a son and two daughters. Alphonce
is the father of the boy and takes sole responsibility for him.
The petitioner also relies on two photographs as evidence of my client's alleged marriage to
Faith. While we admit that the photographs are authentic, they lack proper dating, and the
photographer cannot appear before this Honourable court. We kindly request the court to
consider the rule requiring documentary evidence to be presented by its author.
Your Honour, the opposing counsel has attempted to preempt our case by highlighting what
we intend to rely on in proving that my client purchased the 13-acre parcel of land with his
own funds, without any contribution from Faith or any other party. I have confidence that this
Honourable court possesses a discerning eye for justice, capable of seeing through such
tactics. I will not fall into the trap of repetition, as it serves no purpose. Suffice it to say that
the entire transaction for the land is thoroughly documented, and at no point is Faith involved
in the transaction. We will present the sale agreement made between Alphonce and Mr.
Charles Muema as evidence. Conversely, the petitioner seems unable to produce any
documentary evidence supporting her claim of being a contributor to the farm's purchase.
The petitioner's counsel employs similar tactics of preempting weaknesses in their case.
However, Faith mentions in her sworn statement that she recorded her contributions in a book
allegedly taken by my client, which remains elusive. How convenient. I trust this court's
commitment to justice. Alphonce's kind-hearted nature has undoubtedly been tested over
these 13 years, and the final straw came when Faith audaciously entered his matrimonial
home and spread hurtful lies to his young bride, almost destroying their God-ordained union.
After all evidence is tendered and witnesses have testified, I respectfully request that this
court finds in favour of my client, dismissing the petitioner's case with costs. We rely on this
court's commitment to justice.
Thank you, Your Honour.

What is the examination of witnesses?

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 Examination-in-chief, is the first opportunity for the court of law to be able to assess your
witness. It is the first process of adducing evidence in Court from a witness under oath.
The evidence adduced in court by the witness can be in the form of a testimony or items
of evidence which include documents or objects.

 Examination-in-chief is covered under section 148-160 part iv of the Evidence Act.

Section 145(1) of the Evidence Act provides that examination of a witness by the party
who calls him shall be called examination-in-chief.

What is examination in chief?

An examination-in-chief is the questioning of a witness by the party who called that witness
to testify.

Section 145(1) EA Type of examination of witnesses.

The examination of a witness by the party who calls him shall be called his examination-in-
chief.

When conducting an examination-in-chief in Kenya, the following steps can be followed:

a. Begin by introducing the witness to the court, stating their name and occupation.
b. Ask open-ended questions to allow the witness to provide their account of the relevant
events or facts. It is important to ask questions in a clear and concise manner to elicit the
desired information.
c. Present any relevant documents or evidence to the witness and ask them to identify and
explain them if necessary.
d. Maintain a respectful and professional tone throughout the examination-in-chief, allowing
the witness to provide their testimony without interruption, except when necessary to
clarify or redirect the witness.
e. Conclude the examination-in-chief by asking the witness if there is anything else they
would like to add or if there are any further relevant details they wish to provide.

What is the aim of examination in chief?

1. Create a logical, complete and clear picture of the case

2. To introduce exhibits or support the evidence of another witness.

3. Shut down potential cross examination and thereby protect exposure of your witness.

4. To volunteer the weaknesses of the case.

What are the rules of examination in chief ( dos and don’ts)

ONE FACT - NON- LEADING QUESTIONS.

Section 150 EA Leading questions in examination-in-chief and re-examination.

(1) Leading questions must not, if objected to by the adverse party, be asked in an
examination-in-chief or in a re-examination, except with the permission of the court.
(2) The court shall permit leading questions as to matters which are introductory or
undisputed, or which have in its opinion been already sufficiently proved.

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 DOS DON’TS
Be specific Ask compound questions. One fact per
question.
Let the issues flow chronologically No leading questions
We use the famous 5W 's and 1H.
what, who, when , where, why & how

Explain the process of examinations in chief of expert witnesses.

An expert witness's role is to provide independent assistance to the court by offering

objective, unbiased opinions based on their expertise and supporting the judge or jury in
making their own judgment.

The process of examination-in-chief of an expert witness is outlined in four steps:

1. Introduce the witness and establish their expertise through questions about education,
experience, training, publications, and relevant awards or honors.
2. Connect the expert witness to the case by explaining the instructions given to them
and any actions taken or reports provided.
3. Elicit the expert's opinion by presenting their findings and conclusions based on their
examination or analysis.
4. Have the witness explain their opinion in simple, plain language, clarifying the
meaning, effect, and consequences of their professional opinion for the court's
understanding.
The duties and responsibilities of expert witnesses are also discussed, including the
requirement for independence, providing unbiased opinions, considering all relevant facts,
and communicating any changes in views or provisional opinions to the court and the
opposing party.

Can you conduct examination in chief of the following people:

Desmond Peters Case:

Said Mohammed

1. Could you please confirm your full name to the court?

2. Could you please tell the court to where you reside?
3. Could you kindly tell the court what you do for a living?
4. Where were you on the evening of the 1st of May 2010?
5. What were you doing at the time?
6. What did you witness?

7. Where did it happen?

8. Who was involved?
9. How are you able to positively identify who was involved?
10. What did you do after witnessing the incident?
11. Did you say anything to the parties involved?
12. What were the responses of the parties involved?
13. Why do you believe the accused was in fact guilty of the crime?

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 14. Do you have a personal relationship with the accused?
15. Can explain to the confirm why it would be ridiculous to claim you have a vendetta
against the accused
16. Are you positive that your recollection of events that happened on 1st of May 2010
are accurate.

Faith Meuni case

Mr Kilonzo

1. Could you please confirm your full name to the court

2. Could you please tell the court to where you reside
3. Could you kindly tell the court what you do for work
1. How do you know the complainant
2. How do you know the respondent
3. What is the relationship between the complainant and respondent
4. What is your role in the relationship between the complainant and respondent
5. Could you explain to the court how a marriage is held under Kamba customary law
6. What procedure did the complainant and respondent undertake
7. Could you kindly provide the court with the details of the exhibits you have provided.
8. Why are these exhibits important?
9. Can you kindly explain to the court why you are of the opinion the complaint and
respondent are married?

What is cross examination?

Section 145(2) EA The examination of a witness by the adverse party shall be called his
cross-examination.

The Constitution of Kenya 2010

 Article 50 - the rights of the accused are given which cross examination is one of them.

 50 (2) (i) - to be informed in advance of the evidence the prosecution intends to rely on
and to have reasonable access to this evidence

 50(2) (k) - the right of an accused person to be cross examined, when this right is denied
then the whole concept of a fair trial would lose meaning.

What is the aim of cross examination?

There are 3 aims of cross examination

 To elicit further facts which are favourable to the cross examining party;
 To test and cast doubt on the evidence given by the witness in chief;
 To impeach the credibility of the witness.

What are the rules of cross examination?

 You should prepare thoroughly in order to have a questioning strategy. This is through
research, reading of law, statute and case law.

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 You should listen - listen to what the witness has to say, listen to what court has to say
 Ask quality questions
 Ask short questions and use plain words.
 Break the cross examination into a series of logical progression to each specific factual
goal- that is using one question as a steppingstone to the next question.
 One new fact per question.
 Don't ask questions to which you do not know the answer.
 Use of effective impeachment techniques
 Don't ask questions that permit the witness simply to repeat his direct testimony
 Do not quarrel with the witness as that goes to courtesy.
 Use leading questions tactfully.
 Maintain control.
 Save the ultimate point of your cross for summation.

 Section 151 of the Evidence Act - leading questions may be asked in cross examination
questions using the verb “to be” - Are you. were you, can you, did you?
 Strongly suggest the expected answer: “it is right that the”.
 Avoid open ended questions.
ONE FACT, LEADING QUESTIONS

Explain the process of cross examination of expert witnesses?

 Cross-examination aims to elicit further facts, test the credibility of the witness, and cast
doubt on their previous testimony.
 Leading questions are allowed in cross-examination.

What is impeaching expert witnesses?

 As part of doing our cross examination we can impeach a witness.

 One of the reasons why we are doing across exam is to test the credibility of the witness,
not what they have said. But are they a credible witness at all.

Can you cross examine the following people:

What is objection and protesting in court proceedings?

 Protesting is the act of objecting or raising an objection.

 Objection refers to raising disagreement or opposition to a certain action or statement
during court proceedings. This objection is usually raised to challenge the admissibility or
relevance of evidence, the line of questioning, or any other procedural matter.
 When an objection is raised, the opposing party may have the opportunity to respond to
the objection. The presiding judge will then make a ruling on the objection, either
sustaining it (agreeing with the objection) or overruling it (disagreeing with the

15
 objection). The court's ruling determines whether the objection is valid and whether the
evidence or statement in question will be allowed or excluded from the proceedings.

Explain exhibits

 In civil cases, the parties are required to file their documentary evidence in court in
advance, and copies of the evidence should be exchanged between the parties. This is
specified in the Civil Procedure Rules 2010.
 In both civil and criminal cases, the presentation of exhibits is done during the
examination-in-chief of the relevant witness. The exhibits are introduced to support the
testimony of the witness and provide additional evidence to the court.
 The process of presenting exhibits involves several steps. First, the foundation for the
exhibit is laid by the counsel. The exhibit is then shown to the judge for marking and
identification. The opposing counsel has an opportunity to review the exhibit and raise
any objections. The witness is asked to identify and explain the exhibit. Finally, the
exhibit is formally tendered and marked by the court clerk.
 After the exhibit is admitted into evidence, it can be used by the presenting counsel to
support their case and provide additional information to the court.
 Objections to the production of exhibits can be raised on various grounds, such as
illegality of obtaining the exhibit, privilege, lack of relevance, failure to comply with
procedures and requirements, or the potential threat to state security.
 The challenges in the presentation of exhibits include the use of technology, where
electronic evidence may pose authentication challenges, and the need for preservation of
exhibits without compromising their validity and authenticity. Additionally, the release of
exhibits by the courts can be a challenge, as it may affect the income of the involved
parties.
 In Faith Mueni's case, possible exhibits may include a sketch plan of the shamba, a sale
agreement, photographs of family members, a map of the shamba location, a title deed, a
notice to vacate premises, and relevant letters or receipts.
 In Desmond Peters' case, possible exhibits may include a sketch plan, a photograph of a
purse, and any other relevant evidence that supports the case.
 Presentation of exhibits should be done in accordance with the rules of evidence and
procedural requirements, ensuring their relevance and admissibility. The opposing
counsel has the right to challenge the admissibility of the exhibits, and objections should
be raised in a timely manner, either orally or through a notice of motion application.
 Ultimately, the presentation of exhibits is aimed at providing additional evidence and
supporting the arguments made in the case, helping the court to make an informed
decision based on the available facts and evidence.

Explain presentation of exhibits in trial

 Categories of evidence: The material presented in court under the law of evidence falls
into three broad categories: oral testimony, documentary evidence, and real evidence.
 Exhibits encompass both documentary evidence and real evidence.
 Transformation of a document into an exhibit: A document in possession is transformed
into an exhibit through a process that allows the court to consider it as part of its
evaluation of the case's merits. This involves ensuring the document is relevant,
admissible, and produced by a competent witness.
 Considerations for admissibility: Various objections can be raised regarding the
admissibility of evidence, such as lack of relevance or admissibility under specific rules
of evidence.

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 Rules of evidence and admissibility: Evidence law includes rules related to primary
evidence, secondary evidence, public documents, private documents, best evidence, and
competence of witnesses. These rules determine the admissibility of different types of
evidence.
 Procedure for presenting exhibits: Whether it is the prosecution or defense, the procedure
for presenting exhibits in criminal and civil cases is generally the same, with some slight
differences due to Civil Procedure rules.
 Guidelines for presenting exhibits in criminal cases (based on case law and expert
opinions):
a. At the beginning of a criminal case, the court file usually contains the charge sheet or
information, with no requirement for filing evidentiary material in advance.
b. Steps for presenting exhibits:
i. Introduce the witness.
ii. Lay a foundation for the document by asking the witness questions related to its
content or nature.
iii. Make a transition statement to inform the court about presenting a certain document or
object.
iv. Show the document to opposing counsel as a matter of courtesy.
v. Authenticate the document by asking the witness relevant questions about its nature,
author, date, signature, etc
vi. Ask the witness questions about the content of the document or object, focusing on the
relevant facts in issue.
vii. Seek permission from the court for the witness to read or explain a critical part of the
document. viii. Ask the witness what they would like to do with the document, to which
they will typically respond by stating they want to produce it as evidence.
ix. Request the document be marked as an exhibit, usually identified by a prosecution
exhibit number. x. Retrieve the document from the witness and give it to the court
assistant for marking. xi. Record the exhibit in the court proceedings. xii. Note the exhibit
number for reference in the closing argument.
 Marked For Identification (MFI): In situations where the witness mentioning a document
is not the competent witness to produce it, the document can be marked for identification.
This allows the document to have some identity until the competent witness comes
forward, at which point it can be transformed into an exhibit.
 Importance of copies: It is advisable to have a copy of the original document in the
lawyer's file to avoid relinquishing the original to the court if it is not necessary.
 Exceptions for certain exhibits: In some cases, when the original document cannot be left
with the court, certified copies or relevant extracts may be used instead.
 Distinction between criminal and civil cases: The process for presenting exhibits in civil
cases may have slight differences due to Civil Procedure rules, but the fundamental steps
remain the same.
 Note on MFI numbers and exhibit numbers: The MFI number and exhibit number do not
have to be the same, and multiple exhibits may have the same MFI number
Explain Presentation of Exhibits in Civil Cases:
 Document filing requirement: In civil cases, it is now a requirement that certain
documents must be filed before a hearing can commence. These documents include a list
of all documents to be presented as evidence, along with copies of those documents.
 Systematic arrangement of documents: During pre-trial preparation, it is important to
arrange the documents in a bundle systematically and in chronological order, as much as
possible. This helps in presenting the documents in a coherent and chronological manner,
allowing them to tell the story of the case.

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 Objective of eliminating trial by ambush: The process of preparing the bundle of
documents and filing them aims to eliminate trial by ambush, ensuring that all parties
have access to the documents in advance.
 Reduced discovery process: The requirement of filing documents and serving them on the
other party reduces the need for extensive discovery procedures.
 Filing a document does not make it an exhibit: Merely filing a document in court does not
automatically make it an exhibit. It becomes evidence when the relevant witness testifies
about it.
Steps for presenting a document as an exhibit in civil cases:
a. Lay a foundation for the document by asking the witness relevant questions about its
content, nature, etc.
b. Make a transition statement to the court, referring to the document in the bundle by
page number and providing the witness with the original document.
c. Authenticate the document by asking the witness authenticating questions about its
content, keeping in mind the facts in issue and the purpose for presenting the document.
d. It is not necessary to ask the witness what they wish to do with the document in court.
e. After the witness has discussed the substance of the document, the advocate makes a
statement to the court requesting that the document be marked as the plaintiff's exhibit
number.
f. In civil proceedings, it is generally not necessary to physically hand over any
documents to the court on the day of the hearing, as the court already has them.
Exceptions may occur when the authenticity of the documents is in dispute.
g. Once the document is marked as an exhibit, it is considered evidence.

 Lawyers giving evidence: It is considered unprocedural for a lawyer to give evidence.

The role of the lawyer is to present the evidence through the witnesses, and the lawyer
should not physically handle or present the documents to the court in most cases.

Give sample questions to Louisa to produce those photographs.

1. Louisa could you please clarify for the court what was stolen from you?
2. You mention the purse was stolen, what did the purse look like?
3. Louisa, I am handing you a picture of the purse. Is this the purse you are
referring to?
4. Your Honor/ I like to offer this document as the next exhibit.

Look at officer’s sketch map and write questions and transition statements.

1. When you went back to the police statement what did you do
2. what else did you do
3. you mention a sketch map, what does the sketch map look like
4. What is nature of the document
5. Who is the maker a of the document or author
6. What was the date?
7. I am handing you a sketch is this the sketch map are referring to?

Who is an amicus curie?

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An amicus curiae, which means "friend of the court" in Latin, is a person or organization that
is not a party to a case but offers information, expertise, or legal arguments to assist the court
in reaching a decision. The role of an amicus curiae is to provide a different perspective,
additional insights, or alternative legal arguments to aid the court in its deliberations.

To participate as an amicus curiae in a case, permission or leave from the court is typically
required. Once granted, an amicus curiae does not present evidence or take part in the fact-
finding process. Instead, they focus on making submissions or presenting arguments on a
particular point of law relevant to the case. Their submissions aim to provide the court with a
broader understanding of the legal issues involved and to assist the court in making a well-
informed decision.
Importantly, an amicus curiae is not considered a party to the case, and therefore the court
does not have the power to issue adverse orders or judgments against them. This allows the
amicus curiae to provide independent and impartial input without being directly involved in
the outcome of the case.
Overall, the role of an amicus curiae is to offer a valuable perspective or expertise on a legal
matter, helping to ensure that the court has access to a comprehensive range of arguments and
information before making its decision.

What is the difference between an amicus curiae and an interested party?

An amicus curiae, as mentioned earlier, is a person or organization that is not a party to the
case but offers information, expertise, or legal arguments to assist the court in reaching a
decision. They provide a different perspective and additional insights without having a direct
interest in the outcome of the case.
On the other hand, an interested party is a person or entity that has a direct stake or interest in
the outcome of the case. They have a legal right or obligation that is affected by the court's
decision, and their rights or interests may be directly determined or impacted by the outcome.
The main difference between an amicus curiae and an interested party lies in their legal
standing and involvement in the case. An amicus curiae is not a party to the case and does not
have a direct interest in the outcome. They participate voluntarily to provide assistance and
perspective to the court. In contrast, an interested party is directly involved in the case due to
their rights, obligations, or interests being affected by the court's decision.
While an amicus curiae provides information or arguments to assist the court, an interested
party actively presents their own case, submits evidence, and seeks specific relief or
outcomes based on their legal rights or interests. They have a vested stake in the resolution of
the case and may have legal standing to directly advocate for their position.
In summary, an amicus curiae offers assistance and expertise to the court without having a
direct interest in the case's outcome, while an interested party actively participates in the case
due to their direct legal rights or interests being affected.

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PROF ETHICS

What us professional ethics for lawyers important

 Promotes respect to the profession

 Promotes discipline among members of the profession
 Promotes survival of the legal profession.

What are the objects and functions of the Law Society of Kenya (LSK)?

The objects and functions of the LSK are as follows:

 Assisting the government and courts in matters relating to legislation, administration
of justice, and the practice of law in Kenya.
 Upholding the Constitution of Kenya and advancing the rule of law and
administration of justice.
 Ensuring that all legal practitioners in Kenya meet appropriate standards of learning,
professional competence, and professional conduct.
 Protecting and assisting the public in Kenya on legal matters.
 Setting and continuously improving standards of learning, professional competence,
and professional conduct for legal services in Kenya.
 Maintaining and enhancing professional practice, ethical conduct, and learning
standards for the legal profession in Kenya.
 Facilitating legal knowledge acquisition through education and training programs.
 Representing, protecting, and assisting members of the legal profession in matters
related to their conditions of practice and welfare.
 Formulating policies to align the legal profession with the Constitution's principles,
values, and objectives.
 Facilitating the realization of a transformed, cohesive, accountable, efficient, and
independent legal profession.
 Establishing mechanisms for equal opportunities for all legal practitioners in Kenya.
 Protecting and promoting the interests of consumers of legal services and the public
interest through fair and transparent procedures for resolving complaints against legal
practitioners.
 Developing and facilitating training programs for legal practitioners.
 Carrying out other functions incidental to the foregoing.

What is the primary mandate of the Law Society of Kenya (LSK)?

The primary mandate of the LSK is to regulate the legal profession in Kenya and ensure that
lawyers adhere to high standards of professionalism and ethical conduct.

What are some of the specific functions of the LSK as outlined in the Law Society of
Kenya Act?

Some specific functions of the LSK include promoting the welfare of the legal profession in
Kenya, regulating the professional conduct of advocates, and facilitating legal knowledge
acquisition through education and training programs.

20
What are some examples of ethical standards governing the legal fraternity in Kenya?
Advocates act, lsk code of ethics, SOPEC, Judicial code of conduct, prosecutors code of
conduct
Responsibility, transparency, fairness, confidentiality, conflict of interest, competence and
diligence

What is the Law Society of Kenya (LSK)?

The Law Society of Kenya is a statutory body established in 1949 under an act of parliament.
It serves as the umbrella organization for all licensed and admitted lawyers in Kenya. Its
responsibilities include regulating the legal profession, promoting access to justice, upholding
the rule of law, and safeguarding the interests and welfare of the legal fraternity.

What are the objectives of the Law Society of Kenya (LSK)?

What role do bar associations play in promoting the rule of law and access to justice?

Bar associations, as organizations of lawyers, have a crucial role in promoting the rule of law
and access to justice. They uphold the standards of the legal profession by setting and
enforcing ethical standards, investigating complaints against lawyers through disciplinary
committees, and imposing sanctions when necessary. Bar associations also provide legal aid
and pro bono services to indigent clients, increase public awareness of legal rights and the
justice system, advocate for law reform, and work to promote the independence of the
judiciary and the legal profession. By these efforts, they contribute to ensuring a fair and just
justice system that is accessible to all.

What are the the relationships governed by legal ethics

 Advocate-client
 Advocate- advocate
 Advocate and court

What are the duties of an advocate?

The duties of an advocate in Kenya, as specified in Rule 9 of the Advocates (Practice) Rules
and Section 55 of the Advocates Act, include the following:
1. Duty to the Court: Advocates have a duty to act with honesty, integrity, and in a
manner that upholds the dignity and authority of the court. They must not knowingly
mislead the court or present false evidence.
2. Duty to the Client: Advocates have a duty to act in the best interests of their clients
and to represent them zealously within the bounds of the law. They must maintain
confidentiality and protect the privileged information shared by their clients.
3. Duty to Opposing Parties and their Advocates: Advocates must not engage in
conduct that is intended to harass or unnecessarily burden opposing parties or their
advocates. They should act with civility and respect in all interactions.
4. Duty to Avoid Conflicts of Interest: Advocates must avoid situations where their
personal interests or relationships could compromise their duty to act in the best

21
 interests of their clients. They must disclose any potential conflicts of interest and
seek the client's informed consent to proceed.
5. Duty to Uphold the Law: Advocates have a duty to uphold the law and promote the
administration of justice. They must not engage in conduct that undermines the
integrity of the legal profession or the justice system.
6. Duty of Candor and Fairness: Advocates must be candid and truthful in their
dealings with the court, clients, and opposing parties. They should not engage in
conduct aimed at misleading or deceiving others.
7. Duty of Competence: Advocates are expected to possess the necessary knowledge,
skill, and expertise to provide competent legal representation. If lacking competence
in a particular matter, they should either acquire the necessary competence or decline
representation.
8. Duty to Maintain Professional Independence: Advocates must maintain their
professional independence and not allow their judgment or loyalty to be compromised
by external influences, including those of their clients.
9. Duty of Professional Development: Advocates have a duty to continually update
their legal knowledge and skills to ensure competent representation. They should
engage in professional development activities, such as attending seminars and
workshops, to stay informed about changes in the law

Difference between duty of confidentiality vs privilege in communication?

This is provided in the Law Society code of ethics and the Evidence Act in Kenya. Both of
these provide that as an advocate you have a duty to make sure that any correspondence or
any dealings that you have with your clients are kept confidential.

Privilege is essentially communication that is determined to be of a certain level of

confidentiality under the law. Communication that is privileged include advocate client
communication, communication between spouses another, communication between an
advocate communication between organs of the government a things to do with parliamentary
proceedings or government agencies communications.

Duty of confidentiality implies that any information that a client divulges to an advocate in
the pendency of the advocate client relationship shall not be unreasonably divulged to third
parties.
Privilege in communication means that any information obtained from an advocate client
relationship without the express knowledge and/or authority from the client shall not be
admissible as evidence before any court or tribunal.

What is the diff between professional misconduct and professional negligence?

Professional misconduct and professional negligence are two distinct concepts related to
professional ethics and responsibilities. While both involve deviations from the expected
standards of professional conduct, they differ in their nature and implications. Here's an
explanation of each term:
Professional Misconduct: Professional misconduct refers to unethical or improper behavior
displayed by professionals in the course of their work. It involves actions that violate the
established standards, codes of conduct, or regulations governing a particular profession.

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Professional misconduct often involves intentional or deliberate acts that are considered
dishonest, fraudulent, or morally unacceptable. It may include actions such as:
 Fraud: Engaging in deceptive practices, misrepresentation of facts, or financial
impropriety.
 Conflict of Interest: Failing to disclose personal interests that may compromise
professional judgment or impartiality.
 Breach of Confidentiality: Revealing sensitive or confidential information without
proper authorization.
 Misappropriation of Funds: Improper handling or misuse of financial resources
entrusted to the professional.
 Abuse of Power: Exploiting one's position or authority for personal gain or to harm
others.
Professional misconduct typically warrants disciplinary actions, which may vary depending
on the profession and jurisdiction. These actions can include reprimands, fines, license
suspension or revocation, or even legal consequences.

Professional Negligence: Professional negligence, also known as professional malpractice,

occurs when a professional fails to exercise reasonable care, skill, or diligence in providing
services to a client or patient. It involves a breach of the professional's duty of care, resulting
in harm, loss, or damage to the recipient of the services. Professional negligence can arise
when a professional:
 Fails to meet the standard of care: The professional does not provide services at the
level expected by a reasonable professional in the same field under similar
circumstances.
 Makes errors or mistakes: The professional commits mistakes or overlooks critical
details that a competent professional would not have made.
 Acts negligently: The professional acts in a careless or reckless manner, disregarding
established protocols or guidelines.
 Fails to communicate adequately: The professional fails to provide clear and accurate
information to the client or patient, leading to misunderstandings or adverse
outcomes.
Professional negligence can occur in various fields, such as medicine, law, engineering,
architecture, accounting, and others. If a person suffers harm or damage due to professional
negligence, they may have grounds for a legal claim to seek compensation for the losses
incurred.
In summary, professional misconduct involves unethical or improper behavior, while
professional negligence refers to a failure to meet the expected standard of care, resulting in
harm or damage. Both can have serious consequences for professionals, but they differ in
terms of intentionality and the nature of the deviation from professional standards.

What is the difference between professional misconduct and un professional conduct?

Professional misconduct touches on the specific code of ethics. In Kenya there is the Law
Society conditions that set out how advocates are supposed to conduct themselves
professionally. This involves things to do with confidentiality, acting diligently. If an
advocate breaches any of those codes then they can be forwarded to the advocates
disciplinary tribunal. If it goes to the extent of breaching their duties to their clients then the
client can ultimately sue them in court.

23
On the other hand unprofessional conduct touches towards the internal rules of members of
the Law Society of Kenya. This involves things like how you dress, how you address the
court. These are things that may not necessarily be taken to the advocates disciplinary
tribunal, but you have essentially acted on professionally. Even if the consequences are not
very huge.

For both of them you can be taken to the advocacy disciplinary tribunal. But for
unprofessional couldn't conduct you cannot have your licence suspended. So for professional
misconduct the penalties are very huge to the extent that the advocates can even have their
licences revoked or even get their name struck out of the role of advocates

What is the cab rank rule?

 This originates from the overriding objectives. Under article 159 of the constitution of
Kenya 2010 one of the principles the court should comply with is that they offer and
administer justice to all parties irrespective of their status. The same applies for the legal
profession.
 The "cab rank rule" is a legal principle followed in some common law jurisdictions. It is a
rule that governs the professional conduct of lawyers and ensures that they provide legal
representation to clients in a fair and impartial manner.
 According to the cab rank rule, a lawyer who is available and competent to handle a
particular case must accept any brief (instruction) to appear in court, regardless of the
nature of the case or the identity of the client. The rule is derived from the notion that
lawyers are duty-bound to act as independent advocates and that every person is entitled
to a fair hearing before the courts.
 Under the cab rank rule, lawyers are expected to take on cases even if they personally
disagree with the client's cause, find it morally objectionable, or if it involves an
unpopular or controversial issue. The rule is intended to uphold the principles of access to
justice and equality before the law.
 There are limited exceptions to the cab rank rule. lawyers may refuse a brief if they are
unavailable due to prior commitments, if they lack the necessary expertise or experience
required for the case, or if accepting the brief would result in a conflict of interest.

What is the cab rank rule exceptions?

The cab rank rule is the principle that an advocate is entitled to accept a client’s instructions
subject to limited exceptions.
Exceptions
 Conflict of interest. Where the advocate may have been consulted by the other side.
 It is not in your area of specification.
 Time- you do not have enough time to effectively handle the client’s case due to
workload.
 The client has not given clear instructions.
 The client does not want to pay the required legal fees.
 If the fee offered is not a ‘proper one’
 Another exception will include where there exists another advocate who is acting for the
client in question. However, if the client terminates this prior engagement or such
advocate has withdrawn himself from the matter, the latter advocate is then at liberty of
taking up the matter.

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 Where the advocate lacks the necessary expertise or experience to conduct the case
competently on behalf of the client.

What is power of attorney ?

 A power of attorney is an instrument authorizing a person to act as the agent or attorney

of the person granting it.
 It can either be specific (Executed for a particular purpose), General In Kenya it is used to
allow another person to act in transactions including.

Sale of land,
Registration of intellectual property
Filing of law suits,
Signing off documents or
Opening a bank account
What are the requirements to make a power of attorney valid
- Full name and address of the donor and the donee
- Signed by both the donor and the donee and properly executed
- Stamped
- Registered under the Registration of Documents Act.

What are the different types of power of attorney?

A power of attorney (POA) is a legal document that grants someone else the authority to act
on your behalf in legal, financial, or personal matters. The person granting the authority is
referred to as the "principal" or "grantor," while the person receiving the authority is called
the "agent" or "attorney-in-fact." The agent can be a trusted family member, friend, or a
professional, such as an attorney.

 General Power of Attorney: This type of power of attorney grants broad powers to the
agent to act on behalf of the principal in various matters. It can encompass financial,
legal, and personal affairs, allowing the agent to make decisions and take actions on
behalf of the principal. It is not specific and it just states that I give this person powers to
do anything in respect of my property, children an bank account. It is not specific and
very general.
 limited power of attorney: This will limit someone from certain action. For example you
may say that this person may deal with all my properties except my bank account. So you
are limiting to certain matters.
 Specific Power of Attorney: A specicific power of attorney is more specific in nature
and grants the agent authority for a particular task or purpose. For example, the principal
may grant the agent the power to sell a specific property or manage a specific investment
on their behalf. This is limited to specific actions.
 Medical Power of Attorney: Also known as a healthcare power of attorney, this type of
power of attorney grants the agent the authority to make medical decisions on behalf of
the principal if they are unable to do so due to incapacitation. It allows the agent to work
with healthcare providers and make decisions about treatment options, medical
procedures, and other healthcare matters.

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What is a retainer?

This is the fee paid by a client to an advocate to represent the client whenever a matter arises.

The fee is for efficiency purposes, in that, whenever a matter arises, the advocate will be
available to represent a client. The following should be considered before signing a retainer
agreement:

 The agreement should be in writing for record purposes and evidence.

 Conflict of interest.
 Scope of engangement.
 The amount of fee should be clearly specified.

How do you terminate a retainer agreement?

To terminate a retainer agreement, there are various methods and circumstances that may
apply. Here are the common ways to terminate a retainer agreement:
 Notice from the Client: The client can terminate the retainer agreement at any time by
giving notice to the advocate. This termination can be effective immediately or according
to the terms specified in the notice.
 Completion of Specified Activity: If the retainer agreement was for a specific matter or
task, the agreement can be terminated upon the successful completion of that activity. For
example, if the advocate was retained for a property sale and the transaction is completed,
the retainer is considered terminated.
 Court Order: In some cases, a court may order the termination of the retainer agreement.
This could occur if there is a conflict of interest or if the court finds it necessary for the
advocate to withdraw from representing the client.
 Expiration of Time: If the retainer agreement was for a fixed period, the agreement
automatically terminates upon the expiration of that time period.
 Death of the Client: The retainer agreement is terminated by operation of law upon the
death of the client. However, if there is an estate involved, the advocate may continue
representation if appointed by the executor of the estate.
 Contract Becomes Illegal: If the purpose of the retainer agreement becomes illegal or
prohibited by law, the agreement is considered terminated.
 Loss of Capacity to Act: If either the advocate or the client loses the capacity to act, such
as the advocate being disbarred or the client becoming incapacitated, the retainer
agreement is terminated.
 Breach by Client: If the client breaches an express term of the retainer agreement, such as
non-payment or failure to provide adequate instructions, the advocate may terminate the
agreement.
 Fraudulent Activity by Client: If the advocate discovers that the client engaged in
fraudulent activity, the advocate can terminate the retainer agreement.
 Frustration of Retainer: If circumstances arise that make it impossible or impracticable to
continue with the retainer, the agreement may be frustrated and terminated.
 Withdrawal of Instructions by Client: The client has the right to withdraw their
instructions at any time, which effectively terminates the retainer agreement.
 Advocate's Withdrawal for Clear Reason: The advocate can withdraw from representing
the client, but it must be for a clear, definite, and express reason. The advocate is required
to provide a valid explanation for their withdrawal.

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What are the effects of a termination?

When a retainer agreement is terminated, whether by the client or the advocate, several
effects and considerations come into play:
 Duty to Act: In litigation matters, the advocate's duty to act continues until they are
formally removed from the record. Until that time, they are expected to fulfill their
obligations and responsibilities towards the client.
 Payment for Work Done: The estate of a deceased client remains liable to pay for work
done by the advocate up until the time of the client's death. This unpaid amount becomes
a debt that is payable by the estate.
 Retention of Documents: If the client discharges the retainer without just cause, the
advocate may retain the client's documents until their lien (a right to retain possession
until payment is received) is satisfied. The advocate has a right to hold onto the
documents until the client fulfills their payment obligations. The advocate cannot refuse
to release the documents if the client pays their outstanding fees.
 Return of File, Documents, and Funds: Upon termination of the retainer agreement, the
advocate is generally required to return the client's file, documents, and any funds held on
behalf of the client. However, this return is subject to the advocate's right to retain
possession until their fees and expenses have been paid (lien).

What is the difference between Advocates Complaints Commission (ACC) and

Advocates Disciplinary Committee (ADC)?
 ACC investigates complaints against advocates.
 ADC deals with disciplinary issues after a hearing by the ACC and makes orders for
punishment or costs.

Whether the judiciary can try an advocate instead of the Complaints Commission?
 Appeals from the ACC and ADC are made to the High Court.

You are aggrieved by the decision of the Advocates Complaints Tribunal. How do you
proceed?

 Appeals from the ACC and ADC are made to the High Court.

What is the difference between an advocate and a lawyer in Kenya?

In Kenya, the terms "advocate" and "lawyer" are often used interchangeably, but there is a
subtle difference between the two.
An advocate refers specifically to a legal professional who has been admitted to the Roll of
Advocates in Kenya. They have completed the necessary education and training, passed the
bar exams, and fulfilled the requirements of the Law Society of Kenya to be recognized as a
practicing advocate. Advocates are authorized to represent clients in court, provide legal
advice, and perform various legal services.
On the other hand, the term "lawyer" in Kenya is a broader term that encompasses both
advocates and other legal professionals, such as legal consultants, legal advisors, and legal
officers. While all advocates are lawyers, not all lawyers in Kenya are necessarily advocates.
Lawyers who are not admitted to the Roll of Advocates may still provide legal services, but
they may have limitations on appearing in court or performing certain legal functions
reserved for advocates.

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In summary, every advocate is a lawyer, but not every lawyer is an advocate. Advocates have
met the specific qualifications and regulatory requirements to practice as advocates in Kenya,
while the term "lawyer" encompasses a broader range of legal professionals.

Between duties to the court and duties to client which prevails?

In Kenya, it is recognized that the duty to court prevails over the duty to the client in
situations of conflict. Advocates are expected to uphold the dignity, integrity, and authority of
the court, even if it means acting contrary to their client's wishes or interests. This principle
ensures the proper administration of justice and maintains the integrity of the legal
profession.

Rondel v. Worsley [1969] 1 AC 191, emphasizes that a barrister's primary duty is to

promote and protect the best interests of the client fearlessly and by all proper and lawful
means, without regard to personal consequences. However, when there is a conflict between
the advocate's duty to the court and their duty to the client, the duty to the court takes priority.

Explain conflict of interest

A conflict of interest refers to a situation where an individual or entity has competing or

conflicting obligations, loyalties, or interests that may compromise their ability to act
impartially, honestly, or in the best interests of a client or other parties involved. In the legal
context, a conflict of interest arises when an advocate's personal or professional interests
conflict with their duty to act in the best interests of their client.
The case of King Woolen Mills Ltd and Anor v. Kaplan & Stratton Advocates
emphasizes the fiduciary relationship between a client and their advocate. The retainer
agreement establishes a confidential and trusted relationship, requiring the advocate to treat
any knowledge obtained during the course of representing the client as a secret and not
disclose it without the client's approval.
In situations where an advocate represents multiple clients in the same transaction or subject
matter, the duty to maintain client confidentiality and avoid conflicts of interest remains
paramount. While it may be convenient and cost-effective to engage one common advocate
for multiple clients, the advocate must ensure that any knowledge received from each client is
treated confidentially and not used to the detriment of any client's interests.
The principle of avoiding conflicts of interest is essential to maintain the trust, integrity, and
fairness in legal representation. It ensures that advocates prioritize their clients' interests and
avoid any personal, financial, or professional interests that may compromise their objectivity,
loyalty, or duty of confidentiality. By adhering to strict standards regarding conflicts of
interest, advocates can maintain the highest ethical standards and uphold the trust placed in
them by their clients.
Explain advocate client privilege

Advocate-client privilege, also known as attorney-client privilege, is a legal principle that

protects the confidentiality of communications between an advocate (lawyer) and their client.
It establishes a privileged relationship where clients can openly and candidly communicate
with their advocates, knowing that their discussions will remain confidential.

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Section 134 of the Evidence Act of Kenya addresses the privilege of advocates, specifically
regarding the disclosure of communications made to them by or on behalf of their clients.
The section states the following:
(1) No advocate shall, without the express consent of their client, be permitted to disclose any
communication made to them in the course and for the purpose of their employment as an
advocate, or to state the contents or condition of any document they have become acquainted
with during their professional employment, or to disclose any advice given to their client in
the course and for the purpose of such employment.

The purpose of advocate-client privilege is to promote trust and ensure that clients feel
comfortable disclosing all relevant information to their advocates. This privilege encourages
open and honest communication, which is crucial for effective legal representation. It allows
clients to share sensitive or potentially damaging information without fear that it will be
disclosed to others.
Under advocate-client privilege, the communication must meet certain criteria to be
protected. Generally, the following elements must be present:
 Confidential Communication: The communication between the advocate and the client
must be intended to be confidential. This means that the client reasonably expects the
communication to remain private.
 Legal Professional Relationship: The communication must occur within the context of a
legal professional relationship. It typically applies to formal engagements where an
advocate is providing legal advice or representation to a client.
 Legal Advice or Assistance: The communication must be for the purpose of seeking or
providing legal advice or assistance. It covers discussions related to legal matters, case
strategy, or any other legal advice sought by the client.

What is the importance of client advocate privilege?

Advocate-client privilege is considered a fundamental legal right and is protected by law in

many jurisdictions. It enables clients to have open and frank discussions with their advocates,
facilitating effective representation and ensuring that clients can make informed decisions. It
is essential for maintaining trust and confidentiality in the legal system, allowing clients to
have confidence in seeking legal advice and representation. However, it is important to note
that there are exceptions to advocate-client privilege, such as instances involving potential
harm to others or illegal activities, where the privilege may not apply.

What are the exceptions of client advocate privilege?

Section 134 of the Evidence Act of Kenya also provides exceptions to this privilege. It
states that the privilege of advocate-client communication does not protect from disclosure:
(a) Any communication made in furtherance of any illegal purpose.
(b) Any fact observed by an advocate in the course of their employment that shows that any
crime or fraud has been committed since the commencement of their employment, regardless
of whether their attention was directed to that fact by or on behalf of their client.
In summary, Section 134 protects the confidentiality of communications between advocates
and their clients, but it includes exceptions that allow for disclosure in certain circumstances
involving illegal purposes or the commission of a crime or fraud.

Why regulate advocate fees?

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Regulation of fees was meant to make the fees understandable, predictable, consistency,
adequacy to ensure that advocates are able to earn a decent living because otherwise fees may
would become inordinately low and so on and so forth. To make sure that advocates can
make a reasonable living from legal fees to avoid lawyers would just be charging less and
less and less until no one makes any money.

Who regulates advocates' fees?

Advocates' fees are regulated by the court, as advocates are officers of the court.

How are advocate fees regulated?

Advocate fees are regulated through the issuance of an order by the Chief Justice, known as
the Advocates' Remuneration Order.

What is the Advocates' Remuneration Order?

The Advocates' Remuneration Order is an administrative order issued by the Chief Justice,
which sets out the guidelines and scales for the remuneration of advocates.

What is the adequacy of remuneration?

The adequacy of remuneration refers to whether the fees set in the remuneration order allow
advocates to earn a decent living and if they are considered fair and reasonable.

How does fee regulation affect access to legal services?

Fee regulation aims to strike a balance between fair compensation for advocates and making
legal services accessible and affordable. It ensures that the fees charged do not hinder access
to legal services for individuals with limited financial means.

What is the role of fee regulation in consumer protection?

Fee regulation helps protect clients from excessive or unfair charges for legal services. It sets
guidelines and standards to prevent unscrupulous or exploitative fee practices.

Are there any competition law issues related to fee regulation?

Fee regulation should consider competition law to ensure fair competition among advocates.
It aims to prevent collusion or price-fixing and promotes fair competition in the provision of
legal services.

What are the Key areas to note in the Advocates (Remuneration) Order?

 Scale of Fees: The order specifies a scale of fees that outlines the maximum charges that
advocates can levy for various legal services. The scale covers different types of legal
work, such as drafting documents, attending court proceedings, and providing legal
advice.

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 Factors Considered: The order highlights certain factors that can be taken into account
when determining the appropriate level of fees. These factors include the complexity and
urgency of the matter, the amount involved, the skill and experience required, and the
results achieved.
 Taxation of Costs: The order provides provisions for the taxation of costs, which is the
process of assessing and approving the costs to be awarded in a legal proceeding. It sets
out the procedure and criteria for the taxation process, ensuring transparency and fairness
in cost assessment.
 Discretion of the Court: The order recognizes that in certain cases, the court has the
discretion to depart from the prescribed scale of fees if the circumstances warrant it. This
allows the court to consider unique or exceptional circumstances when assessing the
appropriate remuneration for an advocate's services.

What is the meaning of a fiduciary relationship?

What cases have involved conflict of interest of judges?

Home Pack Caterers v. The Hon. A.G. and Others: In this case, the issue revolved around
the recusal of Justice Ojwang in HCC 83/03. The plaintiff relied on a draft HIV/AIDS bill
developed by a Task Force, of which the judge was an adviser. The petitioner raised concerns
that the judge's involvement in the Task Force may have influenced their dispositions and
inclinations towards specific topics addressed by the Task Force. The petitioner argued that
this could compromise obtaining a fair hearing.

Kaplan & Stratton v. L.Z. Engineering Construction Limited and Others: In this case,
an application was brought to disqualify Justice Lakha, the presiding judge. The argument
was based on the fact that the judge had two luncheons with Mr. Esmail, creating a concern
of potential bias. The court examined various English sources and concluded that a judge
who has a direct financial or proprietary interest in any of the parties or is otherwise closely
associated with a party to the extent that they can be regarded as a judge in their own suit is
automatically disqualified.

Both cases highlight the importance of maintaining impartiality and avoiding conflicts of
interest to ensure fair and unbiased judicial proceedings. They demonstrate the scrutiny given
to potential conflicts and the need for judges to recuse themselves in situations where their
impartiality may be called into question.

What are the consequences of not having a practicing certificate?

The consequences of not having a practicing certificate as an advocate in Kenya can have
various legal and professional ramifications. Here are some possible consequences:
1. Inability to Recover Costs: Section 40 of the Advocates Act states that an unqualified
person cannot recover costs for anything done as an advocate. This means that if an
advocate does not have a valid practicing certificate, they may not be able to recover
fees or expenses for legal services rendered.

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 2. Inability to Maintain a Suit for Recovery of Costs: Section 31(1)(b) of the Advocates
Act further prohibits an unqualified person from maintaining a suit for the recovery of
costs. This means that an advocate without a practicing certificate may not have legal
standing to pursue a claim for costs.
3. Penalties and Disciplinary Proceedings: Practicing law without a valid practicing
certificate is a serious offense. An advocate who engages in such conduct may be
subject to penalties, including fines of up to Kshs 100,000 or imprisonment for up to 2
years for contempt of court. Additionally, the advocate may face disciplinary
proceedings before the Disciplinary Committee (DC) or the Court of Conduct (CC) of
the Law Society of Kenya.
4. Recovery of Money Paid: Any money received by an unqualified person for legal
services may be recoverable summarily by the party who paid it as a civil debt. This
means that the client or the opposing party can seek to recover the funds paid to the
unqualified advocate.
5. Striking Out of Pleadings and Fresh Proceedings: If a court discovers that an advocate
lacked a practicing certificate, it may strike out the advocate's pleadings or the entire
suit. In such cases, if the striking out of pleadings or the suit causes injury or prejudice
to an innocent party, they may be entitled to start fresh proceedings or seek damages.
6. Potential Legal Action for Damages: An injured party who suffers harm or loss due to
the actions of an advocate without a practicing certificate may have grounds to sue for
damages. This could include claims for professional negligence or breach of contract.
It is essential for advocates to ensure they possess a valid practicing certificate to lawfully
engage in the practice of law and avoid these potential consequences.

Equity Bank Limited V Capital Construction Limited & 3 others [2012] EKLR

What is the general rule regarding payment of costs in litigation?

The general rule is that the loser in a litigation case is responsible for paying the costs.
However, this rule is subject to the discretion of the court, which can determine otherwise.

Can the court order each party to bear its own costs?

Yes, the court has the discretion to order each party to bear its own costs, instead of making
the losing party pay the costs.

What are the different types of costs involved in litigation?

There are two main types of costs: party to party costs and client to advocate costs. Party to
party costs are payable by the losing side to the winning side and are determined by the court.
Client to advocate costs refer to the fees that each party is responsible for paying to their own
advocate.

Is it the losing party's responsibility to pay the advocate fees of the winning party?

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No, each party is responsible for paying their own advocate fees. Even if you win the case,
you are still obligated to pay your own advocate regardless of whether the losing party has
paid you.

Can full recovery of advocate costs be obtained through party to party costs?

In most cases, it is difficult to fully recover advocate costs through party to party costs. The
court may award a certain amount of costs, which may be less than what the advocate has
charged.

Who can be held liable to pay costs?

The losing party is usually liable to pay costs, but there are situations where an advocate may
be held personally liable to pay costs. For example, if the advocate causes delays or falsely
claims to be retained without having a client, they may be ordered to pay costs personally.

What is a lien?

A lien is the legal right of someone in possession of another person's property to retain that
property until certain demands are satisfied.

What is an advocate's lien?

An advocate's lien is an extraordinary right granted to lawyers to retain a client's property,

including crucial documents, until their bill for services and expenses has been paid.

What are the key characteristics of an advocate's lien?

An advocate's lien is a concurrent right that coexists with other creditor rights, it is based on
implied agreement, it is a passive right that requires no action, it is a possessory right that
applies to property in the advocate's possession, it arises at the termination of a retainer, and
it serves as security for payment of fees and expenses.

Can an advocate exercise a lien and pursue other legal actions simultaneously?

Yes, an advocate can exercise a lien while pursuing other legal actions, such as filing a bill of
costs or initiating a suit for recovery of fees. The right to exercise a lien is not waived by
asserting a claim for debt in legal proceedings.

Can an advocate use a lien to retain a client's money?

No, an advocate cannot use a lien to access or retain a client's money without the client's
specific approval. An advocate can only deal with the client's money as directed by the client.
What types of property can an advocate exercise a lien over?

An advocate can exercise a lien over documents, contracts, title deeds, pleadings, original
documents, share certificates, academic certificates, or any property or document of value to
the client.

Can courts order the release of documents held under an advocate's lien?

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Yes, courts have the power to order the release of documents held pursuant to an advocate's
lien if it is deemed necessary in the overriding interests of justice.

What is a retaining lien?

A retaining lien, also known as a general lien, is the right of an advocate to retain client
property already in their possession until their fees for professional services are paid. It is a
passive right that allows the advocate to withhold the property until payment is made.

What types of property can be subject to a retaining lien?

Any deed, paper, personal chattel, or money in a client account that belongs to the client and
came into the advocate's possession in the course of their engagement can be subject to a
retaining lien. This includes documents like bill of exchanges, cheques, policy of insurance,
share certificates, and letters of administration.

What is a particular lien?

A particular lien, also known as a specific lien, is the solicitor's right to ask the court to direct
that personal property recovered under a judgment or obtained through the solicitor's efforts
be held as security for their costs. It is a lien on the specific items or property that are the
result of the advocate's actions.

What distinguishes a particular lien from a general lien?

A particular lien is specific to the costs incurred in recovering or preserving the property in
the suit, whereas a general lien is a broader right to retain client property until all outstanding
fees are paid. A particular lien only applies to the specific matter for which the recovery or
preservation occurred.

What is a statutory lien?

A statutory lien is a right granted to solicitors by law to apply to the court for a charging
order on property recovered or preserved through their efforts in a suit or proceeding. This
allows the advocate to secure their taxed costs by charging the property as security for
payment.

What is the purpose of a retaining lien, particular lien, and statutory lien?

These types of liens serve as mechanisms for advocates to ensure payment of their fees and
expenses. They provide security and leverage to advocates by allowing them to retain or
charge property until their outstanding costs are satisfied.

When does the lien arise for a lawyer?

The lawyer's authority to claim a solicitor's lien arises when the retainer is terminated, either
by the client or by the lawyer for just cause, and some or all of the lawyer's accounts remain
unpaid. It occurs at the termination of the retainer when fees are outstanding.

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Who is entitled to claim the lien?

The right to claim the lien depends on the termination of the retainer and the status of the
lawyer's accounts. The lawyer is entitled to the lien if the retainer is terminated by the client
or the lawyer for just cause and the lawyer's accounts for legal services or costs remain
unpaid.

What property is covered by the general/retaining lien?

The general/retaining lien attaches to all deeds, papers, and personal property that, with the
client's approval, are received by the solicitor in their capacity as a solicitor during the course
of the professional relationship. It covers property that belongs to the client and came into the
advocate's possession in their role as an advocate.

Are there any limitations on the passive or retaining lien?

Yes, limitations exist. The lien does not apply when documents are delivered to a lawyer for a
particular purpose under a special agreement that does not provide for a lien. Additionally,
money paid to the lawyer for a specific purpose, where they become a trustee of the money,
is not subject to the lien. The lien only arises if the documents or money are left in the
lawyer's possession for general purposes.

Do superior rights to liened documents or property exist?

Yes, the lawyer's right to retain liened documents is not greater than the client's right. If a
third party has a superior interest or right to the client, the lawyer's ability to retain the
documents is subject to those superior rights or interests. The lawyer cannot retain documents
if the client does not have a right to retain them.

How long is an advocate supposed to hold the liened property? A: The advocate must take
steps such as filing a bill of costs, obtaining a certificate for the costs, and obtaining an
enforceable decree. Once a decree is obtained, it can be used as a basis for converting the
property into payment. The duration of holding the property depends on the legal process and
enforcement of the decree.

What are the arguments for the advocate's lien? A: The lien is considered the best solution for
remunerating a lawyer, as court processes for fee recovery are often inefficient. It prevents
"lawyer shopping", where clients accumulate bills with different lawyers and refuse to pay.
The lien provides leverage and incentivizes clients to pay to avoid inconvenience. It is seen as
a practical and effective remedy for lawyers.

What are the arguments against the advocate's lien? A: Critics argue that the lien allows
lawyers to damage their client's cause unless they pay disputed fees in full, which is seen as
unfair and akin to blackmail. It inflicts disproportionate harm on the client, and better
methods of fee collection are available. Some believe that relying on the lien can lead to lost
clients, increased costs, a bad reputation, and misplaced priorities. It is seen as detrimental to
both business and ethical considerations.

What a professional undertaking?

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 At the most basic level when we talk about undertakings in legal practise, it will be a
promise made by an advocate upon which the recipient (who receives that promise) is
entitled to rely and which depending on the circumstances, will bind that advocate or the
client or both the advocate from the client.
 An undertaking is an obligation that our lawyer pledges themselves or their clients to
honour.
What are the basic principles of undertakings?
 An undertaking is a clear declaration of intention made by an advocate in the course of
their practice, which is relied upon by the recipient. It can be given by any member of the
advocate's staff and binds the firm.
 Failure to honor a professional undertaking is considered prima facie evidence of
professional misconduct. The first remedy is typically to order the implementation of the
undertaking.
 An undertaking is generally enforceable only between the giver and the recipient. A third
party typically does not have the right to enforce the undertaking, except in exceptional
circumstances.
 In case of ambiguity, an undertaking is construed in favor of the recipient under the
Contra Proferentem Rule.
 An undertaking does not have to meet the formality of a legal contract to be enforceable.
 An undertaking remains binding even if it involves something outside the advocate's
control. Care should be taken to ensure that undertakings are limited to what can be
controlled.
 An advocate is responsible for honoring an undertaking given by a member of the
advocate's staff, whether admitted to the Roll of Advocates or not.
 In a partnership, if one partner gives an undertaking, all partners are responsible for its
performance.
 An advocate cannot avoid liability on an undertaking by claiming it would be a breach of
duty to the client.
 Conditional undertakings may be used to minimize risks for advocates, informing the
recipient if the conditions are not fulfilled.
 Enforcement of undertakings can be done by both the Law Society and the court.
 Undertakings should not be given as an inducement to secure a client's business.
 Seeking an undertaking that should not be given may be deemed professional misconduct.

What are contingency fees, and are they allowed in Kenya?

Contingency fees are a fee arrangement where the lawyer's payment is contingent upon the
outcome or success of the case. In other words, the lawyer only receives payment if they win
the case or achieve a favourable result for the client. These fees are typically a percentage of
the amount recovered or awarded to the client.

In Kenya, contingency fees are generally not allowed for advocates. The Advocates Act in
Kenya prohibits advocates from entering into contingency fee agreements with their clients.
This means that advocates in Kenya are not allowed to charge fees based on the outcome of
the case or the amount of damages awarded to the client. Instead, advocates in Kenya
typically charge fees based on time spent, the complexity of the case, and other factors agreed
upon between the advocate and the client.

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What are the different approaches to enforcing undertakings?
 Soft approach: This involves co-operation and negotiation with the party who received
the undertaking, such as extending the time for fulfillment or modifying the terms of the
undertaking.
 Tough approach: This involves taking disciplinary proceedings or court action to enforce
the undertaking.

What are the enforcement strategies for undertakings?

 Co-operation: Engaging in negotiations and seeking co-operation from the party who
received the undertaking.
 Written demand for compliance: Sending a written notice demanding compliance with the
undertaking within a specified time frame.
 Court proceedings: Initiating legal action through enforcement or contempt proceedings
to compel compliance with the undertaking.
 Action for damages: Filing a lawsuit to seek compensation for any losses incurred due to
a breach of the undertaking.
 Reporting to the Law Society: Reporting breaches of undertakings to the relevant legal
professional association for possible disciplinary action against the advocate.

What is the jurisdiction of the court in enforcing undertakings?

 The court has an inherent jurisdiction to regulate and supervise advocates as officers of
the court.
 The court's jurisdiction extends to matters concerning the conduct of advocates, including
the enforcement of undertakings.
 The court's jurisdiction is both punitive and compensatory, aiming to compel compliance
with undertakings and impose sanctions for breaches.
 The court may order compliance with the undertaking, even if it is delayed, as long as
there is a reasonable possibility of fulfillment.
 The court may order compensation for any loss suffered as a result of a breach of the
undertaking, even if compliance is still possible.
 If compliance is no longer possible, the court may compensate the aggrieved party for
their losses caused by the breach.
 The court has the power to punish advocates for breaches of undertakings under Section
57 of the Advocates Act.

Are advocates serving in the public sector subjected to the same rules as advocates in
private practice?
 No, advocates in the public service are subject to more onerous ethical and procedural
requirements than advocates in private practice.

What are the statutes that impact advocates in public service?

 The statutes that impact advocates in public service include:
o Specialized legal functions statutes for the judiciary, Office of the Attorney
General, Office of the Director of Public Prosecutions, and County Attorneys.
o General statutes applicable to the public sector, such as the Leadership and
Integrity Act, Ethics and Anti-Corruption Act, Public Officers Ethics Act, and
provisions in the Constitution on leadership and integrity.

What are the interesting things about being a public officer?

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 Public officers are bound by strong rules of conduct and ethics.
 They must adhere to principles such as professionalism, rule of law, no improper
enrichment, conflict of interest, and political neutrality.
 They are required to report improper orders, conduct private affairs away from the office,
and avoid misleading the public.
 Public servants are also subject to wealth declaration, anti-corruption laws, and
organizational codes of ethics.

What statutes and regulations apply to advocates in private practice?

 Advocates in private practice are governed by statutes such as the Advocates Act, LSK
Act, Advocates Disciplinary Committee Rules, and Advocates (Practice) Rules.
 They must also comply with the LSK Code of Conduct, Advocates Remuneration Order,
and Advocates Continuing Legal Education Regulations.

What statutes and regulations apply to prosecutors?

 Prosecutors are guided by statutes such as the Office of the Director of Public
Prosecutions Act, National Prosecution Policy, Prosecutor's Code of Conduct and
Ethics, Public Officers Ethics Act, and Anti-Corruption and Economic Crimes Act.
 They are also subject to constitutional provisions on the exercise of prosecutorial
powers and the rights of arrested persons.

What are the key provisions of the Office of the Director of Public Prosecutions Act?
 The Office of the Director of Public Prosecutions Act establishes the office and gives it
a mandate to institute and undertake criminal proceedings.
 The Director of Public Prosecutions (DPP) has the power to take over and continue
criminal proceedings and can discontinue proceedings with leave of the court.
 The DPP has a tenure of 8 years and can order the Inspector General to carry out
investigations.

What principles guide prosecutorial discretion and independence?

 Prosecutors must exercise their discretion within a framework of fairness, independence,
and objectivity.
 They should not be influenced by improper or undue influence and must perform their
duties on a non-discriminatory basis.
 Prosecutors should not use coercion tactics to obtain guilty pleas and must prosecute
cases diligently.

Are public officers required to hold a practicing certificate?

 Public officers, such as state counsel and prosecutors, are not required to hold practicing
certificates but still enjoy the same privileges and rights as advocates in private practice.
 They have the right of audience in court and can practice as though they hold practicing
certificates.

How are public officers expected to handle conflicts of interest?

 Public officers should avoid conflicts of interest and perform their duties professionally
and on a non-discriminatory basis.
 Personal prejudices or opinions based on factors like race, ethnicity, gender, religion, or
political views are illegal, unconstitutional, and professionally inappropriate.

Can prosecutors use coercion tactics to obtain guilty pleas?

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 No, prosecutors should not proceed with additional charges or use serious charges to
encourage accused individuals to plead guilty to lesser offenses.
 It is not their duty to obtain guilty pleas at all costs, but rather to prosecute cases
diligently.

What is the last topic you studied?

Advocate In Public Service and The Statutes That Impact The Profession

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LEGAL WRITING AND DRAFTING

What are the qualities of good writing?

 Proper use and choice of words.

 Proper construction of sentences and paragraphs
 Clarity in opinions and contracts
 Logical/systematic structure of contents
 Time should be specifically stated where it is of essence.
 Avoid spelling and grammar mistakes by proof reading
 Writing should be concise and complete.
 Un-necessary references and archaic stresses should be avoided.
 Punctuations must be properly used i.e., comma and full stop.

What are the rules of plain English?

 Sentences should be 20-25 words or less.

 Express one thought per sentence
 Use correctly grammar and punctuations
 Use single structures – avoid compound of words, negative language, passive voice
 Avoid use of redundant words.
 Use first and second person.

What are the 3 qualities of an effective piece of legal writing?

 Clarity: Clarity is crucial in legal writing to ensure that the intended message is easily
understood by the reader. Using plain English and avoiding excessive legalese or
complex jargon helps to make the writing accessible to a wider audience. For example:

 Active Voice: Using active voice rather than passive voice can significantly improve the
clarity and impact of legal writing. Active voice emphasizes the doer of the action and
provides a direct, engaging tone. For example:
Passive: "The decision was made by the court." Active: "The court made the decision."
The active voice in the second example clearly identifies the subject (the court) and
presents the action in a more straightforward manner.

 Organization and Structure: Well-structured legal writing employs appropriate

headings, subheadings, and paragraphs to enhance readability and comprehension. It is
essential to use paragraphs effectively, with each paragraph focusing on a specific idea or
topic. For example:

 By using clear headings and separating different topics into distinct paragraphs, the
organized example improves readability and enables the reader to navigate through the
content more efficiently.

 It's important to note that while nominalization and gender neutrality are considerations in
legal writing, they are not necessarily qualities of effective legal writing. Nonetheless,
here are examples for better understanding:

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 Nominalization: Nominalization refers to the conversion of verbs or adjectives into
nouns. While nominalization can sometimes be useful in legal writing, excessive use of it
can result in dense and convoluted language. Striving for a balance between using nouns
and verbs can aid in maintaining a clear and engaging writing style.
"The examination of the witness's testimony will be conducted by the prosecution."
"The prosecution will examine the witness's testimony."

 Gender Neutrality: Biased: Promoting gender neutrality in legal writing involves using
language that is inclusive and does not favor any particular gender. This includes
avoiding the generic use of "he" or "him" when referring to both genders. Instead,
employing gender-neutral language by using plurals, gender-neutral pronouns (such as
"they" or "their"), or rewriting sentences can help ensure that all individuals are
represented and addressed in an unbiased manner.

When we are drafting a legal opinion what should you consider?

We need to think about two things:

1. Who is your target audience?
2. What is your purpose

Why do we write opinions as lawyers?

Opinion writing is persuasive. It is fact based and therefore most of the facts will be
established at the interview level. But this must be reinforced by an understanding of the law
therefore the need for legal research. The legal research is about:

 Identifying the subject area.

 Identifying the area of law that will play a role in your problem-solving mission.

What is a legal opinion?

 An opinion is a written response based on a client's instructions to advise.
 It is a formal document written by an advocate which outlines their considered views on
the merits of a particular case or issue.
 A legal opinion is a document whereby an advocate must always consider that they will
be facilitating decision making, because the objective of writing the opinion is to lead
their client into the clearest possible understanding of the legal position of the case.
 Consequently, the client will be expected to and actually rely on the accuracy of this legal
opinion to make a decision.
 A legal opinion in most cases will facilitate your clients decision and therefore you must
be very sure about your legal opinion and don't be negligent in giving your advice

What are the ways of rendering legal opinions ?

They can take two forms each with its own structure and format ;-
 Letter – Target audience is a client (client may be another law firm requiring your legal
expertise in a certain area of law)
 Office Memorandum - This is an internal document. The target audience is a colleague
who is a fellow advocate (or staff within a law firm). Therefore, this is within an

41
 institution which operates in terms of practising law, or the mandate is issues regarding
the law.

What is the format of a legal opinion?

 Facts
 State the Issues
 State the Law
 Application/Analysis
 Conclusion

How does one respond to a demand letter?

When you responding to a demand letter the only two things you can:

Deny liability - When you deny liability (without prejudice).

 You need to ensure that your line of denying the liability comes out clearly and as you
deny you remind them that they need to discuss from any legal action.
 In the event that they do so you remind them that you are ready to actually defend the
suit.
 Denying is harder because you have to frame up an argument.

Admit liability - If you decide you're not going to deny liability you can select to admit
liability.
 The moment you select to admit liability it means you are taking the perspective that you
may need to embrace a bit of out of court settlements to avoid the matter going to court.
 Sometimes a demand letter maybe so persuasive that the recipient of the demand letter
realises that there is no need of being taken to court. You can just engage the law firm
that issue that demand letter into some sort of out of court negotiations.
 Here the tone changes stop out of court settlement.
 Admitting is easier because once you admit the only thing you require is to consider a
percentage of what your client is admitting and then propose for content to be laid out.

What is an office memorandum?

 You may need to render a legal opinion not to a client but to another advocate working
with you in a law firm or perhaps in an institution where there is a legal department. In
such a situation the document that you will be drafting is an office memorandum and not
a letter.
 If the target audience is a client then a letter is drafted, if the target audience is not a client
is this between an advocate to another within a law firm, then what you prepare is an
office memorandum.
 An office memorandum is an internal document used to analyse a legal problem
presented by a client and give an objective legal opinion.
 This is a document that is usually drafted by one council to another in response to a legal
question presented by a particular law firm.

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What are the basic rules of office memorandums?

 Ought not to be seen by opposing counsel, client or court. It is not a document that should
end up in court. That's why it is called an in-house document.
 But the purpose is the same you're giving an objective legal opinion. But because it is
internal or in-house it ought to remain in house and not be seen by external third parties.
 As it is in house you are likely to bring out the weaknesses of the clients case in a manner
that can expose this client. That is why it ought not to go to the opposing counsel. This is
because you are going to give it to the other lawyer who will then make the way forward.
 The lawyer looking at the document must make decision on what they will tell their
client. It has to be very thorough so the person who's reviewing this document when
talking to the client is going to feel very comfortable in giving this advice to the client.
 Should evaluate every significant aspect of the relevant rules of law and issues, case law,
the effect of the rules of law and the courts interpretations on the client's factual situation.

What are the similarities between a memorandum and legal opinion?

It ought to be very thorough to allow the person looking at it to make a decision. The
similarity between a memo and a legal opinion given to a client is that it facilitates decision-
making. It facilitates decision-making in that the end user would want to read it to make a
decision.

What is the format of an office memorandum?

1. Must be headed as follows:

"To... and "from". , the date and subject line.
2. Body
Ensure the body has a narration of the facts as you understand them from the instructions.

To: Senior Counsel

From: Junior Counsel
Date: (Date memo is submitted)
Re: XYZ client matter
ISSUE STATEMENT/QUESTIONS PRESENTED
(Frame the legal question that will be presented).
BRIEF/ SHORT ANSWER (Answer the question presented)
STATEMENT OF FACTS (factual story of the client's situation).
DISCUSSION (relevant law is evaluated & applied to the facts
of the client situation)
CONCLUSION(The possible outcome of client's case in regard
to your analysis of material facts that were based on the law.)

What are the Contents of a letter?

 Letter head - Name of the law firm, Physical Address of the law firm (sender at the top) ,
Contact details such as the senders email address and phone number

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 Date - Date at the top directly before the name of the addressee.
 Our Ref: (FILL IT) and Your Ref: TBA ( to be announced)
 Recipient information - Name & address of the recipient on the left hand side beneath
the sender's address.
 Address the party -When sending a letter to a particular person in a large organization,
make that fact clear by indicating to the "Attention of Mr, Ms, Mrs". The person's name
should stand out.
 Salutation - Dear Sir/ Madam: This is general but if you know the gender of the
recepient, use the appropriate term. In case of specific clients address them by their
name.e.g "Dear Mr. Kamau
 Subject line - The subject line should appear directly after the salutation. The function of
the subject line is to assist the reader identify the subject matter.
 Body of the letter
 Signing off - lf you use the salutation "Dear Sir "the signing off is "Yours faithfully". If
salutation is "Dear Mr. Kamau' " the signing off is' "Yours Sincerely”. (Less informal as
soon as you address someone by their name)
 CC your client

What is the Difference Between Active Voice and Passive Voice?

 Active voice - the actor follows the verbs
 Passive voice – the actor comes before the verb
 Active voice: In active voice sentences, the subject of the sentence performs the action
directly. The subject comes before the verb, emphasizing the doer of the action. Example:
"Patricia wrote the book."
 Passive voice: In passive voice sentences, the subject of the sentence receives the action
and appears before the verb. The emphasis is on the recipient or the result of the action.
Example: "The book was written by Patricia."

What are the contents of a demand letter?

A demand letter serves as a formal communication to assert a claim or request specific action
from another party. To ensure clarity and professionalism, the following contents are
typically included in a demand letter:

 Heading: Begin with a firm letterhead that includes the name, address, and contact
information of the law firm or sender.
 Reference: Include a reference number or title for easy identification and tracking of the
letter.
 Recipient's Address and Name: Provide the complete address and name of the recipient,
ensuring accuracy.
 Subject or RE: Clearly state the subject or purpose of the letter, such as "Demand for
[specific action/request]."
 Introduction: Start with a brief introduction, stating that you are representing the client
and have been authorized to act on their behalf. This establishes the authority and
credibility of the letter.
 Background: Provide a concise background of the matter, outlining the cause of action
or circumstances that have led to the need for the demand. This section should provide
enough context for the recipient to understand the issue at hand.

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 Demand: Clearly state the specific demand or action you are requesting from the
recipient. Be precise and unambiguous in your language. Explain the desired outcome and
the reasons supporting the demand.
 Timeframe: Specify a reasonable deadline within which you expect the recipient to
comply with the demand. This allows them a clear timeline for response or action.
 Consequences: Explain the potential consequences or legal actions that may follow if the
demand is not met within the specified timeframe. This helps convey the seriousness and
urgency of the matter.
 Sign-off: Conclude the letter with a professional and courteous closing, followed by your
name, designation, and contact information. For example, "Sincerely, [Your Name],
[Title], [Law Firm Name], [Contact Information]."
 Copy to Client: If necessary, indicate that a copy of the demand letter is being sent to the
client for their records or information. This ensures transparency and keeps the client
informed of the communication.

Difference between dissenting opinion and concurring opinion

A dissenting opinion and a concurring opinion are two types of opinions issued by judges in a
court case. Here are the differences between these two:
Dissenting Opinion:
 Definition: A dissenting opinion is written by a judge or judges who disagree with the
majority opinion, which is the decision reached by the majority of judges on the case.
 Purpose: The purpose of a dissenting opinion is to express a differing viewpoint on the
legal reasoning, interpretation of the law, or outcome of the case.
 Content: In a dissenting opinion, the judge(s) explain their disagreement with the
majority opinion, providing their own legal analysis and reasoning to support their
alternative view.
 Influence: A dissenting opinion does not form part of the majority decision and does not
have a direct legal impact on the outcome of the case. However, it can provide an
alternative perspective and may influence future legal interpretations or serve as a basis
for challenging or reconsidering the majority decision in subsequent cases.
Concurring Opinion:
 Definition: A concurring opinion is written by a judge or judges who agree with the
majority opinion, but for different reasons or with additional or alternative legal analysis.
 Purpose: The purpose of a concurring opinion is to express agreement with the outcome
of the case, while offering a different legal rationale or emphasizing specific aspects of
the case that were not addressed in the majority opinion.
 Content: In a concurring opinion, the judge(s) agree with the outcome of the case but
may provide their own legal analysis, reasoning, or emphasize specific points to support
the decision.
 Influence: A concurring opinion, like a dissenting opinion, does not directly impact the
outcome of the case. However, it can provide additional perspectives or legal arguments
that may be considered in future cases or influence legal discussions on related matters.

Difference between issue and holding

In legal writing and analysis, the terms "issue" and "holding" refer to distinct aspects of a
court's decision. Here are the differences between the two:
Issue:

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Definition: The issue is the central legal question or questions that the court needs to address
in a particular case. It identifies the specific point of law or controversy that the court is
required to resolve.

Purpose: The purpose of identifying the issue is to frame the legal question(s) that the court
must answer in order to reach a decision. It helps focus the court's analysis and guides the
parties in presenting their arguments.

Content: The issue statement should be a concise and clear statement that encapsulates the
specific legal question(s) at hand. It often begins with the phrase "whether" or "whether or
not" and identifies the key elements or factors that need to be considered.

Example of an issue statement: “Whether the termination of employment of the plaintiff was
in violation of Section 45 of the Employment Act, which prohibits unfair termination.”

Holding:
Definition: The holding, also known as the "rule of law," is the court's definitive answer or
decision on the issue(s) presented in the case. It is the binding legal principle that governs the
resolution of the particular case.
Purpose: The purpose of the holding is to provide a clear and authoritative statement of the
court's decision and the legal principles that underpin it. It establishes precedent that may
guide future decisions on similar legal issues.
Content: The holding is typically a concise statement that directly answers the issue(s)
presented in the case. It represents the court's final decision on the matter and sets the legal
precedent to be followed in subsequent cases.

Example of a holding statement:

The termination of employment of the plaintiff was found to be in violation of Section 45 of

the Employment Act, as the employer failed to provide valid grounds and follow the proper
procedures for termination. Therefore, the plaintiff is entitled to remedies including
reinstatement and compensation.

What are the 7 C’s of effective communication?

The 7 C's of effective communication are as follows:

 Clear: Communication should be clear and easy to understand. Use simple language,
avoid jargon or technical terms that the receiver may not be familiar with, and ensure
your message is conveyed in a straightforward manner.
 Concise: Keep your communication concise and to the point. Avoid unnecessary details
or lengthy explanations. Be mindful of the receiver's time and convey your message
succinctly.
 Concrete: Use specific and tangible language to make your communication more
tangible and relatable. Provide examples or specific details that help the receiver visualize
or understand the message better.
 Correct: Ensure that your communication is accurate and free from errors. Check for any
grammatical mistakes, verify facts and figures, and double-check the content to maintain
credibility and clarity.

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 Coherent: Ensure that your communication flows logically and is easy to follow. Use
proper organization and structure in your message, so that the receiver can comprehend
and follow your thoughts or ideas.
 Complete: Provide all the necessary information in your communication. Avoid leaving
out crucial details or assuming that the receiver knows certain information. Ensure that
your message is comprehensive and addresses all relevant points.
 Courteous: Maintain a polite and respectful tone in your communication. Use courteous
language, be considerate of the receiver's feelings and perspectives, and avoid any
offensive or derogatory remarks.

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CIVIL LITIGATION

What is the purpose and scope of client interviews

 It forms the advocate-client relationship.

 The advocate is able to learn of the client’s intentions - what do they want so that you
will be able to correct that.
 The advocate is able to elicit the facts as perceived by the client
 The advocate is able to afford a legal opinion for the client - they're supposed to create
that relationship so that you get what is the client intention so that you get to know get the
proper facts from these clients and then you can afford an opinion
 The advocate is able to formulate a course of action, upon instruction by the client –
is it a case should be settled in or outside court

What are the steps for conducting a client interview?

Preparation:
 Communicate with the client before the interview to gather initial information about the
case.
 Discuss fees and costs associated with the case.
 Reflect on any personal biases or prejudices that may impact your handling of the case.
 Understand the client's expectations and goals.

Rules on Commencing the interview:

 Make the client feel comfortable and welcome.
 Avoid intimidating or ego-centric displays.
 Engage in informal talk to break the ice.
 Ensure the interview space is comfortable and has necessary resources.
 Offer refreshments if appropriate.
 Minimize interruptions and distractions.

Information gathering:
 Encourage the client to tell their story in their own words.
 Actively listen without interrupting.
 Take notes and mark issues that require clarification.
 Summarize the client's story to ensure understanding.
 Seek clarification on unclear points.
 Maintain a non-judgmental approach and avoid confrontation.
 Ask for relevant documents or evidence.
 Identify potential defenses or witnesses.
 Assess the client's legal knowledge and address any gaps.
 Develop a case strategy based on gathered information.
 Identify potential conflicts of interest or ethical concerns.
 Determine if further consultation or investigation is necessary.
 Consider declining the case if appropriate.

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Discussion of fees:
 Discuss fees and cost estimates based on the case analysis.
 Explain how fees are calculated and the payment structure.
 Sign a fee agreement if possible.
 Secure a deposit or payment commitment.

Closing:
 Explain the planned course of action and the client's role in it.
 Discuss necessary steps, such as signing affidavits or providing additional documents.
 Schedule a follow-up meeting to update the client on progress.
 Show dedication and professionalism by putting in extra effort and maintaining regular
communication.
 Provide reassurance and keep the client informed of the case's status.

What are some types of questions that can be asked during a client interview?
 Personal Information
 Other Parties Involved
 Witnesses
 Events and Circumstances
 Desired Outcome
 Previous Advice and Assistance
 Existing Legal Proceedings
 Documentation and Evidence
 Opposing Party's Argument
 Client's Value as a Witness
 Transactional Interviews (in the context of transactions)
 Previous Consultations

What is client counselling?

Client counselling is a process in which an advocate provides guidance and support to clients
in legal matters. It involves actively listening to the client, discussing their concerns and
objectives, providing legal advice, and assisting them in making informed decisions.

What is the purpose of client counselling?

The purpose of client counselling is to help the client understand their legal situation, explore
available options, and make informed decisions. It aims to empower the client, guide them
through the legal process, and achieve their desired outcomes. The scope of client counseling
includes discussing legal rights and obligations, explaining potential risks and benefits,
providing strategic advice, and addressing any emotional or psychological concerns the client
may have.

What is the scope of client counselling?

The scope may vary depending on the specific circumstances of the case and the client's
needs. It can range from providing general legal information and advice to conducting in-
depth discussions about the legal implications of various options. Counseling may involve
addressing emotional and psychological aspects related to the client's legal matter, helping
them manage expectations, and providing support throughout the legal process. The extent of

49
counseling may also depend on the advocate's expertise, ethical considerations, and the
specific goals of the client.

What are the pre-trial considerations?

 Cause of action
 Limitation of actions (limitation of time)
 Feasibility of lawsuit
 Ethical considerations before taking up a case
 Ethical consideration after taking up a case
 There must be a court of competent jurisdiction. Jurisdiction (pecuniary, territorial
statutory & subject matter) appropriate forum to file the case
 Parties (natural persons, legal entities, minors, mentally incapacitated persons & deceased
persons)

What is a cause of action?

A cause of action is a legal theory or claim that forms the basis for a lawsuit. It is the set of
facts that, when proven, entitles a person to seek a legal remedy or relief in court.

To establish a cause of action, several elements must be present:

 Legal Right: The plaintiff must have a recognized legal right that has been violated by
the defendant. This can be a statutory right, a contractual right, or a common law right.
 Violation of the Right: The plaintiff must demonstrate that the defendant's actions or
omissions have breached or violated their legal right.
 Remedy: There must be a legal remedy available for the violation of the right. This can
include monetary damages, injunctive relief, specific performance, or other forms of legal
redress.

In a lawsuit, the cause of action is set out in the pleadings, which include the complaint or
petition filed by the plaintiff. The pleadings outline the pertinent facts of the case, the
defendant's actions, and the plaintiff's response to those actions, which resulted in the
plaintiff's loss or harm.
Relevant facts are those that prove or disprove a fact in issue, which are the questions brought
to court on behalf of the claimant. Evidence in a legal proceeding is restricted to facts in issue
or relevant facts as per the provisions of the Evidence Act. Additionally, facts that are
inconsistent with or affect the probability of other facts may also be considered relevant.
It is important to establish a valid cause of action to pursue a legal remedy in court and seek
resolution for the alleged wrongdoing or harm suffered by the plaintiff.

What is the procedure in determining existence of a cause of action?

In order to determine the existence of a cause of action, the following procedure can be
followed:
 Identify the general area of substantive law: Determine the broad category of law that
applies to the case, such as contract law, tort law, property law, or criminal law. This will
help establish the legal framework within which the cause of action will be analyzed.
 Narrow down to a specific topic: Within the chosen area of law, identify the specific
topic or legal principle that is relevant to the case. For example, if the case involves a

50
 breach of contract, focus on the specific aspects related to contract law that apply, such as
formation of a contract, performance, or remedies for breach.
 Determine the elements of the cause of action: Examine the specific area of law and
identify the essential elements that must be proven to establish a cause of action. These
elements are the legal requirements that must be satisfied for the claim to be successful.
For example, in a negligence case, the elements typically include duty of care, breach of
duty, causation, and damages.
 Analyze the facts of the case: Assess the factual circumstances surrounding the claim
and determine if they satisfy all the required elements of the cause of action. Compare the
facts to the legal elements and consider whether there is sufficient evidence to establish
each element.
 Consider legal precedents and case law: Research relevant legal precedents and case
law that have addressed similar issues or principles. Analyze how previous courts have
interpreted and applied the law in similar situations. This can provide guidance on the
likelihood of success in establishing the cause of action.

How does the court handle multiple causes of action

To handle multiple parties in a suit, the following approaches can be taken:
 Joining Causes of Action: A plaint can contain any number of causes of action or counts
that arise out of the same general factual situation. If the claims in the suit are related and
arise from the same series of events, they can be joined in the same plaint. For example, if
there is an accident case involving both material damages and personal injuries, these two
claims can be included in the same plaint, with separate particulars for each claim.
 Separate Causes of Action: If the claims in the suit provide different remedies or require
different facts or evidence, they should be separated into distinct courses of action. If the
evidence and causes of action are not the same, it is advisable to file separate claims to
ensure clarity and proper presentation of the case.
 Liberal Rules of Pleading: The rules of pleadings are generally liberal, allowing for
flexibility in combining or separating claims. If two or more claims were combined into
one course of action, the courts can either allow the pleading to stand as written or allow
it to be amended to separate the claims if necessary.
 Amendment of Pleadings: If it is discovered that the claims should have been separated
or joined differently, the pleadings can be amended to reflect the appropriate approach.
The determining factor is how the claims are intended to be proven, the type of evidence
to be presented, and the remedies sought. As long as the rules of pleadings are followed,
there is flexibility to amend the pleadings as needed.
Overall, the key consideration is to ensure that each party's claims are clearly identified,
properly presented, and supported by the relevant evidence. If there is any confusion or need
for adjustment, the court and the rules of pleadings allow for flexibility in handling multiple
parties in a suit.

What are the limitations to file an action?

 Unless a case is filed within the appropriate statute of limitations, it will be dismissed,
regardless of the merits of the case.
 Only the court’s discretion can be exercised to revive such a case, with sufficient/
grounds shown cause shown to explain delay.
 Under the statute of limitations an advocate can approach the court to enlarge the time by
way of a pleading known as originating summons.

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 Once one receives leave after their application they must extract the order and attach the
order when the advocate drafts the plaint.

Explain how time limitations are calculated.

 Time limitations are generally straightforward to calculate.
 For instance, if a plaintiff has three years from the date of an accident to file a personal
injury claim, determining the date of the accident is usually easy through police reports
and witness accounts, making it simple to calculate the statute of limitations.
 However, in certain cases like professional malpractice or fraud, determining the time
limitations can be challenging. It may be difficult to pinpoint the exact date of the
wrongdoing, as it may differ from the day of the original incident. The statute of
limitations begins to run from the date the plaintiff discovers or should have discovered
the malpractice or fraud.

What is the procedure calculating the statute of limitations?

 When calculating the statute of limitations, the first day is not counted, but the last
day is.
 For example, if you are filing a lawsuit for injuries from an automobile accident that
occurred on Friday, January 28, 2015, you start counting from January 29, 2018.
 Assuming a three-year statute of limitations, it would expire on Wednesday, January
28, 2018, and you would need to file your complaint by that date.
 However, if that day falls on a court holiday, you would have until the next working
day to file your complaint.

What is the different limitation of actions?

This is provided for in the Limitation of Actions Act (Cap. 22, Laws of Kenya).
 Section 4 of the Limitation of actions Act - An action founded on tort may not be
brought after the end of three years from the date on which the cause of action
accrued.
 Section 4 of the Limitation of actions Act - Actions based on contract cannot be
brought after six years such as actions founded on enforcement of a recognisance
actions to recover a sum recoverable by virtue of written laws and actions to claim an
equitable relief.
 Section 5 of the Limitation of Actions Act Actions founded on libel and slander
may not be brought upon expiry of 12 months from such date.
 In cases where a tortfeasor claims against another tortfeasor (the right to recover
contributions in respect of any damages from another tortfeasor) such an action shall
not be brought after the end of two years from the date on which that right accrued to
the first tortfeasor.
 Proceedings founded on tort shall be brought against the Government or a local
authority prior to the expiry of 12 months from the date on which the cause of action
accrued.
 Proceedings founded on contract shall be brought against the Government or a local
authority prior to the lapse of three years from the date on which the cause of action
accrued.
 Section 7 of the Limitation Act. - Where land is concerned, the limitation period is
12 years

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  Section 26 of the Limitation of Actions Act, - In fraud cases, the limitation period
can be extended in cases of fraud or mistake and the limitation period does not begin
to run until the plaintiff discovers the fraud or mistake.
 Section 90 of the Limitation of Actions Act - the limitation period for employment
disputes is three years, except for actions concerning negligence, for which the
limitation period is one year from the date that the negligence or default complained
of ceased.
 Section 7 of the Limitation Act - In adverse possession case where one recovers
someone’s land adversely. This can only be if you have been
- enjoying the land for 12 years on that property
- without the owner’s permission/authority
- uninterrupted
- they are aware you are there.
You can move to court to have the land declared yours the land years have the land registrar
order to transfer the paperwork to you.
The doctrine of adverse possession does not apply to government land. This is because the
government owns radical title. At all time the land belongs to the government and because of
that concept of radical title and eminent domain you cannot claim adverse possession against
the government.

 Section 13A of the Government Proceedings Act requires that a 30 day notice be
given to the Government. Kenya Bus Services Ltd & another v Minister for
Transport & 2 others [2012] eKLR

Why is limitation important?

The bar of limitation must be raised by a party to a suit as a defense to a claim or a

counterclaim.

How does one extend the statute of limitations?

 When a statute is tolled, the time stops running. The most common reason a statute of
limitations is tolled is that the plaintiff is a minor. The statute is tolled during the minority
of the plaintiff and begins to run once the minor reaches the age of majority. This is used
when a child does not have a next friend or a guardian to sue on their behalf so they will
toll until they're 18 years old so that they can then sue. Do not assume, however, that the
statute of limitations is always tolled during a child’s minority. You must check the
appropriate statutory law. Look at whether the substantive law have the element of
tolling.
 Article 143(2) of the Constitution precludes an incumbent president from facing a civil
suit for any acts or omissions in exercise of their power during their incumbency.
According to sub-article (3) the time for a civil suit against an incumbent president shall
be tolled and time will only start running out when they leave office.
What is a claim statute?

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A "claim statute" refers to a legal provision or rule that requires a written claim to be
presented to the defendant before filing a lawsuit. It is often associated with civil suits and is
guided by the applicable civil procedure rules. The purpose of a claim statute is to notify the
prospective defendant that a claim is pending against them, providing them an opportunity to
address the claim before litigation is initiated.
In some cases, specific statutes, such as the Government Proceedings Act, may require a
notice period, such as 30 days, to be given to the government before filing a claim against
them. However, courts have ruled that denying someone the fruits of their judgment solely
based on a failure to provide the required notice period can be unconstitutional.

The notice of claim typically includes information such as the identity of the claimant, the
nature of the claim, and the amount being claimed. It serves as a preliminary step before
initiating a lawsuit and can be similar to a demand letter, informing the government or the
defendant of the potential legal action that will be taken if the matter is not resolved.

What is the doctrine of latches?

The doctrine of laches is a legal principle that applies in equitable cases where the plaintiff is
seeking a remedy other than monetary damages. Equitable claims, such as injunctions,
rectification, rescission, restitution, and specific performance, are subject to the doctrine of
laches.

Laches operates as a defence that can prevent a lawsuit from being filed if, in fairness to the
defendant, too much time has passed, even if the statute of limitations has not expired. It is
invoked when there has been an unreasonable delay by the plaintiff in bringing the claim,
causing prejudice or hardship to the defendant.

Laches recognizes that there should be a limit on the time within which a party can seek
equitable relief. If a party unreasonably delays in asserting their rights, to the point where the
other party has been disadvantaged or the circumstances have significantly changed, the court
may refuse to grant the requested equitable remedy.

In essence, laches emphasizes the importance of timely action in equitable cases and prevents
a party from seeking relief after an unreasonable delay that prejudices the other party's
position or undermines the integrity of the legal process.

What is feasibility of a lawsuit?

The feasibility of a lawsuit refers to the practicality and viability of pursuing a legal case. It
involves assessing various factors to determine if it is reasonable to proceed with the lawsuit.
When considering the feasibility of a lawsuit, several aspects are taken into account:
 Merit of the Case: The advocate evaluates whether there is a valid cause of action and if
there are sufficient grounds to support the claims being made. This includes examining
the legal basis, available evidence, and potential legal arguments.
 Time and Cost Considerations: Litigation can be a lengthy and expensive process. The
advocate assesses whether the potential benefits outweigh the time, effort, and financial
resources required to pursue the case. This includes considering advocate fees, court
costs, expert witness fees, and other associated expenses.

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 Scope of Knowledge and Expertise: The advocate determines if they possess the
necessary knowledge and expertise in the specific area of law relevant to the case. If the
matter is beyond their expertise, it may not be practical for them to handle the lawsuit
effectively.
 Potential Outcome and Recovery: The advocate evaluates the potential damages or
relief that could be obtained through the lawsuit. This includes assessing the likelihood of
success, potential settlement options, and the practicality of recovering any awarded
damages or obtaining the desired outcome.
 Risk Assessment: The advocate considers the risks involved in the litigation process,
such as the possibility of adverse judgments, counterclaims, or reputational harm. They
weigh these risks against the potential benefits to determine if the lawsuit is feasible.
Ultimately, the feasibility of a lawsuit involves a comprehensive analysis of legal, financial,
and practical considerations to determine if it is advisable and worthwhile to proceed with
legal action.

What is the ethical consideration after taking up a case?

Ethical considerations after taking up a case involve several important factors:

 Communication with the Client: Lawyers have a duty to keep their clients informed
about the progress and status of their cases. Regular communication with the client is
essential to provide updates, discuss strategies, and address any concerns they may have.
 Communication with the Opposing Party: Advocates should not personally contact an
opposing party who is represented by their own advocate. However, if the opposing party
is unrepresented, communication may be allowed within ethical boundaries.
 Frivolous Claims: Pursuing lawsuits that lack merit should be avoided. Bringing
frivolous claims can lead to legal consequences for the advocate, including potential
lawsuits by the opposing party and disciplinary proceedings.
 Conflict of Interest: It is crucial to identify and address any conflicts of interest. This
typically arises when a firm is asked to sue a party it currently represents or previously
represented. Conflicts can also occur when the interests of a current or former client are
directly opposed or detrimental to each other.
 Confidentiality: Communication between a client and advocate is privileged and
confidential. Advocates are prohibited from disclosing any information shared by their
clients, ensuring client confidentiality and upholding the right to privacy.
 Honesty: Advocates must always be honest in their dealings with the court, opposing
parties, and other advocates. Making false representations to a court or tribunal is strictly
prohibited, and advocates should maintain integrity in all aspects of their professional
interactions.

Adhering to these ethical considerations is vital for lawyers to fulfill their professional
responsibilities, maintain client trust, and uphold the integrity of the legal profession.

What is Jurisdiction (pecuniary, territorial statutory & subject matter)?

Jurisdiction refers to the authority or power of a court to hear and decide cases. This means
means does the court have power both monetary and territorially to deal with a claim that is
before it.
There are several types of jurisdiction:

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 Pecuniary Jurisdiction: Pecuniary jurisdiction relates to the monetary value of the claim
or dispute. Different courts have different limits on the monetary value they can
adjudicate. For instance, small claims courts may handle cases below a certain monetary
threshold, while higher courts like the Chief Magistrates' Court or the High Court can
handle cases of higher value. In Kenya, the Magistrates' Courts have limited pecuniary
jurisdiction, while the High Court has unlimited pecuniary jurisdiction and can hear cases
of any amount.
- Small claims court can hear cases below 1,000,000.
- The chief Magistrates Court above 1,000,000 but below 20,000,000.
- The high court above 20,000,000

 Territorial Jurisdiction: Territorial jurisdiction determines which court has the authority
to hear a case based on the geographical location where the matter arose or where the
parties reside. Different courts have specific territorial boundaries within which they can
exercise their jurisdiction. For example, Magistrates' Courts typically have jurisdiction
over specific districts or divisions, while the High Court has jurisdiction over the entire
country.
 Statutory Jurisdiction: Statutory jurisdiction is conferred on specific courts by
legislation or statutes. These statutes outline the types of cases or matters that a court is
authorized to hear. For example, statutes may define the powers and authority of the court
in handling certain matters, such as the Supreme Court Act, Appellate Jurisdiction Act, or
the Magistrates' Courts Act. Statutory jurisdiction defines the scope of authority and
subject matters that a court can adjudicate.
 Subject Matter Jurisdiction: Subject matter jurisdiction refers to the authority of a court
to hear cases of a particular nature or involving specific subject matters. Different courts
may have jurisdiction over different types of cases based on their specialized expertise or
statutory provisions. For example, the High Court in Kenya has original jurisdiction over
constitutional matters, while the Magistrates' Courts handle criminal and civil cases of a
lower magnitude. Specialized courts, such as the Employment and Labour Relations
Court or the Environmental and Land Court, have statutory jurisdiction to hear cases
related to specific subject matters within their designated areas.

J Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) jurisdiction everything
and without jurisdiction, a court should never move an inch. It should down its tools.

What is a demand letter?

A demand letter is a formal notice sent to an individual or entity, requiring them to fulfil a
legal obligation within a specified timeframe and according to specific terms. The purpose of
a demand letter is to remind the recipient of their obligation and give them an opportunity to
rectify the situation without resorting to court action. It is often used when the recipient may
have forgotten or overlooked their obligation. Therefore, before u institute a suit one
generally must serve the defendant with a demand letter.

However, not all cases require a demand letter. In certain situations where someone is
engaging in illegal activities or actions that may cause irreparable harm, sending a demand
letter may not be appropriate or effective. For example, if someone is encroaching on your
land and has already started construction, reminding them of your ownership through a
demand letter may prompt them to accelerate their actions before legal proceedings can be

56
initiated. In such cases, immediate legal action may be necessary to prevent further harm or
loss.
It's important to consider the specific circumstances of each case and determine whether a
demand letter is an appropriate course of action. In some instances, it may be more effective
to proceed directly to legal action without issuing a demand letter to protect one's rights and
interests.

What is a notice of intention to sue?

A Notice of intention to sue is typically used in government transactions. It is a written notice

sent to the government to remind them of their obligations that they have failed to fulfil. In
the past, it was a requirement to provide a notice of intention to sue within one year of the
claim before proceeding to court. However, through jurisprudence, the court recognized that
this requirement was too harsh. In the case of Kenya Bus Services, the court ruled that a
notice of intention to sue is not always mandatory, and dismissed cases solely based on the
failure to provide such notice.

What is the difference between a demand letter and a notice of intention to sue?

A demand letter is a direct request for the recipient to fulfill a legal obligation, often used as a
means of resolving a dispute before litigation. On the other hand, a notice of intention to sue
is a formal notice that communicates the sender's intention to initiate legal action if the
recipient fails to address the issue or fulfill certain obligations. The notice of intention to sue
is often a required step before commencing a lawsuit, especially in specific circumstances
involving government entities or as mandated by applicable laws or regulations.

What is the Scope of the demand letter?

The scope of a demand letter includes the following key points:

 Recipient: The letter is sent to the person against whom a grievance or claim is raised,
also known as the prospective defendant.
 Timing: The demand letter is sent before the commencement of a lawsuit or legal action.
 Purpose: The letter is intended to elicit a payment or compliance from the recipient,
seeking redress for the alleged grievance or claim.
 Information: The letter serves to inform the adversary of the pending claim and provides
an opportunity for resolution outside of court. It outlines the details of the claim, the
specific obligations or demands, and the reasons supporting the claim.
 Response Timeframe: The recipient is given a specific time frame within which they are
expected to respond to the demand letter.
 Sender: The demand letter may be written by the person seeking redress or by their legal
representative.
 Proof of Delivery: A copy of the demand letter is made, and the original is sent in a
manner that provides proof of delivery. This can be done through registered mail, service
by a registered legal clerk, or other electronic methods with evidence of receipt.
 Documentation: It is important to maintain records of sending the demand letter, such as
a delivery book or proof of mailing, to address any disputes regarding whether the letter
was sent.
 Electronic Delivery: Under the 2020 civil Procedure rules, demand letters can be sent
via email or other electronic methods, such as WhatsApp, if the recipient's electronic

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 contact information is known. Advocates can utilize these electronic methods to ensure
proof of service.

The purpose of a demand letter can be summarized as follows:

 Opportunity for Resolution: The primary purpose of a demand letter is to provide both
parties with an opportunity to resolve the issue or dispute without resorting to litigation. It
aims to avoid unnecessary legal proceedings and the associated costs.
 Notice to the Other Party: The demand letter serves as a formal notice to the other party,
informing them that there is an issue or claim against them. It highlights the specific
grievance or demand being made.
 Encouraging Non-Litigious Resolution: By sending a demand letter, the party initiating
the claim offers the other party a chance to address the issue outside of court. It seeks to
encourage negotiation, settlement discussions, or other alternative dispute resolution
methods to resolve the matter.
 Time and Cost Considerations: The purpose of a demand letter is also influenced by the
realities of the legal system, such as the overburdened judiciary and the costs associated
with litigation. By providing an opportunity for resolution before litigation, the demand
letter aims to save time and costs for both parties.
 Documentation of Service: When a demand letter is delivered, whether through a
registered legal clerk or other methods, it ensures that there is evidence of the letter being
received by the intended recipient. This documentation is important for future reference
and potential legal proceedings.
 In summary, the purpose of a demand letter is to facilitate non-litigious resolution,
provide notice to the other party, save time and costs, and establish documentation of
service. It serves as an initial step in attempting to resolve a dispute or claim outside of
formal court proceedings.

What are the contents of a demand letter?

The contents of a demand letter can be summarized as follows:

 Letter head - The letter head of the law firm which is the advocate that is representing
the client sending the demand letter
 Reference: The demand letter should include a reference number or identifier for easy
identification and tracking. our reference / your reference : TBA
 Date The letter should have a clear date of issuance
 Contact Information: Includethe recipient's contact information, including their name
and address.
 Salutation: The letter should begin with a respectful salutation such as "Dear
Sir/Madam" followed by the recipient's name if known.
 Authority to Act: The demand letter should state that the sender is authorized to act on
behalf of the claimant or client, providing legitimacy to the communication.
 Summary of the Matter: A concise summary of the issue or dispute should be provided,
explaining the facts and circumstances surrounding the claim. This may include details
such as dates, events, and parties involved. you need to explain why you're writing the
demand letter and what facts have caused you to draft the demand letter
 Demand for Specific Relief or Payment: The letter should clearly state the specific
relief or payment being sought from the recipient. This could include a demand for
compensation, rectification of a problem, or fulfillment of a contractual obligation.

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 Deadline for Settlement: A specific deadline should be included by which the recipient
must respond or comply with the demand. The deadline should allow sufficient time for a
reasonable response or negotiation.
- 7 days, where debtor resides in the same town as advocate,
- Not less than 10 days, where he resides in a different town in Kenya,
- 15 days, where he resides outside East Africa
 Consequences of Non-Adherence: The letter should outline the potential consequences
if the recipient fails to respond or comply within the specified deadline. This may include
the initiation of legal proceedings and a mention of potential costs associated with
litigation. which is just a statement saying that you can escalate the matter to litigation if
they do not respond within the timeline that you have given them.
 Your faithfully to wind up the letter
 Signed by an advocate
 CC Client

When demand letter would not be advisable?

A demand letter would not be advisable in certain situations where the element of surprise
and the efficacy of court orders are important. This includes cases where the plaintiff seeks
specific injunctions such as Anton Pillar Orders or Mareva Injunctions.

 Anton Pillar Order: If an advocate has evidence that they want to rely on, but it is
within the possession of the adversary, a demand letter would not be advisable. This is
because notifying the adversary in advance could lead to destruction or hiding of the
evidence. Instead, the advocate would apply for an Anton Pillar Order, which allows for a
search and seizure of the evidence without prior notice.
 Mareva Injunction: These are freezing orders that maintain the status quo and prevent
the removal or transfer of assets until further court orders. In cases where the plaintiff
intends to apply for a Mareva Injunction, issuing a demand letter would not be advisable.
This is because the defendant's knowledge of the pending application may defeat the
purpose of maintaining the status quo, such as through dissipation of assets or removal of
subject matter from the court's jurisdiction.

In both cases, the element of surprise and the preservation of the subject matter or evidence
are crucial. Issuing a demand letter would alert the adversary and potentially hinder the
effectiveness of court orders. Initial application for this is usually made ex parte without
notice to the defendant. Therefore, in these situations, alternative legal strategies that allow
for a secretive or surprise approach, such as the expert proceedings associated with Anton
Pillar Orders or ex parte applications for Mareva Injunctions, are more appropriate.

What is without prejudice communication?

Without Prejudice communication is a form of communication, such as a letter or

conversation, where the sender wishes to protect the content of the communication from
being used against them in court proceedings. When engaging in Without Prejudice
communication, the sender can discuss potential resolutions or negotiate without their
statements being used as evidence of admitting liability or weakening their legal position.

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When the recipient of a Without Prejudice communication responds, they may indicate their
understanding of the nature of the communication by quoting the legal phrase "Without
Prejudice." By doing so, they are acknowledging that their response is also intended to be
protected and not used against them in court.
It's important to note that Without Prejudice communication is generally inadmissible in
court as evidence. However, there can be exceptions to this general rule. Parties may agree to
waive the Without Prejudice protection and introduce the communication as evidence if they
believe it will support their case or dispute the other party's position.

What are the exceptions to the "without prejudice" rule?

Consent: If both parties agree to waive the "without prejudice" protection, the
communication can be used as evidence in court.
Fraud and Misrepresentation: If the communication involves fraudulent or misleading
statements, it may be admissible in court to prove fraud or misrepresentation.

Time Limitations: If one party is using the "without prejudice" communication to unduly
delay or prolong negotiations, the protection may be waived. If time is of the essence and the
negotiation process is being abused, the court may allow the use of "without prejudice"
documents to demonstrate the party's conduct and support a claim.

What is the overriding objective of the court?

The overriding objective of the court is to ensure the fair, efficient, timely, and cost-effective
resolution of the real issues in dispute. This objective is enshrined in the Constitution,
specifically under Article 159(2), which sets forth the guiding principles for the court. These
principles include:

a. Proportionate justice: The court aims to achieve a fair and just outcome that is
proportionate to the circumstances of the case.
b. Timely justice: The court seeks to provide a prompt resolution of disputes, avoiding
unnecessary delays.
c. Cost-effective and efficient justice: The court strives to minimize costs and ensure an
efficient judicial process.

Who have the obligations under the Act?

It applies to all persons who are participants in a civil proceeding, including:
- parties (claimant and respondent)
- legal representatives (next friend, guardian in litem)
- judges litigating the suit
- those who provide financial assistance or otherwise exercise control (whether directly or
indirectly) over a party or a proceeding,
- litigation funders and insurers

What are the specific overriding obligations?

These principles are derived from Article 159 of the Constitution and are incorporated into
Sections 1A and 1B of the Civil Procedure Act. They guide the court in administering

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justice efficiently, using judicial resources properly, adopting technology where necessary,
ensuring access to justice regardless of financial means, and encouraging parties to settle their
disputes.

The specific overriding obligations of the court include:

 Obligation to act honestly: The court and parties are expected to act honestly in all
aspects of the proceeding.
 Obligation not to make or respond to a case or claim without a proper basis: Parties
should have a valid and legitimate basis for bringing or responding to a case, avoiding
frivolous or baseless claims.
 Obligation to take necessary steps to facilitate dispute resolution: Parties should only
take those steps that are essential in resolving the dispute, avoiding unnecessary delays or
actions.
 Obligation to cooperate with other parties and the court: Parties are expected to
cooperate and engage in good faith throughout the proceedings, promoting an efficient
and fair resolution.
 Obligation not to mislead or deceive: Parties must not provide false or misleading
information or engage in deceptive conduct during the proceedings.
 Obligation to use reasonable endeavors to resolve the dispute: Parties should make
reasonable efforts to settle the dispute through negotiation, mediation, or other alternative
dispute resolution methods.
 Obligation to narrow the issues in dispute: Parties should identify and present the core
issues in dispute, focusing on unagreed standards and narrowing down evidence and facts
that are in contention.
 Obligation to ensure costs are reasonable and proportionate: Parties should keep
costs reasonable and proportionate to the complexity and value of the dispute.
 Obligation to minimize delay: Parties should avoid unnecessary adjournments or
procedural delays, seeking to resolve the matter in a timely manner.
 Obligation to disclose critical documents: Parties have a duty to disclose the existence
of critical documents that may significantly impact the case.

What are the court’s power to further the overriding objectives?

 Under section 1B of the relevant legislation, the court is empowered to further the
overriding objectives by considering specific objectives, which include:
 Just determination of disputes: The court's primary objective is to reach a fair and just
resolution of the issues in dispute. This involves identifying the relevant issues, assessing
the evidence, and providing clear reasons for the court's determination. A just
determination helps minimize the likelihood of appeals and ensures parties receive a fair
outcome.
 Efficient use of resources: The court aims to make efficient use of its resources,
including time and personnel, in order to avoid unnecessary delays and backlog of cases.
This objective emphasizes the need for streamlined processes and effective case
management to ensure timely resolution.
 Proportionate approach to proceedings: The court seeks to deal with proceedings in a
manner that is proportionate to the complexity of the case. This means allocating
appropriate time and resources based on the seriousness and complexity of the issues
involved. It ensures that cases are handled efficiently without unnecessary delays or
overburdening parties.

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 Importance of the matters in dispute and amount involved: The court considers the
significance of the matters in dispute and the amount of money or value involved. This
objective recognizes that certain cases may have broader implications or significant
financial stakes, and the court's determination can impact the parties involved and the
public at large.

What is the discretionary powers of the court?

The discretionary powers of the court refer to the court's authority to exercise judgment and
make decisions based on the circumstances of a particular case. In relation to the overriding
objectives and the specific factors mentioned, the court has the discretion to consider various
factors when making decisions. These factors include:

 Compliance with pre-litigation processes: The court has the discretion to assess
whether parties have complied with any pre-litigation processes, such as providing notice,
properly drafting and serving pleadings, and ensuring proper service. Compliance with
these processes demonstrates a party's adherence to procedural requirements.
 Promptness in conducting the proceedings: The court considers the degree of
promptness with which parties have conducted the proceedings. Parties should avoid
unnecessary delays or adjournments that may hinder the timely resolution of the case. The
court may exercise its discretion favorably towards parties who actively and promptly
move the case forward.
 Compliance with overriding obligations: The court evaluates whether parties have
complied with the overriding obligations, such as cooperating with other parties, not
misleading or deceiving, and using reasonable endeavors to resolve the dispute.
Compliance with these obligations indicates a party's commitment to the principles of
fairness and efficiency in the proceedings.
 Public importance of the issues in dispute: The court considers the public importance
of the issues involved in the case. Matters that have broader implications or involve issues
of public interest may be given greater attention and scrutiny by the court in order to
ensure a just and appropriate resolution.
 Desire for judicial determination: The court considers the desirability of resolving the
issues through judicial determination. This includes assessing the parties' access to legal
advice and representation to ensure a fair and balanced presentation of their cases.

Overall, the discretionary powers of the court allow it to consider these factors and exercise
judgment in order to achieve a just, efficient, and proportionate resolution of the dispute
before it. The court's decisions should be guided by the law, fairness, and the principles set
forth in the overriding objectives.

What considerations should the court have in furthering the overriding objectives?

The court should consider the extent to which parties have complied with pre-litigation
processes and the efforts made by parties to resolve the dispute or limit the issues in dispute.

Do the overriding objectives override the existing duties and obligations of legal
practitioners?

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No, the overriding objectives do not override existing duties and obligations of legal
practitioners, as long as they can operate consistently.

What happens when there is a conflict between the duty to the court and the duty to the
client?

In the event of inconsistency, the overriding objective prevails to the extent of the
inconsistency, and the legal practitioner is not required to comply with the inconsistent wish
or instruction of the client.

Why is it important to prioritize the overriding objectives, even if it may go against the
interests of the client? A: The primary duty of a legal practitioner is to the court, and the duty
to the court should always prevail over conflicting duties to the client.

Can legal practitioners cause their clients to contravene the overriding objectives?

No, legal practitioners and law practices must not engage in conduct that would cause their
clients to contravene any overriding obligation.

What are some of the duties owed by legal practitioners to the court?

Legal practitioners have a duty not to deceive the court, withhold necessary information or
documents, abuse court processes, waste the court's time, coach witnesses or clients about
their evidence, or use dishonest or unfair means to hinder an opponent.

What are the sanctions for contravening overriding objectives?

Sanctions for contravening overriding objectives include:

The court may take contraventions of the overriding objectives into account and impose
various sanctions and remedies, such as:
o Payment of legal costs, expenses, or compensation.
o Requiring steps to be taken to remedy the breach.
o Precluding a party from taking certain steps in the litigation.
The court has a broad discretion to make appropriate orders in the interests of justice if it is
satisfied, on the balance of probabilities, that a person has contravened any overriding
obligation. These orders may include:
o Costs orders directing the payment of costs arising from the contravention.
o Immediate enforceability of legal or other costs.
o Compensation for financial or other losses caused by the contravention.
o Requiring the person to take necessary steps to remedy the contravention.
o Restricting the person from taking specified steps in the civil proceeding.
o Any other order considered to be in the interests of the affected parties.

The court may grant an extension of time for an application if the party making the
application was not aware of the contravention until after the finalization of the civil
proceeding. This allows for flexibility in addressing contraventions that were discovered
later.
Overall, these sanctions aim to promote compliance with the overriding objectives and ensure
that parties adhere to their obligations in the pursuit of just, efficient, and timely resolution of
disputes.

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Explain the Oxygen principle.

The Oxygen Principle is a legal concept that emphasizes the court's discretion to assist parties
in litigation rather than dismissing cases based on minor technicalities. It is derived from the
idea that justice should not be denied due to insignificant errors or omissions in legal
procedures. The principle is often invoked in cases where a party has not fully complied with
the rules or requirements, but the court determines that it is appropriate to proceed with the
case on its merits.

The Oxygen Principle is closely related to the overriding objective in civil litigation, which
aims to achieve a just, efficient, and timely resolution of disputes. Prior to the implementation
of the overriding objective, cases could be dismissed for minor procedural deficiencies, such
as missing documents or unsigned forms. However, with the introduction of the overriding
objective, courts are encouraged to sustain cases and consider the substantial compliance with
rules rather than focusing on technicalities.

While the Oxygen Principle provides flexibility and allows the court to exercise its discretion
in favor of maintaining cases, it is not intended to protect deliberate non-compliance with the
rules. The court will carefully weigh the circumstances and determine whether the case
warrants the application of the overriding objective or if it is a situation where strict
compliance with the rules is necessary.

Overall, the Oxygen Principle and the overriding objective aim to ensure that justice is not
denied due to minor procedural errors, while still maintaining a balance between adherence to
rules and the efficient resolution of disputes.

What to consider before instituting a suit/Essentials of a Civil Suit

Before instituting a civil suit, there are several factors to consider and essential elements to be
aware of. Here's a breakdown of the considerations and essentials:
Considerations:
 Court of Competent Jurisdiction: It is important to identify the appropriate court that
has the jurisdiction to hear the particular type of case you wish to bring. This depends on
factors such as the subject matter, the amount in dispute, and the geographical location.
 Parties: Determine the parties involved in the dispute, including the plaintiff (the party
bringing the suit) and the defendant (the party being sued). Ensure that all necessary
parties are included to properly address the issues and seek appropriate relief.
 Cause of Action: Identify the legal basis or cause of action on which your claim is
founded. This refers to the legal theory or claim you are asserting against the defendant.
Essentials:
 Pleadings: Pleadings are formal written statements filed with the court by the parties
involved. The plaintiff's pleading is typically called a complaint or statement of claim,
while the defendant's response is known as a defense or statement of defense. Pleadings
outline the claims, facts, legal arguments, and relief sought by each party.
 Subject Matter: The subject matter refers to the specific matter or controversy at the
center of the lawsuit. It is the substance of the dispute that is being brought before the
court.

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 Relief Sought: Clearly state the specific relief or remedy you are seeking from the court.
This can include damages, injunctions, specific performance, or declaratory judgments,
depending on the nature of the claim.
 Service of Pleadings and Summons: Once the pleadings are prepared, they must be
properly served on the opposing party. This involves delivering the documents to the
other party in accordance with legal requirements to ensure that they are officially
notified of the lawsuit.
 Appearance: The defendant must appear in court and respond to the lawsuit by filing a
defense or statement of defense within the prescribed time frame. Failure to appear can
result in a default judgment being entered against the defendant.

What is an affidavit and who can swear it?

An affidavit is a sworn statement made by an adult of sound mind under the Oaths and
Statutory Declarations Act.

What are the functions of an affidavit?

The functions of an affidavit include:

 Serving as evidence in a court of law.
 Confirming names if they differ in documents.
 Authorizing a person to undertake an activity, such as a parent letting a minor travel
to a foreign country.
 Representing a company on its behalf.

Name the types of affidavits.

The types of affidavits are:

a) Verifying affidavit
b) Supporting affidavit
c) Replying affidavit
d) Further affidavit
e) Affidavit of service
f) Affidavit of marriage
g) Affidavit of means

What are the requirements for an affidavit?

The requirements for an affidavit are:

 Title
 Name and address of the deponent (person making the statement)
 Facts or the statement itself
 Jurat (date and place where the affidavit was sworn)
 Commissioned (authorized by a commissioner to administer oaths)

What are statutory declarations, and where are they provided for?
Statutory declarations are sworn statements of fact made outside the courtroom. They are
provided for under the Oaths and Statutory Declarations Act and can also be used in respect
to various legislation such as the Registration of Documents Act.

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What is the primary function of a statutory declaration?

The primary functions of a statutory declaration include:

 Change of name
 Applying for patenting
 Ascertaining the origin of certain goods for marketing
 Declaring identity or citizenship where no other evidence is available
 Couples asserting legal marriage by cohabitation
 Declaration of dividends

What is the main distinction between affidavits and statutory declarations?

The main distinctions are as follows:
 Affidavits are sworn statements under oath and are used in courts, while statutory
declarations are solemn statements and are used outside courts.
 Affidavits are governed by the Civil Procedure Rules, whereas statutory declarations
fall under the Oaths and Statutory Declarations Act.
 Affidavits are used when legal documents are needed (e.g., voter registration), while
statutory declarations are used for purposes like name changes, patent requests, and
serving as evidence in certain situations.

In a civil suit who begins the case?

In a civil suit, the party who initiates the case is called the plaintiff. The plaintiff is the
aggrieved party or the one who claims to have suffered a legal injury, and they seek a legal
remedy or relief from the court. The plaintiff bears the burden of proof and has the
responsibility to present their case and support it with evidence.

How does one originate an action in civil litigation?

 To originate an action in civil litigation, a plaintiff (complainant) must make a complaint

or demand before a court in due form. This is done by submitting a pleading, which is a
written statement that outlines the grievances or responses to alleged liability. The
pleading must clearly state the circumstances in which it is alleged that the liability has
arisen.
 The pleading serves as a summary of the case and includes the material facts that support
the claim. It is important that the claimant's submission to the court is clearly ascertained,
allowing the parties and the court to understand the nature of the dispute. The purpose of
the pleading is to establish the character of the dispute and to identify the issues that
require determination by the court.
 Once the pleading is filed, it is served on the opposing party, who must respond with a
written statement of defence. This allows both parties to be aware of the allegations and
issues they will need to address during the proceedings.
 The pleadings provide a framework for the court to determine the legal and factual
controversies involved in the case.

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 In summary, to originate an action in civil litigation, a plaintiff initiates the process by
submitting a pleading that clearly states the circumstances and legal rights that form the
basis of their claim. The opposing party then responds with their own written statement of
defense. The pleadings play a crucial role in defining the dispute and establishing the
issues for determination by the court.

What are the formal requirements of a pleading?

The formal requirements of a pleading in civil litigation are in order 2 of the civil procedure
rules and include:
 Caption: The caption includes the name of the court, the case number, and the names of
the parties involved. It appears at the top of the pleading.
 Title: The title of the pleading should indicate the type of pleading it is, such as "Plaint,"
"Statement of Defense," "Counterclaim," or "Reply," among others.
 Paragraphs: The pleading should be divided into paragraphs that are labeled
consecutively. Each allegation or statement should ideally be contained in a separate
paragraph.
 Description of Parties: The plaintiff and defendant should be described in separate
paragraphs, providing a clear identification of each party. Identify the plaintiff(s) and
defendant(s) involved in the case and their respective roles in the dispute. Include their
full names and addresses.
 Jurisdiction: Specify the court's jurisdiction and the legal basis for the court's authority
to hear the matter.
 Cause of action: The pleading should clearly state the legal basis or causes of action
upon which the claim or defense is founded. It should articulate the legal claims being
raised and the specific legal elements that need to be proved
 Separate Allegations: Each allegation or fact should be stated in a separate paragraph,
allowing for clarity and organization.
 Use of Figures: Use of numbering or lettering for figures: Figures should be represented
using numbers or letters rather than Roman numerals. This helps ensure clarity and
consistency in referencing and cross-referencing within the pleading.
 Facts: Provide a clear and concise narrative of the relevant facts giving rise to the claim
or defense.
 Plead material facts and not evidence: The pleading should focus on setting out the
material facts that form the basis of the claim or defense. Material facts are those essential
to establishing the cause of action or defense and are distinct from evidence, which is
presented during the trial or hearing.
 Capacity of the party to sue or be sued: When applicable, the pleading should indicate
the legal capacity of the party to sue or be sued, such as the capacity of a corporation, an
individual, or a representative acting on behalf of another.
 Legal grounds: Set out the legal principles and statutes that support the claim or defense.
 Prayer for relief: Specify the specific remedy or relief sought by the plaintiff, such as
monetary compensation or injunctive relief.
 Facts in numbered paragraphs: The facts presented in the pleading should be set forth
in consecutively numbered paragraphs. This helps provide a clear and organized
presentation of the case.
 Signature: The pleading should be signed by the party or their lawyer, certifying its
accuracy and truthfulness.

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No need to reiterate document contents: In the pleadings, there is generally no need to
reiterate the contents of the documents that a party intends to rely on. Instead, the facts and
allegations derived from those documents should be pleaded.

What are the specific types of pleadings?

In civil litigation, there are several specific types of pleadings, including:

 Plaint: A plaint is a pleading filed by the plaintiff (the party initiating the lawsuit) to state
their claims and the relief sought. It sets out the facts and legal basis for the cause of
action and outlines the remedy or compensation sought from the defendant.
 Written Statement of Defense: The written statement of defense is a pleading filed by
the defendant in response to the plaint. It addresses and denies or admits the allegations
made by the plaintiff and sets out the defendant's version of the facts and legal arguments.
 Reply: A reply is a pleading filed by the plaintiff in response to the defendant's written
statement of defense. It addresses any new matters raised by the defendant and may
contain additional facts or arguments supporting the plaintiff's case.
 Counterclaim: A counterclaim is a pleading filed by the defendant against the plaintiff. It
asserts a separate cause of action by the defendant against the plaintiff and seeks relief or
damages. A counterclaim can be filed simultaneously with the written statement of
defense or at a later stage in the proceedings.
 Rejoinder: A rejoinder is a pleading filed by the plaintiff in response to the defendant's
counterclaim. It addresses the allegations made in the counterclaim and may contain
additional facts or arguments.
 Application (notice of motion, originating summons, chamber summons : An
application is a pleading filed by either party to request specific relief or seek a court
order on a procedural or substantive matter during the course of the litigation.
Applications can cover a wide range of issues, such as requesting an adjournment,
seeking interim relief, or asking for a specific legal ruling.

What are particulars ?

Particulars in pleading refer to the specific details or specific information that must be
provided in a claim or defense. They include:
a. Details of any misrepresentation, fraud, or willful default on which the party relies.
b. Specific conditions of the mind of any person, such as mental disability, malice, or
fraudulent intention, on which the party relies.

When a party alleges a fact related to another person's knowledge or notice, the court may
order that party to provide the particulars of the facts or notice. This order is usually made
after the filing of the defense, unless it is necessary for the defendant to plead.

It's important to note that requesting such an order for particulars may not result in costs
being awarded unless the proper notice has been given in accordance with the rules. The
particulars delivered by the party must be filed together with the original notice and become
part of the proceedings.
Overall, particulars play a crucial role in providing specific and detailed information in
pleadings, ensuring that both parties have clarity on the claims and defenses presented in the
case.

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What are 5 ways to approach the court in civil litigation?

 Plaint
 Chamber Summons application)
 Notice Of Motion (application)
 Originating Summons application)
 Petition

 Plaint: A plaint, also known as a complaint or claim, is the most common way to initiate
a civil lawsuit. The plaintiff files a plaint with the appropriate court, setting out the details
of their claim and the relief sought. The defendant is then served with a copy of the plaint
and has the opportunity to respond.
 Chamber Summons: Chamber summons are used for interlocutory applications during
the course of a lawsuit. These applications address specific matters that arise during the
litigation process, such as requests for injunctions, discovery of documents, or
amendment of pleadings. Chamber summons are typically filed in chambers and are
heard by a judge in chambers rather than in open court.
 Notice of Motion: A notice of motion is another method used to bring an application
before the court. This is typically used for applications seeking more substantive relief,
such as a request for a court order or judgment. The notice of motion sets out the details
of the application and the grounds on which it is based. The notice is served on the other
parties involved, who have the opportunity to respond before the court makes a decision.
 Petition: A petition is a specialized procedure used for matters involving constitutional
issues or violations of fundamental rights. Petitions are typically filed in the High Court
and are used to challenge the constitutionality of legislation, government actions, or seek
remedies for violations of constitutional rights. Petitions involve a more extensive process
and require specific legal grounds and arguments.
 Originating Summons: Originating summons are used for certain types of cases where
there is no substantial dispute of facts between the parties. They are typically employed
when seeking declaratory relief or where the primary issue is a question of law.
Originating summons present the issues to the court for determination without the need
for a full trial.

What is a plaint?

A plaint is a formal written document filed by the plaintiff to commence a civil lawsuit. It
sets out the plaintiff's claim or cause of action, including the facts, legal grounds, and relief
sought. The plaint serves as the foundation of the plaintiff's case, providing a clear statement
of the claim to the court and the defendant. It's a default way of approaching the court where
no law prescribes otherwise.

What does a plaint do?

A plaint serves as the initial pleading filed by the plaintiff in a lawsuit. It performs several
important functions, including:
 Identification of Parties: The plaint identifies the plaintiffs (those bringing the lawsuit)
and defendants (those being sued). It also describes their legal status and capacity to sue

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 or be sued, such as whether the plaintiff is acting as a trustee, agent, or next friend. This
information is typically included in both the caption and the body of the plaint.
 Description of Factual Basis: The plaint sets out the factual basis for the lawsuit. It
presents the relevant facts in a chronological order, explaining how these facts have given
rise to the legal claims being made. The material facts of the case, whether proven or
disproven, form the basis for the success or failure of the plaintiff's case.
 Request for Relief: The plaint includes a request or demand for specific relief from the
court. This could be in the form of damages (monetary compensation), injunction (court
order to stop or require certain actions), or other remedies. The relief sought should be
grounded in the facts of the case and intended to address the harm or injustice suffered by
the plaintiff.
 Jurisdiction and Venue: The plaint contains a statement affirming that the court in
which it is filed has the proper jurisdiction and venue to hear the case. Jurisdiction refers
to the authority of the court to hear and decide the matter, which can be determined by
factors such as territorial, pecuniary (monetary), or subject matter considerations. Venue
refers to the appropriate geographical location for the lawsuit to be heard

What are the specific requirements of a plaint?

 The plaint must contain the description of the court where it is filed.
 It should have a unique case number assigned to it.
 The names of the parties involved (plaintiff and defendant) must be clearly stated.
 The description and place of residence or business address of the plaintiff should be
included.
 Similarly, the defendant should be described along with the address for service.
 If the plaintiff is a minor, the plaint should mention this fact.
 The plaint should contain the facts that constitute the cause of action.
 It should show that the court has jurisdiction over the matter.
 The prayers for relief sought by the plaintiff should be stated.
 If there is a specific amount of money involved, it must be mentioned.
 The value of the subject matter should be stated.
 The date of the plaint should be included.
 The plaint should be signed by the plaintiff or their authorized agent.
 If the claim is for the recovery of money, the precise amount must be stated.
 If the plaint refers to any document, it should provide an accurate description of that
document.

What documents accompany a plaint?

Under Order 3 rule 2 when filing a plaint, certain documents may accompany it, depending
on the nature of the case and the specific requirements of the court. Common documents that
may accompany a plaint include:

a. Affidavits: Sworn statements by the plaintiff or supporting witnesses, providing

additional details or evidence related to the claim.
b. Documentary evidence: Copies of relevant contracts, agreements, invoices, or other
documents that support the plaintiff's claim.
c. List of witnesses: A list of witnesses the plaintiff intends to call to testify in support of
their case.

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d. Statement of claim: A detailed statement outlining the facts and legal basis of the claim,
providing a more elaborate explanation than the plaint itself.
The specific documents required may vary based on the court's rules and the nature of the
case.

Why is it important to include a description of the parties in a plaint?

 The description of the parties in a plaint is important to identify and distinguish the
plaintiff from the defendant. It provides clarity to the court and the parties involved in the
case. It helps in properly serving the summons and other legal documents on the
respective parties. Additionally, it ensures that there is no confusion or ambiguity
regarding the identity of the parties throughout the litigation process.

What are the certain matters that must be specifically pleaded in the defense when
responding to a plaint as a defendant?

When responding to a plaint as a defendant, there are certain matters that must be specifically
pleaded in the defense:
 Any matter that makes the claim or defense of the other party not maintainable. The aim
is to show that the other party's claim is not legally valid or cannot be supported.
 Matters that, if not specifically pleaded, might take the other party by surprise. This is
done to ensure compliance with the overriding objective principle, which promotes
fairness and avoids surprises in litigation.
 Issues of fact that do not arise from the preceding pleadings. The defense can introduce
new facts that were not addressed in the plaint, and the plaintiff will have an opportunity
to respond to these new issues in their reply.
In the case of an action for the recovery of land, the defendant must specifically plead every
ground of defense they rely on.
It is important to note that no party can make new allegations of facts or raise new grounds in
subsequent pleadings that are inconsistent with their previous pleadings in the same suit. The
defense must be consistent with the initial response to the plaint.
However, a party is allowed to plead any matter that has arisen before or since the filing of
the plaint, if it becomes known to them after the filing of the plaint.
Additionally, a party may raise a point of law in their pleadings, reserving the right to argue a
legal point in their defense.

What is difference between an application and a pleading?

The key differences between an application and a pleading are as follows:

 Nature: Applications are typically interlocutory in nature, meaning they are filed during
the course of proceedings to address specific issues or seek interim relief. On the other
hand, pleadings serve as the initial documents that institute a legal claim or defense in a
lawsuit.
 Purpose: Applications are made to request the court's intervention or decision on a
specific matter, such as obtaining an injunction or seeking permission to amend
pleadings. Pleadings, on the other hand, set out the factual and legal basis for the claims
or defenses asserted by the parties.
 Timing: Applications are filed during the course of proceedings, usually after the
pleadings have been exchanged between the parties. Pleadings, on the other hand, are

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 filed at the outset of a lawsuit to initiate the legal action and establish the claims and
defenses of the parties.
 Content: Pleadings include the initial documents filed by the parties, such as the plaint
(claim) and the defense, which outline the parties' positions and allegations. Applications,
on the other hand, are focused on specific issues or requests and may include supporting
affidavits, legal arguments, and relevant evidence.
 Service: Both pleadings and applications must be served on the opposing party, except in
certain cases such as ex parte applications or certain injunctions. Proper service ensures
that the other party is notified and given an opportunity to respond or participate in the
proceedings.
It's important to note that while applications and pleadings serve different purposes and are
filed at different stages of litigation, they both play crucial roles in the overall process of
resolving legal disputes.

How does a party respond to applications?

A party can respond to applications in the following ways:

 Notice of Preliminary Objection: The respondent may raise a preliminary objection in
specific circumstances that can dispose of the case. These objections include matters of
limitation of time, lack of jurisdiction, and res judicata (a case that has already been
determined between the same parties over the same subject matter).
 Replying Affidavit: The respondent can file a replying affidavit to respond to the facts
raised in the application. They address each paragraph of the supporting affidavit and
provide counterarguments or clarifications. The replying affidavit is typically sworn by
the respondent, not the advocate.
 Statement of Grounds of Opposition: The respondent can file a statement of grounds of
opposition, which outlines the specific grounds on which they oppose the application.
This is usually prepared and signed by the advocate representing the respondent.
 Overall, the respondent has the opportunity to present their objections, arguments, or
opposition to the application through preliminary objections, replying affidavits, or
statements of grounds of opposition. The court will consider these responses in reaching a
decision on the application.

What are the rules on serving an application?

 The application must be served on the respondent at least 3 days before the hearing date.
 The applicant may be allowed to file a supplementary affidavit in response to the
respondent's replying affidavit or statement of grounds of opposition, with leave of the
court.
 If the respondent fails to respond to the application or fails to serve the applicant within 3
days before the hearing, the application may be heard ex parte (without the respondent's
participation).
 The court has the discretion to set aside any ex parte order made and may limit the time
for oral submissions or allow written submissions.
 Traditionally, applications are heard in chambers, but the court may order an open court
hearing if it deems it appropriate.

What are notice of motions and their purpose in legal proceedings?

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 A Notice of Motion refers to formal applications made to the court in civil proceedings.
According to Order 51 Rule 1, all applications to the court must be made by way of
notice of motion and be heard in open court unless otherwise specified by the court or the
rules. Notice of motions are typically used when a party seeks to address specific issues
or seek interim relief before the entire suit is heard or determined. They serve as a formal
means of requesting the court's intervention or decision on a particular matter during the
course of the litigation process.
 While there may be exceptions where other types of applications, such as originating
summons or chamber summons, are required based on specific rules or court directions,
notice of motions are generally the approach for making applications in civil proceedings.
 The notice must include a concise statement of the nature of the claim or the relief sought,
along with any evidence relied upon, usually in the form of an affidavit.
 It is important to give notice to the other party to ensure procedural fairness, unless the
court determines that delay may seriously prejudice the party making the application, in
which case an ex parte order may be granted.
 The affected party also has the right to move the court to set aside an order made through
a Notice of Motion

What are the circumstances a notice of motion can be used?

Order 51 Civil Procedure Rules provides for different kinds of applications that can be
done through Notice of Motions:
A Notice of Motion can be used in various circumstances within legal proceedings. Here are
some common situations where a Notice of Motion is applicable:
 Application for Orders for Judgment on Admission: When a claim is filed and the
defendant responds, a Notice of Motion can be used to seek confirmation that the
defendant has admitted the entire claim or specific paragraphs of the claim.
 Application for Summary Judgment Order: If it is evident that there is no genuine
defense and the claim is for a liquidated amount, a Notice of Motion can be filed to
request a summary judgment order, which would expedite the resolution of the case.
 Application for Stay of Proceedings: In certain situations, a party may seek to
temporarily halt or suspend the ongoing proceedings. A Notice of Motion can be used to
request a stay of proceedings.
 Application for Lifting, Variation, or Discharge of an Injunction: If an injunction has
been issued by the court, a Notice of Motion can be utilized to apply for the lifting,
variation, or discharge of the injunction based on changing circumstances or legal
arguments.
 Application for Release Orders (e.g., Habeas Corpus Order): When a person is
unlawfully detained or imprisoned, a Notice of Motion can be filed to request the court to
issue a release order, such as a habeas corpus order, to secure their freedom.
 Substantive Application for Judicial Review: In cases where illegal administrative
actions are being challenged, a Notice of Motion can be used to initiate a substantive
application for judicial review, seeking the court's intervention to address the legality of
such actions.
 Burial Disputes: In cases involving disputes over burial rights or related matters, a
Notice of Motion can be utilized to bring the matter before the court for resolution.
 Certain Constitutional Applications: When a constitutional question arises during an
ongoing case, a Notice of Motion can be used to move the matter to a higher court, such
as the High Court, for consideration.

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In urgent situations where irreparable harm may occur, the court has the authority to grant an
ex parte order, which means it is issued after hearing only one side. However, the party
obtaining the ex parte order must undertake to file the substantive suit and serve the other
party within a specified period set by the court.

What are originating summons and their purpose in legal proceedings?

 Originating summons is a simplified and expedited procedure used in legal proceedings
for simpler and shorter matters. Its purpose is to provide a speedier process by eliminating
the need for witnesses and relying solely on affidavits as evidence.
 It is only applicable when the Civil Procedure Rules or other statutes specifically provide
for its use.
 In an originating summons, the question for determination by the court is raised directly
in the summons itself, and supporting evidence is presented through affidavits.
 The summons presents the issues in a concise manner but with sufficient particulars to
enable the court to understand the cause of action and the relief sought.
 Originating summons is commonly used in cases where the parties have a special
relationship, such as agreements for the sale or purchase of immovable property. It is
specifically applicable when the existence and validity of the agreement or contract are
not in dispute.
 Additionally, Order 37 of the Civil Procedure Rules deals with Caveats, which are also
filed through originating summons.
 Overall, originating summons streamlines the process for certain types of cases, allowing
for a more efficient and focused resolution of the issues at hand.

What are circumstance a party may approach court by OS?

Originating summons (O.S.) is used in specific circumstances as provided by the rules or

specific legislation. Some of these circumstances include:
 Application for extension of time under the rules of the Limitations of Actions Act.
 Application for land ownership based on adverse possession.
 Application for reconstruction of files.
 Fixing of the cause of originating summons for directions by parties.
 Use of O.S. when a specific legislation expressly provides for its use, such as the
Advocates Act, Limitation of Actions Act, Succession Act, and other relevant laws.
In these situations, the O.S. procedure is deemed appropriate for the nature of the case,
allowing for a streamlined and efficient process.

What is the procedure for approaching the court through originating summons?

The procedure for approaching the court by way of originating summons (O.S.) is as follows:
 Filing: The party wishing to initiate the proceedings files the originating summons with
the court.
 Listing for Directions: The registrar of the court will schedule a directions hearing
before a judge in chambers within 30 days of filing the O.S. This hearing serves to
provide guidance and instructions for the further proceedings.
 Appearance and Hearing: After the directions hearing, the date and time for attendance
under the O.S. will be fixed for a hearing in chambers before the assigned judge. Parties
involved in the case are required to appear before the judge at the scheduled hearing.

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 Disputed Facts: If there is a dispute regarding the correctness or sufficiency of the facts
stated in the summons and affidavits, the judge may order additional evidence to be
presented to support the summons. The judge has the authority to give directions for the
trial and may allow amendments to ensure the relevance of the summons to the facts of
the case.
 Continuation as a Plaint: If, at any stage of the proceedings, the court determines that it
would be appropriate to continue the case as if it had begun by filing a plaint (a formal
written statement of the plaintiff's case), the court may order such continuation. In this
case, any affidavits filed will stand as pleadings, which are the formal statements of the
parties' claims and defenses.
 Further Particulars: The court may direct the parties to provide further particulars
(additional details or information) or may prohibit them from filing further particulars.
Additionally, the court may allow parties to apply for particulars of the affidavits filed in
the case.
By following these procedural steps, the court ensures an orderly and efficient process for
addressing matters brought by way of originating summons.

Why do we say that when you approach the court by way of OS it's a speedier way of
approaching the courts?

When you approach the court by way of originating summons (O.S.), it is considered a
speedier way of approaching the courts for several reasons:
 Concise Presentation: The issues to be addressed are already presented within the
originating summons itself. This means that the scope of the case is narrowed down, and
the court can directly focus on the specific matters raised in the summons.
 No Viva Voce Evidence: Unlike in a traditional trial, there is no need for viva voce (oral)
evidence in an O.S. The facts and evidence to be relied upon are presented through
affidavits, which are sworn statements. This eliminates the need for lengthy witness
testimonies, cross-examination, and other processes that can prolong the proceedings.
 Timely Directions: Once the originating summons is filed, the deputy registrar schedules
it for directions within 30 days. This ensures that the case moves forward promptly and
allows for the court to provide necessary guidance and instructions to the parties
involved.
 Simultaneous Filing: When filing the originating summons, the party may also file the
supporting documents and ask for the issuance of summons. This streamlines the process
by combining the filing of the claim and the request for summons into a single step.
 Inclusion of Summons: The originating summons itself serves as the summons to the
other parties. This means that the summons, which typically requires separate extraction,
signing, and serving, is already contained within the originating summons. This simplifies
the service of documents and reduces administrative steps.
 Defined Issues for Determination: The originating summons clearly sets out the issues
for determination by the court. This allows the parties and the court to focus on these
specific issues, promoting efficiency in addressing the key matters at hand.

By utilizing the O.S. procedure, the court can handle cases in a more streamlined and
expedited manner, resulting in a speedier resolution of legal proceedings.

What are chamber summons and their purpose in legal proceedings?

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Chamber Summons is a specific type of application used to seek orders within a pending suit.
Here's the information you provided on Chamber Summons and its usage:
 Application within a Pending Suit: Chamber Summons are utilized when seeking
orders within a lawsuit that is already in progress. Unlike Notice of Motion, which is used
to initiate applications, Chamber Summons is employed within an existing case.
 Specific Rule-Based Application: Chamber Summons must be brought and sought
under specific rules provided by the law. This distinguishes it from Notice of Motion,
where provisions under the law are referenced when approaching the court.
 There are no witnesses and evidence is by way of affidavit.
 Where the existence of the agreement or contract is not in dispute
 Historical Origins: Chamber Summons were historically heard in chambers, which
explains the name given to this type of application.
 Orders and Ex Parte Applications: Chamber Summons are typically used to request
specific orders from the court. However, courts are generally reluctant to grant ex parte
orders in Chamber Summons applications, meaning that the court prefers to hear
arguments from both sides before making a decision.
 Importance of Service: Proper service of the Chamber Summons to all relevant parties is
crucial. Serving the application on all involved parties ensures that they are aware of the
application and have the opportunity to respond or be heard.
 It is used as an application for land ownership by virtue of adverse possession

Where the aim is to ask the court to grant leave to enter judgment against the government in
an interpleader case, Chamber Summons can be used. This application would seek a
declaration that you are the rightful owner of the property in question because the
government has failed to enter appearance, file a defense, or present a claim for that property,
remaining unresponsive.

What are inter pleader proceedings?

Section 58 And Order 33&38

Section 58 Civil Procedure Act – Interpleader proceedings or application occurs in

situations a third party is in custody of a property claimed by two or more claimants. The
third party will then move to court to determine the true owner of the property.

Inter-pleader proceedings refer to a legal process initiated through an originating summons

(O.S.) or chamber summons when a person holds property that is being claimed by multiple
individuals. It is a means for the court to determine the rightful owner of the property in
question. Here are some key points about inter-pleader proceedings:
 Purpose: The purpose of inter-pleader proceedings is to resolve disputes over the
ownership of property held by a third party. It allows the person holding the property
(referred to as the applicant or inter-pleader) to seek the court's intervention and have the
court determine the lawful owner.
 Application Types: Inter-pleader applications can be made in two situations. Firstly, in
the case of a pending suit, where there is already a lawsuit related to the property. In this
scenario, the application is made through a chamber summons. Secondly, in the case of a
fresh new suit, where no previous lawsuit exists, the application is made through an
originating summons according to Order 37.

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 Multiple Claimants: Inter-pleader proceedings arise when multiple individuals claim the
same property held by another person. The inter-pleader (the current holder of the
property) initiates the application to seek a resolution from the court.
 Stay of Proceedings: If the inter-pleader application is made by a defendant in a pending
suit, the court has the power to stay all further proceedings in that suit. This means that
the original suit will not proceed until the issue of ownership is resolved through the
inter-pleader proceedings.
 Chamber Summons: In certain situations, where there is already a pending suit, the
defendant holding the property may choose to make the inter-pleader application through
a chamber summons instead of an originating summons. This is done to prioritize the
determination of ownership before proceeding with the existing lawsuit.
 Issue Framing: Once the claimants respond to the summons, the court will frame the
issues to be addressed in the inter-pleader proceedings. The court will determine the roles
of the claimant and respondent, or whether they will be referred to as plaintiff or
defendant.
 Summary Disposition: In some cases, with the consent of one or both parties and
considering the value of the subject matter, the court may decide to dispose of the merits
of the claim summarily. This means that the court can make a swift decision on the matter
without a full trial, based on the available evidence and circumstances, as long as it is
deemed fair and just.
Inter-pleader proceedings offer a legal avenue to resolve disputes over conflicting claims to
property, ensuring that the rightful owner is determined through a judicial process.

Why do you think it's the courts that decides who is the plaintiff and who is the
defendant?

The courts are responsible for determining who will be referred to as the plaintiff and who
will be referred to as the defendant in inter-pleader proceedings for several reasons:
 Neutrality: The courts aim to maintain neutrality and impartiality in the proceedings. By
deciding the roles of the parties, the court can ensure fairness and prevent any bias or
advantage towards one party over the other.
 Judicial Oversight: The court's involvement in determining the roles of the parties
allows for judicial oversight throughout the inter-pleader proceedings. The court can
manage the case effectively and ensure that the process adheres to legal principles and
procedural requirements.
 Dispute Resolution: The court's decision on the roles of the parties helps in resolving the
dispute over the ownership of the property. By assigning the roles of plaintiff and
defendant, the court establishes the framework for presenting arguments, evidence, and
legal submissions, leading to a fair and orderly resolution of the dispute.

What are the grounds for Interpleader (originating summons)?

The applicant must satisfy the court by way of affidavit that:

a) The Applicant is a neutral party with no claim or interest whatsoever, in the subject
matter other than costs/charges.
b) There is no collusion between the applicant and either of the parties; and

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c) The claimant is willing and ready to deal with the subject matter in whatever manner the
court directs (order 27 rule2)

What happens when here is a failure to appear?

When there is a failure to appear in an interpleader case, where the claimant or respondent
fails to respond to the summons, substantiate their claim, or comply with any order made
after their appearance, the court may take certain actions. Here is what typically happens in
such a situation:
 Barred Claim: The court has the authority to make an order declaring the non-appearing
party (the claimant or respondent) and any other person claiming under them forever
barred against the applicant. This means that if the party fails to appear or comply with
court directions, they are effectively prohibited from making any claim to the property or
money in question. This bar extends not only to the non-appearing party but also to their
assigns, agents, and heirs.
 Permanent Restriction: Once the court has issued an order barring the non-appearing
party and those claiming under them, it serves as a permanent restriction. This means that
they are permanently prohibited from making any claim to the property or money in the
future. The restriction remains in place indefinitely, preventing them and anyone
connected to them from asserting any rights or interests in the subject matter of the
interpleader case.

What happens when one of the parties is the government?

When one of the parties involved in an interpleader case is the government, the process and
procedures may differ from those applicable to regular individuals. Here's an overview of
what typically happens when the government is a party to an interpleader case:
 Different Procedure: Dealing with the government in an interpleader case involves a
different procedure compared to regular individuals. The process may include making a
claim, defending that claim, and following specific steps to ensure satisfaction and
execution for dissatisfied parties.
 Failure to Enter Appearance or Take Directions: If the government claims a property
but fails to enter appearance (i.e., fail to formally respond to the interpleader summons) or
take directions from the court, no order will be issued automatically to bar the
government from claiming the property. However, the other party involved in the case
(the claimant against the government) can make an application by chamber summons.
This application must be served on the government, requesting that they be barred from
claiming the property due to their lack of response or non-compliance.
 Chamber Summons for Bar Order: The claimant against the government must file a
chamber summons in court, serving it on the government. The purpose of this application
is to ask the court to declare the government forever barred from claiming the property, as
they have not entered appearance or filed a response. The claimant seeks to be declared
the rightful owner of the property.
 Court Decision on Disputed Facts and Law: In cases where the issue revolves around a
question of law and facts that are not disputed, the court may decide on that question
without the need for a full trial of the issue. This allows for a quicker resolution based on
the available information.

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 Reliefs Granted Despite Divergent Titles: The court may grant reliefs to the applicant
(claimant against the government) even if the titles held by the claimant and the
government have no common origin and may be adverse or independent of each other.
This means that the court can still make a decision and provide remedies, even if the titles
to the property are different or conflicting.

Distinguish between Chamber Summons, Notice Of Motion, Originating Summons

What are petitions?

Petitions are legal documents used to request the court to make a declaration or address a
specific matter

When are petitions used?

 Matrimonial Causes: Petitions are commonly used under the Matrimonial Causes Rules
to seek divorce. Grounds for divorce, such as desertion, cruelty, or irretrievable
breakdown, can be stated in the petition.
 Bankruptcy Proceedings: In bankruptcy cases, petitions are filed under the Bankruptcy
Rules to have the court declare someone as bankrupt. This declaration carries
consequences such as the inability to pay debts, limitations on holding public office,
appointment of a receiver to manage and sell assets, and the payment of debts to creditors
in order of priority.
 Winding Up Proceedings: When seeking to wind up a company, a petition is filed with
the court. The court appoints a receiver or manager to dispose of the company's assets and
pay the creditors in order of priority.
 Constitutional Litigation: Petitions are used in civil litigation to raise constitutional
questions or challenges. Constitutional litigation seeks the resolution of constitutional
matters, addressing violations of people's rights and seeking remedies from the court.
 Employment Matters: Petitions can be used to address employment-related issues, such
as violations of rights. Memorandum of claim is a common format for employment-
related petitions, outlining the parties, the claims, and the reliefs sought.
 Mental Health: Petitions are filed to have the court manage the property of someone
under the Mental Health Act. The court may appoint a guardian to manage the person's
interests and property.

laws. Petitions are typically supported by an affidavit that sets out the relevant facts. The
petitioner, not the advocate, usually swears the affidavit. In certain cases, such as children
matters or landlord-tenant disputes, other forms of communication, such as letters or plaints,
may also be accepted by the court.

5. What are the types of petitions and their application/use?

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Types of Petitions and Their Application/Use:

Election Petition:
 An election petition is filed to challenge the validity or outcome of an election. It is
commonly used in electoral disputes to seek redress for alleged electoral malpractices
or irregularities.
 The purpose of an election petition is to ensure fair and transparent elections and to
protect the democratic process.

Constitutional Petition (Enforcement of Rights):

 A constitutional petition is filed to enforce fundamental rights and freedoms
guaranteed by the constitution.
 It is used when an individual or group believes their constitutional rights have been
violated or infringed upon by the actions or laws of the government or any public
authority.
 The petition seeks remedies or relief from the court to restore or protect constitutional
rights.

Petition for Grants:

 A petition for grants is commonly associated with probate or estate matters.
 It is filed to request the court's approval for the distribution of assets or the
administration of a deceased person's estate.
 The petition provides details about the deceased's assets, debts, and beneficiaries, and
seeks the court's authorization to carry out the distribution or administration.

Divorce Petition (Dissolution of Marriage):

 A divorce petition is filed to initiate the legal process of ending a marriage.
 It states the grounds for divorce, such as irretrievable breakdown of the marriage,
adultery, or cruelty, and seeks the court's intervention in dissolving the marriage.
 The petition addresses various issues related to the divorce, including child custody,
spousal support, division of property, and visitation rights.

Petition for Admission to the Bar:

 A petition for admission to the bar is filed by law graduates seeking to be admitted as
practicing lawyers.
 It is submitted to the relevant authority or bar association, and typically includes
information about the applicant's legal education, character, and fitness to practice
law.
 The petition requests the authority to grant the applicant admission to the legal
profession.

Petition to be Appointed as Senior Counsel:

 A petition to be appointed as senior counsel is filed by experienced and distinguished
advocates seeking recognition as senior members of the legal profession.
 The petition highlights the advocate's qualifications, expertise, and contributions to
the legal field, and requests the court or appropriate authority to confer the
designation of senior counsel.

What are election petitions and when are they used?

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Election Petitions are legal actions brought to question the validity of an election.

Purpose: Election Petitions are used to challenge the validity of:

 Presidential elections.
 Elections for members of the national assembly.
 Situations where a seat in the national assembly has become vacant.

Election Petitions are filed with the objective of challenging the outcome of an election and
seeking remedies, such as declaring the election invalid or ordering a recount or a fresh
election.

What information do election petitions contain?

Election Petitions can be filed based on various grounds, including:
 Allegations of corrupt practices during the election, such as voter bribery or illegal
exchanges of money.
 Lack of a majority of lawful votes.
 Substantial non-compliance with election regulations.

What is the prescribed Form of filing election petitions?

The form for filing Election Petitions is prescribed under Rule 4 of the National Assembly
and Presidential Elections Act No 24/2011 (Election Rules).
1. Burden and Standard of Proof: In Election Petitions, the burden of proof is higher
than in civil cases. It is not on a balance of probability, as in civil cases, but also not
as high as in criminal cases. The standard of proof is slightly higher than a balance of
probability.

What are some examples of election irregularities?

Election Petitions can be based on various irregularities, such as:

 Closure of a polling station before the designated closing time.
 Instances where election regulations were not followed or there was non-compliance.

What is the difference between like petitions made in the employment court and
statements of claim made in the employment court?

In the context of the employment court, there are differences between petitions and
statements of claim. Here's an explanation based on the information you provided:
Petitions in Employment Court:
 Petitions are typically used in employment matters when there are constitutional
violations or fundamental rights at stake. They are employed to address issues where
rights have been violated, and the court is petitioned to provide remedies or address
the constitutional question. Petitions in employment cases are focused on
constitutional matters and violations.
Statements of Claim in Employment Court:
 Statements of Claim are used in employment cases where the focus is on seeking legal
remedies for employment-related disputes. They are often utilized when individuals
have already been terminated, and the objective is to seek compensation or other legal

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 remedies for the losses suffered. Statements of Claim outline the claims, facts, and
reliefs sought, and they are similar to plaints in civil litigation.
In summary, petitions in the employment court are used when there are constitutional
violations or fundamental rights issues, while statements of claim are employed to seek legal
remedies in employment-related disputes, such as compensation for wrongful termination or
other employment-related issues.

What is judicial review?

Judicial review is the process by which superior courts exercise control over other bodies,
such as public bodies or officials, to correct any illegality or adverse effects on the rights of
individuals resulting from their actions, decisions, or procedures.

What laws govern judicial review?

Judicial review is governed by Section 8 and 9 of the Law Reform Act Cap 26 and Order 53
of the Civil Procedure Rules.

What is the purpose of judicial review?

The purpose of judicial review is to question and potentially reverse an illegal action,
decision, or procedure undertaken by a public body or official that may have adverse effects
on the rights of individuals.

Can private institutions dealing with public matters be subject to judicial review?

Yes, private institutions that deal with public matters can also be subject to judicial review if
they have taken any illegal actions, decisions, or procedures that affect the rights of the
public.

What are the two stages of judicial review?

The two stages of judicial review are the leave stage and the substantive stage.

During the leave stage, the party seeking judicial review files documents, usually in an ex
parte manner (without the presence of the other party), to secure permission (leave) from the
court to proceed with the review. The documents involved include the certificate of urgency,

During the substantive stage, the other party, typically the public body being challenged, is
served and invited to participate in the review. The substantive stage is conducted through a
notice of motion, where the party seeking review presents their arguments and seeks specific
orders or directions from the court.

What are the Remedies available under judicial review?

Under Judicial Review, the following remedies or orders can be granted by the court:

 Mandamus: This is an order compelling a public authority to perform a statutory duty

that they have wrongfully failed to do. It requires the authority to take action that they are

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 legally obligated to take. For example, if the government fails to pay a decreed sum after
a trial, mandamus can be sought to compel them to make the payment. However, before
seeking mandamus, it is generally required to have demanded that the authority perform
the duty and provided them an opportunity to do so.
 Certiorari: This is a quashing order that nullifies a decision, action, or process initiated
by a public body. It is used when a decision or action is deemed unlawful or in violation
of legal principles. For instance, if a government body makes an illegal decision to
dispose of waste in a residential area, affected individuals can seek certiorari to have the
decision quashed, as it violates their rights.
 Prohibition: This order restrains a public authority from carrying out an action that is
likely to be wrongful or unlawful. It is sought when the authority is planning or about to
undertake an action that goes against the law or constitution. For example, if a public
body has plans to carry out an activity that is against legal regulations, an application for
prohibition can be made to prevent them from proceeding with the planned action.

It is important to note that an application for Judicial Review traditionally starts in the High
Court. Although the Fair Administrative Actions Act grants the magistracy the power to
handle judicial review cases, specific rules and guidelines for the magistracy are yet to be
established. Therefore, currently, the High Court remains the usual venue for judicial review
applications.

Please keep in mind that the availability and specific applicability of these remedies may vary
depending on the jurisdiction and applicable laws. It is recommended to consult the relevant
laws and seek legal advice for accurate information and guidance when seeking remedies
under Judicial Review.

What are the ways leave may be granted ?

When granting leave (permission) for a Judicial Review application, the court may do so in
two ways:
1. Free Leave: This means that the court grants leave without any conditions or
requirements. The court will review the chamber summons, statutory statement, and
verifying affidavits, and if satisfied with the application, they will grant leave freely.
2. Leave on Terms: In some cases, the court may grant leave on certain terms or
conditions. These terms may include:
 Costs: The court may specify who will be responsible for paying the costs of the
proceedings. This can be the applicant or the respondent.
 Security for Costs: The court may require the applicant to provide security for costs,
especially if there are concerns about the strength of the claim or the applicant's
ability to meet potential costs.
 Undertakings: The court may request the applicant to provide undertakings, which are
promises or commitments, to address any concerns or deficiencies in the application.
For example, the applicant may undertake to provide additional material facts or to
cover any losses incurred by the respondent.
Once leave is granted, the court will issue an order of grant, which will be sent to the
applicant. This order will also be sent to the respondent, notifying them of the court's decision
to grant leave for the Judicial Review application to proceed.

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What are the considerations the court looks at before granting reliefs sought under JR
process

When considering the reliefs sought under the Judicial Review (JR) process, the court takes
several factors into consideration:

 Failure of Public Duty: The court examines whether there has been a failure on the part
of the public authority to fulfill its duty. If such a failure is established, the court may
grant reliefs such as mandamus, which compels the authority to carry out its statutory
duty.
 Locus Standi of the Applicant: The court evaluates whether the applicant has the legal
standing (locus standi) to bring the application. This involves assessing how the applicant
is affected by the actions or decisions of the administrative body. The applicant may be
representing others whose rights have been violated, or they may be personally affected
by the violations.
 Delay: The court considers whether the application has been made promptly or if there
has been an unjustified delay. Delay can affect the application under the doctrine of
laches. If the delay is justified and does not cause injustice to the other party, it may not
be a complete bar to the application. However, if the delay is unjustified or causes an
injustice, it may negatively impact the application.
 Merit of the Case: The court evaluates the merit of the case and determines if it has
substance. Frivolous cases that lack merit may be refused by the court.

In situations where the court is uncertain about any of these matters, it may call for the
attendance of the applicants to seek clarification and gather more information. This is
particularly relevant when applications are filed under a certificate of urgency, and the court
gives directions to the applicants.

Since the application is typically ex parte (without the presence of the other party), there is a
significant responsibility placed on the applicant to be honest and exercise utmost good faith.

The applicant should not conceal material facts that would impact the court's decision. The
supporting affidavit for the application for leave should clearly present all relevant
information. If leave is granted, it can be challenged by the other party, but it is generally
advisable to wait and defend the matter at the substantive stage of the JR process.

What happens once the application for judicial review under the leave stage has been
granted?

Once the application for Judicial Review under the leave stage has been granted, the
following steps and considerations come into play:
 Making the Application: The application itself is made by filing a notice of motion
(NOM) within 21 days of the grant of leave. The application is made to the High Court
and is an inter-partes proceeding, meaning all parties involved are notified and given the
opportunity to be heard.
 Service of the Notice: The notice of motion must be served on every person likely to be
affected by the order sought in the application. A supporting affidavit containing the
names and addresses of the persons served, along with all relevant details of service, must
be filed in the court records before the hearing. It is important to comply with the
requirements of proper service and documentation.

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 Fixing the Hearing: The NOM must be served, and the hearing date should be fixed
within 8 working days after service. This ensures that the parties have sufficient time to
prepare and present their arguments and evidence.
 Scope of the Hearing: During the hearing, the parties are limited to the grounds and
relief set out in the application for leave. The applicant cannot introduce new orders or
seek additional reliefs that were not indicated in the leave stage. However, there is room
for amendment, and the applicant can apply for permission to amend the statement of
claim or seek permission to file further affidavits to address newly arising matters.
 Order of Hearing: The applicant is heard first, presenting their arguments and evidence.
Then, the respondent (the public authority or body being challenged) has an opportunity
to present their case. Finally, any other persons who may be affected by the outcome of
the case, but were not initially served with the notice, may be heard. It is essential to
adhere to the procedural requirements and court directions during this stage to ensure a
fair and orderly process.

Who are the parties to a lawsuit?

In a lawsuit, the parties are the individuals or entities directly involved in the legal dispute.
Based on the information provided, the parties to a lawsuit can include:
 Plaintiff: The plaintiff is the party initiating the lawsuit. They are the "real party in
interest" who is entitled to seek the relief or remedy sought in the plaint. The plaintiff is
the one who goes to court to pursue their claim.
 Defendant: The defendant is the party against whom the lawsuit is filed. They are the
party being sued by the plaintiff. The defendant must respond to the allegations and
defend their position in the case.
Additionally, there are situations where a special relationship exists, creating a different party
dynamic:
 Executor/Administrator: In cases involving an estate, an executor or administrator may
sue or be sued on behalf of the estate. They act as the legal representative of the estate
and have the authority to bring legal actions or defend against them.
 Trustee: In cases involving a trust, a trustee may sue or be sued on behalf of the trust.
The trustee has the legal authority to take legal action to protect the interests of the trust
and its beneficiaries.
 Collection Agency: In some cases, a collection agency may be authorized to sue on
behalf of the creditor to collect debts that have been assigned to them for collection. The
collection agency acts as an agent of the creditor to pursue legal remedies for debt
recovery.
These parties represent the key individuals or entities directly involved in a lawsuit. Their
roles and responsibilities may vary depending on the nature of the case and the specific
circumstances. It is important to note that the specific parties involved in a lawsuit can vary
based on the jurisdiction and the particular legal situation at hand.

Explain Status of a party to a suit

The status of a party in a lawsuit refers to the type of entity or individual that describes the
party involved.

 The status of a party is typically described both in the caption of the lawsuit and within
the body of the plaint.

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 The most common types of parties in a lawsuit include individuals, corporations,
partnerships, other unincorporated businesses, and governmental agencies.
 The status of the party is mentioned in order to provide clarity and identify the legal
capacity of the party involved.
 In certain situations, the status of a party may require special consideration. For example:

- If a party is a minor (a person under the age of majority), their status as a minor will be
described in the caption and in the body of the plaint.
- If a party has an intellectual disability and is under the protection of a manager or
guardian appointed under the Mental Health Act, the status of the party and the role of the
manager or guardian will be specified in the caption and in the plaint.

 The description of the party's status helps to ensure that the appropriate legal procedures
and protections are followed in the lawsuit.

Explain capacity in civil cases

Capacity in civil cases refers to the legal right of a party to sue or be sued. Here are some
important points about capacity:
 Parties named in the plaint must have the legal capacity to bring or defend a lawsuit. This
means they must have the legal right to pursue their claims or respond to the claims made
against them.
 Children and individuals who are deemed incompetent do not have the capacity to
independently initiate or participate in lawsuits. They lack the legal capacity to pursue
their own lawsuits.
 In cases involving the estate of a deceased person, capacity to sue on behalf of the estate
is obtained through a limited grant. This grant gives the person representing the estate the
legal authority and capacity to bring the suit to court on behalf of the deceased person.
 It is important to note that a deceased person cannot pursue their own lawsuit, even if
someone is acting on their behalf. The lawsuit must be brought in the name of the legal
representative or executor of the estate, who has the necessary capacity to act on behalf of
the deceased person.
 Capacity is crucial in ensuring that only individuals or entities with the legal right to do so
can initiate or defend lawsuits. It helps maintain the integrity of the legal process and
protects the interests of all parties involved.

What happens where the minor is the plaintiff?

When a minor is the plaintiff in a lawsuit, the following steps are typically followed:
 The suit must be instituted in the name of the minor by a person called the "next friend"
of the minor. The next friend acts on behalf of the minor in bringing the lawsuit. The next
friend must provide a written authority to the advocate representing the minor, and this
authority is filed together with the plaint (the formal written statement of the plaintiff's
claims) (Order 32 Rule 2(1) and (2)).
 The next friend, as the representative of the minor, will work with the advocate to prepare
and file the necessary documents, including the plaint, authority, verifying affidavit, list
of documents, and statements of witnesses who will support the facts in issue.
 In cases where the defendant is also a minor, the court, upon being satisfied of their
minority, will appoint a guardian ad litem to defend the suit on behalf of the minor

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 defendant (Order 32 Rule 3(1)). This ensures that both parties have appropriate
representation.

It is important to note that the consent of the next friend of the minor is required, indicating
their agreement to the advocate representing the minor. This consent helps establish that the
legal action is in the best interest of the minor. The court considers the best interest of the
minor when appointing a next friend or guardian ad litem and when making decisions
throughout the legal proceedings.

In summary, when a minor is a plaintiff in a lawsuit, the next friend of the minor brings the
suit in the minor's name and provides a written authority to the advocate. In cases where the
defendant is also a minor, a guardian ad litem is appointed to represent the minor defendant.
The consent of the next friend is necessary, ensuring that the legal action is in the best interest
of the minor. These procedures ensure that minors are appropriately represented and their
rights and interests are protected throughout the legal process.

What happens where the minor is a defendant?

When a minor is a defendant in a lawsuit, the following steps are typically followed:
 The court appoints a guardian ad litem to defend the suit on behalf of the minor defendant
(Order 32 Rule 3(1)). This is different from the role of the next friend, which is used
when the minor is the plaintiff.
 To obtain the appointment of a guardian ad litem, the plaintiff or the plaintiff's advocate
can make an application to the court (Order 32 Rule 3(2)). This application is typically
made through a motion or a petition supported by an affidavit. The affidavit should verify
that the proposed guardian has no adverse interest to that of the minor in the suit and that
they are competent to be appointed as the guardian ad litem (Order 32 Rule 3(3)).
 The plaintiff, being the party with an interest in the case, is usually the one who makes
the application for the appointment of the guardian ad litem. This can be done through a
notice of motion or a petition.
 Once the guardian ad litem is officially appointed by the court, the lawsuit can proceed
with the name of the guardian ad litem representing the minor defendant. The guardian ad
litem assumes the responsibility of defending the suit on behalf of the minor defendant.
 You must indicate ex parte understands that you are seeking this order without the
involvement of the respondent. Otherwise you will be asked to serve the respondent.

It is important to note that until the guardian ad litem is appointed, the lawsuit cannot proceed
properly against the minor defendant. The appointment of the guardian ad litem ensures that
the minor's interests are protected and represented in the legal proceedings. The guardian ad
litem is not personally responsible for settling any claim if the minor defendant is found
liable.
In summary, when a minor is a defendant in a lawsuit, a guardian ad litem is appointed by the
court to defend the suit on behalf of the minor. The plaintiff or the plaintiff's advocate can
make an application for the appointment of the guardian ad litem, and once appointed, the
guardian ad litem represents the minor defendant in the proceedings. This ensures that the
minor's rights and interests are safeguarded during the legal process.

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What is the difference in procedure when the minor is a plaintiff and when the miner is
the defendant?
The difference in procedure between a minor being a plaintiff and a minor being a defendant
is as follows:
Minor as a Plaintiff:
 The person acting on behalf of the minor is called the next friend.
 The next friend files the lawsuit in the name of the minor plaintiff.
 The only documentation required is a consent letter from the next friend, confirming their
consent to act as the next friend for the minor plaintiff.
 The consent letter is an important document that confirms the capacity and authority of
the next friend to represent the minor.
 The next friend is responsible for signing the authority letter to the advocate, which is
filed along with the plaint and the verifying affidavit.

Minor as a Defendant:
 The person acting on behalf of the minor is called a guardian ad litem.
 The court appoints a guardian ad litem to defend the lawsuit on behalf of the minor
defendant.
 The plaintiff or the plaintiff's advocate makes an application to the court for the
appointment of a guardian ad litem.
 The application is typically made through a motion or a petition supported by an affidavit.
 The affidavit verifies that the proposed guardian ad litem has no adverse interest to that of
the minor defendant and is competent to be appointed as the guardian ad litem.
 Once appointed by the court, the guardian ad litem assumes the responsibility of
defending the lawsuit on behalf of the minor defendant.

In summary, when a minor is a plaintiff, the person acting on their behalf is the next friend,
and the only required documentation is the consent letter from the next friend. However,
when a minor is a defendant, a guardian ad litem is appointed by the court, and an application
needs to be made to the court for the appointment of the guardian ad litem.

When they are pointing the guardian at litem does a person have the right to say I don't
want to act on behalf of the minor?

When a guardian ad litem is appointed for a minor defendant, the person nominated to act as
the guardian ad litem may have the right to decline the appointment. This is done to ensure
that the person representing the minor indeed has the best interests of the child in mind.
It's important to note that there is no separate application process to be a guardian ad litem.
Instead, it is the plaintiff who applies to the court to appoint a guardian ad litem for the minor
defendant. The plaintiff has the responsibility to demonstrate to the court that the proposed
guardian ad litem is suitable and has the best interests of the minor at heart. The plaintiff
typically provides grounds for the appointment, such as being the minor's parent, guardian, or
another person with a close relationship to the minor.
However, the final decision on the appointment of a guardian ad litem rests with the court.
The court will consider the best interests of the minor and make a determination on whether
the proposed guardian ad litem is appropriate for the role.

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In the event that the minor refuses to accept the appointed guardian ad litem, the proceedings
may be tolled, meaning that the running of time stops until the minor reaches the age of
majority. This ensures that the minor has the opportunity to participate in the proceedings
when they are capable of understanding and making decisions for themselves.

What are other situations in which a guardian at litum can be filed?

In addition to the situations mentioned previously, a guardian ad litem can also be appointed
in other specific situations, including:
 Mental Health Act: In cases involving individuals with intellectual disabilities or mental
health issues, a guardian ad litem may be appointed to represent their interests in legal
proceedings. The guardian ad litem acts as a legal representative to ensure that the
person's rights and well-being are protected during the legal process.
 Probate and Administration: In probate and administration matters, a guardian ad litem
can be appointed when someone takes a limited grant on behalf of a deceased person.
This occurs when a person is granted limited authority to act on behalf of the estate, such
as initiating or defending a lawsuit on behalf of the deceased. The guardian ad litem
ensures that the interests of the estate and its beneficiaries are properly represented in the
legal proceedings.
These situations may require the appointment of a guardian ad litem to ensure that individuals
who are unable to represent themselves or who have specific legal needs receive appropriate
representation and protection of their rights. The guardian ad litem acts as a legal advocate to
safeguard the interests of the person they are representing in the specific legal matter.

What happens when a party to a suit is corporation/ business entity?

When a party sues a corporation in a civil suit, the corporation is treated as a legal entity with
the capacity to sue and be sued in its corporate name. This principle is established in the
landmark case of Solomon v Solomon. However, there are exceptions to this general rule.

If the corporation fails to adhere to its corporate obligations and acts in a manner that
disregards the separation between corporate and personal assets, individuals behind the
corporation can be held personally liable. This is known as piercing the corporate veil. In
such cases, the directors, officers, or shareholders of the corporation may be named
individually as defendants if they are found to have personally engaged in wrongful conduct.
The decision to sue a corporation depends on the circumstances. If the corporation has
breached a contractual agreement, failed to make required payments, or committed other
wrongful acts, it can be sued as a legal entity. However, if there are allegations of individual
misconduct by directors or shareholders, an application can be made to the court to lift the
corporate veil and determine the individuals responsible.
In the case of an unincorporated association, such as a partnership, it does not have a separate
legal existence from its partners. Therefore, when suing or being sued, the partnership can be
identified by the names of its individual partners. However, if the members claim to be
partners and were conducting business in Kenya when the cause of action arose, they may sue
or be sued in the firm name.
In summary, when suing a corporation, it is done in the corporate name, whereas when suing
a partnership or unincorporated business entity, the names of the partners or members are
often listed along with the business entity's name.

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What happens when a party to a suit is a governmental agency ?

When a party to a suit is a governmental agency, there are certain regulations and procedures
that come into play:
 Limits on suing governmental entities: There are limitations and regulations that govern
the circumstances under which a governmental agency can be sued. Even if there is a
statute permitting the government to be sued, specific requirements must be met.
 Notice requirement: Before filing a lawsuit against a governmental agency, the law
typically requires that notice be given to the agency beforehand. This notice serves to
inform the agency about the intent to sue and allows them an opportunity to address the
matter before litigation proceeds.
 Representation by the Attorney General: In civil matters involving the government, the
Attorney General (AG) often represents the governmental agency or department being
sued. The AG acts as the legal representative of the government and handles the legal
proceedings on their behalf.
 Service of papers to the AG: When initiating a lawsuit against a specific governmental
entity or department, the legal papers (such as the summons and complaint) are typically
served to the AG instead of the specific agency or department being sued. This is done to
ensure proper representation and communication with the government.
 Allegations in the plaint: In the body of the complaint (plaint), it is necessary to clearly
allege and outline the specific actions or wrongdoings that the governmental entity or
department has been accused of. This helps establish the basis of the lawsuit and provides
clarity on the claims being made.

What happens when the plaintiff uses a fictious name?

When a plaintiff uses a fictitious name in a lawsuit, the following considerations apply:
Identifying the plaintiff: The lawsuit should identify the plaintiff by their proper legal name,
even if they are doing business under a fictitious name. The plaintiff can indicate that they are
conducting business under another name, but their true legal name should still be provided.
Example: MATAYO ZAKAYO, T/A ZAKAYO MLACHAKE (Plaintiff)

In summary, when a plaintiff uses a fictitious name, the lawsuit should still identify the
plaintiff by their proper legal name.

What happens when the defendant uses a fictious name ?

If the defendant is doing business under a fictitious name, the lawsuit may initially identify
them by that fictitious name. Due diligence may have been undertaken to determine the
defendant's true name, but accurate information may be unavailable at the time of preparing
the complaint. The reason why we are going to court with a fictious name is to ensure that
time has lapsed and you still want to sue this person.

Amendment of the complaint: Once the true name of the defendant is determined, the
complaint can generally be amended to reflect the correct information. This can be done
under Order 1 Rule 9 of the relevant procedural rules. It is important to demonstrate to the
court that reasonable efforts were made to determine the defendant's true name and that the
amendment is necessary to ensure accuracy.

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In summary, if the defendant is operating under a fictitious name, they may be initially
identified as such, and the complaint can later be amended to reflect their true name when it
is determined.

What is the term fictitious defendants?

The term "fictitious defendants" refers to defendants whose actual identity is unknown at the
time the lawsuit is filed. They are named in the complaint as a placeholder to cover situations
where a new defendant is discovered after the statute of limitations has expired. This allows
the plaintiff to argue that the lawsuit was filed within the legal time limit, even if the
defendant's identity was initially incorrect or unknown.
When a new defendant is discovered, the plaintiff's advocate can seek to amend the complaint
to substitute the fictitious defendant's name with the correct one. This amendment aims to
reflect the accurate identity of the newly discovered defendant.
By naming fictitious defendants, the plaintiff ensures that any potential claims against those
individuals are not time-barred. It allows for flexibility in the litigation process, as the
plaintiff can later amend the complaint to reflect the correct names of the defendants once
their identities become known.
Overall, fictitious defendants provide a mechanism to initiate legal proceedings within the
prescribed time limit while accommodating situations where the exact identities of all
defendants are not initially known.

What happens if a defendant has been found after the limitations of time has lapsed ?

Under the Civil Procedure Rules 2010, as amended in 2020, plaintiffs are allowed to name a
newly discovered defendant even after the statute of limitations has expired. However, certain
conditions must be met:
 Notice: The new party must have received notice that the lawsuit has been filed within
the time allowed for service. This can be done through a demand letter in the case of
individuals or corporations, or a notice of intention to sue in the case of a government
agency.
 Lack of Prejudice: The new party should not be unduly prejudiced by the addition. They
should have known that they were inadvertently left out and would have been named as a
party in the original suit.
Once these conditions are met, the date of filing against the new party is considered to "relate
back" to the original filing date. This means that the claims against the newly discovered
defendant are deemed to have been filed within the statutory time limit.
Amending the claims to include the newly discovered defendant is permitted under the Civil
Procedure Rules. However, it is important to provide notice to the defendant and ensure that
they are not unfairly surprised by the addition. Demand letters or other forms of
communication serve this purpose.
Overall, the rules allow for the inclusion of newly discovered defendants even after the
statute of limitations has expired, provided that notice has been given and no undue prejudice
is caused.

How does the court join multiple parties to a suit?

When it comes to joining multiple parties in a lawsuit, there are two types of joinder:
permissive joinder and compulsory joinder.

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Permissive joinder allows parties to be joined together in a lawsuit, but it is not mandatory.
In permissive joinder, the parties can be plaintiffs or defendants, and they are joined together
if there is a common question of law or fact and the claims arise from the same occurrence or
series of occurrences.
- For example, in a scenario where a mother and her daughter are injured in a car accident,
they can choose to join their cases together in one pleading. The rules regarding
permissive joinder are usually liberal, allowing for flexibility in joining parties.

On the other hand, compulsory joinder requires parties to be joined together because the
claim cannot be resolved without their presence. If the court cannot make a determination
without the involvement of a particular party, then joinder of that party is necessary.
Compulsory joinder occurs when there is a clear connection between the parties and their
claims, and it is essential for a complete resolution of the matter. Compulsory joinders occur
in circumstances where you find that the question that will help you know whether this is a
compulsory joinder or a permissive joinder is “can the court make a determination without
this party, without affecting the claim. Generally, if the court cannot resolve the matter
without the presence of a party, then joinder of the party is required. (O1 r10(2)).
- For example, in a scenario where title to a piece of real property is in question and four
different individuals are claiming ownership, it would be necessary to join all four parties
as defendants in a lawsuit to determine ownership, which is commonly known as a quiet
title action. The court cannot effectively determine the true owner of the property unless
all parties with conflicting claims are present in the lawsuit. In this case, the four
individuals claiming ownership would be considered indispensable parties because their
presence is crucial to reaching a conclusive decision on the ownership of the property.
Each claimant must be named as a defendant in the lawsuit so that their competing claims
can be adjudicated and resolved by the court. By joining all four claimants as defendants,
the court can evaluate the evidence and arguments presented by each party, consider the
relevant legal principles, and ultimately make a determination regarding the true owner of
the property. The objective of joining all indispensable parties is to ensure a fair and
complete resolution of the dispute, providing clarity and certainty to the ownership of the
real property in question.

What are representative suits?

 A representative suit refers to a situation where one or more parties who share a claim
with a large number of others file a lawsuit in their own name and also claim to represent
numerous others in a similar situation. This type of suit is employed when the number of
potential plaintiffs becomes impractical or unmanageable.
 In a representative suit, the initiating party or parties act as representatives for the larger
group of individuals who have similar claims. They file the lawsuit on behalf of
themselves and others who are in a comparable position, seeking to protect the collective
interests of all parties involved.
 The representative suit allows for efficient and streamlined litigation when there are
numerous potential plaintiffs with shared claims. Instead of each individual filing a
separate lawsuit, the representative(s) can bring the claims on behalf of the entire group.
This approach avoids the burden of having a large number of plaintiffs and multiple
duplicative actions, which could be impracticable and inefficient for both the court and
the parties involved.
 It is important to note that in a representative suit, the representative party must have a
legitimate claim and be able to demonstrate that they adequately represent the interests of
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 the others they seek to represent. The court will assess whether the representative suit is
appropriate and may require the representative to meet certain criteria, such as
demonstrating a commonality of issues among the represented parties.
 However, it should be understood that a representative suit may not be feasible or
appropriate in cases where the number of potential plaintiffs is excessively large, to the
point where managing individual claims becomes impractical. In such instances, the court
or opposing party may challenge the representative suit on the grounds that it is not
suitable for the circumstances, potentially leading to the dismissal or modification of the
representative suit.

What is the procedure for a representative suit?

In order to proceed with a representative suit, the party filing the lawsuit must obtain
permission from the court to bring the action on behalf of others in a similar situation. The
procedure for a representative suit typically involves the following steps:
 Filing an application: The party seeking to initiate the representative suit will file an
application with the court, usually by way of a notice of motion. This application seeks
permission to bring a representative suit against a specific defendant.
 Court's permission: The court will review the application and consider whether the
requirements for a representative suit are met. If the court grants permission, it will issue
an order allowing the representative suit to proceed. The court may also direct that notice
of the action be given to all members of the class being represented.
 Notice to class members: As directed by the court, notice of the representative suit will
be given to all potential members of the class who can be identified. This notice will
inform them of the lawsuit and their status as potential members of the class. The notice
may also explain that any potential class member has the option to request exclusion from
the class.
 Authority from represented parties: The parties being represented in the representative
suit must provide written authorization to the representative. This authorization, signed by
the party giving authority, confirms their consent to be represented in the lawsuit. The
filed authorization document becomes part of the case record.
 Individual exclusion request: Potential class members who do not wish to be included
in the representative suit have the opportunity to request exclusion. They can do so by
submitting a written request stating their desire to be excluded from the class. If a
member does not request exclusion, they will be bound by any judgment or outcome of
the case.

The procedure for a representative suit aims to ensure that all potential class members are
aware of the lawsuit and have the opportunity to participate or opt-out if they wish. The
court's permission and proper notice to the class members are crucial steps in establishing the
representative suit and ensuring that the interests of all parties involved are protected.

What laws provide for representative suits?

 Article 22 (1)) of The Constitution guarantees the right to institute court proceedings
claiming that a right or fundamental freedom in the Bill of Rights has been denied,
violated or infringed, or is threatened.
 Further, it guarantees the right to institute those proceedings on behalf of a group or class
of persons Article 22 (2)(b) of The Constitution and in the interest of the public. Article
22 (2)(c) of The Constitution

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What are test suits?

 Test suits refer to a legal procedure where multiple lawsuits with a common issue or
question are consolidated to determine liability. In a test suit, different parties bring
separate suits, but instead of proceeding individually and reaching potentially conflicting
decisions, one of the suits is chosen as a test case to establish liability.
 The purpose of test suits is to streamline the legal process and avoid inconsistent
outcomes. For example, in cases involving accident victims with different claims, the
common issue may be determining liability for the accident. While the specific
grievances and damages sought may differ among the individual suits, the court's finding
on liability in the test suit becomes binding and is applied to the other suits.
 It's important to note that test suits focus primarily on liability rather than damages. The
damages sought in each individual suit may vary significantly based on the unique
circumstances and extent of injuries involved.
 By consolidating the suits and using one as a test case, the court can efficiently resolve
the common issue of liability and ensure consistent decisions across related cases. This
procedure helps save time and resources while promoting fairness and uniformity in the
legal system.

What is the difference between a representative suit and test suit?

The difference between representative suits and test suits is that in representative suits parties
are seeking the same damages and they have incurred the same loss. So one of them can
represent them. But in a test suit the one who is likely to succeed in a suit is supposed to have
their suitor determined such that once the judgement has been delivered in the matter, what
will be used in the rest of the matters is the particular judgement, but the quantum of damages
awarded will be very different. In as much as the suit has a higher likelihood of succeeding.
Just because the one person was awarded a specific amount doesn't mean the rest will receive
the same amount. It is just a test to see whether the defendant is liable or not. If they are
found liable the court will then establish different damages based on the loss incurred by each
and every other plaintiff and the injuries, they have faced. Yes, they will all have the same
judgement, but the number of damages will depend on the injuries that each party had.

In representative suits parties have the same cause of action and damage that they are
seeking are the same. In the test suit what you would Add all of the people are comfortable
with that. So you have to choose somebody who has your best interest, because how they will
attend court proceedings and attend the matter in your behalf will have an impact on all of
you in the same manner.

In test suits parties have the same cause of action, but the damage is that they are seeking are
completely different. It is one suit being used as an example to determine liability. If liability
arises then the damages that you'll be awarded as the claimant will vary depending on the
injury or loss that each person has particularly incurred.

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What is the general rule for filing a lawsuit in terms of the court?

As a general rule, the lawsuit is filed in the court of the lowest grade, typically the
Magistrates Court.

What happens if a case involves an important point of law?

In such cases, the lawsuit may be instituted in a court other than the lowest grade court.

Where should suits involving immovable property be filed?

Suits involving immovable property must be instituted in the courts within the local limits
where the property is situated.

Can a lawsuit be filed in a court where the property to be executed against is located,
even if it is in a different jurisdiction?

Yes, if the property to be executed against is in the jurisdiction of another court, the plaintiff
can request to move the case to that court to avoid being short-changed.

Where should a lawsuit be filed in cases of personal injuries, breach of contracts, or

statutory obligations?

The lawsuit should be filed where the cause of action arose, or where the defendant resides or
works for gain.

Where should a claim be filed in contract disputes?

The claim should be filed where the contract was executed or where the parties entered into
the contract.

What should be done if there are multiple defendants in a case and they reside in
different jurisdictions?

The suit may be filed in a court where one of the defendants resides or works for gain,
according to Section 15 of the Civil Procedure Act.

What should the plaintiff's plaint contain in terms of facts?

The plaint must contain sufficient facts to put the defendant on notice as to why they are
being sued. It should provide a clear basis for the legal suit.

The plaint does not need to expressly state the legal basis for the lawsuit, but it should contain
sufficient facts to inform the defendant about the reasons for the suit.

What are equitable reliefs?

Equitable reliefs are remedies granted by a court of equity, also known as a court of chancery,
to provide fairness and justice in situations where legal remedies may be insufficient. These
remedies are based on principles of fairness, conscience, and the equitable jurisdiction of the

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court. Equitable reliefs aim to prevent unjust enrichment, correct wrongs, and enforce rights
that may not be adequately addressed by legal remedies alone.

Explain some equitable reliefs.

Equitable reliefs refer to the remedies available in equity, which is a branch of law that
focuses on fairness and justice. Some examples of equitable reliefs are:
 Injunctions: Injunctions are court orders that restrain or prohibit certain actions. They
can be used to prevent harm or maintain the status quo. For example, a restraining order
can be sought to prevent someone from harassing or threatening another person.
 Specific Performance: Specific performance is a remedy that requires a party to fulfill
their contractual obligations as agreed. It is commonly used in cases involving the transfer
of real property, where the court orders the party to convey the property to the intended
buyer. An aggrieved party may file a suit for specific performance, for a decree by the
court directing the defendant to actually perform his/her obligation. A decree for specific
performance is granted only where it is just and equitable so to do, i.e where the legal
remedy of money is inadequate or defective remedy. As a rule of law, specific
performance is not granted where monetary compensation is an adequate relief, where the
court cannot supervise the actual execution of the contract, or where one of the parties to
the agreement does not possess competency to contract.
 Rescission: Rescission is the cancellation or annulment of a contract. It is typically
granted when there are material breaches or fundamental defects in the contract.
Rescission allows the parties to be restored to their pre-contract positions. If the aggrieved
party intends to sue the guilty party for damages for breach of contract, he/she has to file
a suit for rescission of the contract first. You can only succeed and to be compensated
once you've rescinded. When the court grants rescission, the aggrieved party is freed
from all his/her obligations under the contract and becomes entitled to compensation for
any damage occasioned to him or her.
 Rectification: Rectification is a remedy used to correct errors or mistakes in a written
document or contract. It allows the court to modify the document to reflect the true
intentions of the parties involved.
 Tracing: Tracing is a remedy that enables the tracking and recovery of misappropriated
assets or property. It is often used in cases involving fraud or breach of trust. Tracing
helps identify the proceeds or substitute assets that were obtained through unlawful
means.

These are just a few examples of the equitable reliefs available in legal proceedings. The
specific remedy sought depends on the nature of the dispute and the circumstances of the
case.

What are damages?

Damages refer to the monetary compensation awarded by a court to a party who has suffered
harm, loss, or injury as a result of another party's wrongful act or breach of duty. It is a legal
remedy designed to provide financial compensation to the injured party and restore them, to
the extent possible, to the position they would have been in had the wrongful act or breach
not occurred.

Explain the types of damages.

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There are several types of damages that can be awarded in legal cases. Here are some
explanations of different types of damages:
 General Damages: These damages are not quantifiable and do not have a set monetary
value. They are awarded for non-economic losses such as pain and suffering, emotional
distress, or loss of enjoyment of life. The amount of general damages is typically
determined by the court based on factors such as the severity of the injury, the impact on
the plaintiff's life, and precedents set in similar cases.
 Special Damages: Special damages are quantifiable and specific monetary losses
incurred by the plaintiff as a direct result of the defendant's actions. They include
expenses such as medical bills, property damage, loss of earnings, and other out-of-
pocket costs. Special damages must be proven with supporting evidence, such as receipts,
invoices, or expert testimony.
 Exemplary Damages (Punitive Damages): Exemplary damages, also known as punitive
damages, are awarded in addition to compensatory damages. They are intended to punish
the defendant for particularly egregious or intentional wrongdoing and to deter similar
conduct in the future. Exemplary damages are not awarded in all cases and are typically
reserved for situations involving willful misconduct, fraud, or gross negligence.
 Aggravated Damages: Aggravated damages are awarded to compensate the plaintiff for
the harm caused by the defendant's wrongful actions, which may include humiliation,
insult, or mental distress. These damages are typically awarded when the defendant's
conduct was particularly insensitive or oppressive.
 Nominal Damages: Nominal damages are symbolic in nature and are awarded when the
plaintiff's rights have been violated but no actual financial loss or significant harm has
occurred. They are often awarded in cases where a legal right has been infringed upon but
the damages suffered are minimal or difficult to quantify.

It's important to note that the availability and specific criteria for each type of damages may
vary depending on the jurisdiction and the nature of the case. The court assesses the evidence
and circumstances to determine the appropriate type and amount of damages to award.

Explain provisional remedies

Provisional remedies are immediate measures or orders that can be requested by a plaintiff in
a lawsuit, typically when injunctive relief is the main objective. Here's an explanation of
provisional remedies:
Temporary Restraining Order (TRO):
 A TRO is a provisional remedy sought by the plaintiff as soon as the lawsuit is filed.
 It is used to compel the defendant to immediately stop certain conduct or actions that are
causing harm or interfering with the plaintiff's rights.
 For example, if the defendant is selling similar products in violation of an agreement, the
plaintiff can request a TRO to temporarily prevent the defendant from continuing those
sales until the matter is resolved in court.
 The TRO remains in effect for a short period, typically until a hearing can be scheduled in
court.
Preliminary Injunction:
 If the court decides to maintain the restraining order beyond the initial TRO phase, it may
issue a preliminary injunction.
 A preliminary injunction is an order that remains in effect until the trial of the case.

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 The court holds a hearing where both parties present arguments either supporting or
opposing the continuation of the injunction.
 To grant a preliminary injunction, the court considers factors such as the likelihood of
success on the merits and the potential for irreparable harm.
 If the plaintiff proves their case at trial, the preliminary injunction can become permanent.
Interlocutory Application:
 When seeking provisional remedies, the plaintiff files an interlocutory application, which
is a formal request to the court.
 This application asks the court to temporarily restrain the defendant from certain actions
until the case is determined.
Rulings and Discharge of Orders:
 Throughout the proceedings, the court may issue rulings on provisional remedies based
on the arguments presented by both sides.
 If it is determined that the original order was incorrect or inappropriate, the court may
discharge or modify the order accordingly.
 The final determination of a permanent injunction depends on the plaintiff's ability to
prove their case during the trial.

What are injunctions?

 An injunction is an order issued by a court that prohibits or compels a person from taking
a particular action.
 They are a type of equitable remedy sought in civil litigation cases to prevent harm,
preserve rights, or maintain the status quo pending a final resolution of the dispute.
 It is a remedy commonly used in cases involving breach of contract or tort liabilities
where monetary damages would not be sufficient.

What are the types of Injunctions?

o Temporary Injunction: A temporary injunction is a provisional order issued

by the court until the final determination of the case. It is designed to maintain
the status quo and protect the parties' rights until the dispute is resolved.
o Permanent Injunction: A permanent injunction is issued after the trial or
final hearing and remains in effect indefinitely. It sets out the long-term
prohibitions or obligations for the parties involved.

What are prohibitory and Mandatory Injunctions?

o Prohibitory Injunctions: These injunctions restrain the defendant from
engaging in certain actions. They prohibit the party from doing something that
they are about to do.
o Mandatory Injunctions: These injunctions require the respondent to perform
specific actions. They compel the party to do something, similar to a
mandamus.

What is the purpose of Injunctions?

 The purpose of injunctions is to preserve the property, legal rights, and liabilities of
parties until their conflicting claims are resolved.
Injunctions aim to prevent irreparable harm or injustice that cannot be adequately
compensated through monetary damages.

What are the conditions for obtaining an Injunction?

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 o Before applying for an injunction, certain conditions must be satisfied:
Giella v. Cassman Brown.
i. Prima Facie Case: The party seeking the injunction must demonstrate a strong
likelihood of success in their case.
• ii. Irreparable Injury: The applicant must show that they will suffer substantial loss if the
application is not allowed or the injunction is not granted. irremediable harm suffered by
an applicant. There must be evidence of harm that cannot be adequately compensated by
monetary damages.
iii. Balance of Convenience: The court considers the overall convenience and fairness of
granting the injunction in favor of the applicant. It will be in the interest of justice to give
the applicant an injunction as opposed to their respondent.

What is the first step that you undertake where the defendant is deceased or where the
plaintiff is deceased?

When the defendant is deceased or when the plaintiff is deceased, the first steps to undertake
are as follows:
Defendant is Deceased:
 Apply to the court for a grant of letters of administration ad litem.
 If the grant is approved, proceed with the case, ensuring that the deceased defendant is
not completely removed but is put in the appropriate status.
 Bring in the appointed administrator as the representative of the deceased defendant.
Plaintiff is Deceased:
 In an ongoing case, initiate the process of substitution. Remove the deceased plaintiff
from the case while maintaining their presence in the proceedings, indicating their status.
 Introduce the appropriate party, such as the legal representative or estate executor, to
continue representing the interests of the deceased plaintiff

What is a citation?

Use citation to notify individuals who have the capacity to take out letters of administration,
reminding them of their obligations. If they fail to do so, you may proceed to take letters of
administration for the purpose of recovering debts or executing the case.

What is a caveat?

Lodge a caveat with the court to ensure you are notified when letters of administration are
filed. This allows you to raise objections and ensure your inclusion in the process,
particularly if you are a creditor with priority rights.

Explain service of pleadings

Service of pleadings refers to the act of formally delivering or providing the legal documents,
such as pleadings or court papers, to the parties involved in a case. The following information
explains the process of service according to the provided details:
Electronic Service:
 According to the amended Civil Procedure rules of practice, service of
pleadings/documents can be done electronically.

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 Electronic service is considered valid and sufficient for serving the documents to the
parties.
Method of Electronic Service:
 The service of pleadings/documents through electronic means requires exhibiting a
printout from the electronic device used to send the document.
 The printout should clearly show the date and time when the document was sent to the
party.
Advantages of Electronic Service:
 Electronic service eliminates the possibility of parties denying receipt of the documents.
 With physical service, there may be situations where a party claims not to have seen the
person attempting to serve the documents.
 Electronic service resolves this issue, as the sender can provide an affidavit or evidence of
the date and time the document was sent.
Commencement of Time:
 When electronic service is employed, the time for response or action by the receiving
party begins to run from the date the process was sent.
 In other words, once the document is sent electronically via email or any other electronic
means, it is considered as service, and the relevant timeframes start from that point.

By utilizing electronic service, parties can ensure efficient and traceable delivery of
pleadings/documents, eliminating disputes regarding receipt and providing a clear starting
point for time calculations in legal proceedings.

What is a witness statement and what is its use?

In civil cases, a witness statement plays a crucial role in presenting the evidence and
supporting the claims of a party. The following information explains the key aspects of a
witness statement based on the provided details:

Purpose of Witness Statements:

 Witness statements should contain sufficient details so that the witness can adopt it as
their evidence-in-chief during the proceedings.
 It allows parties to apply for highlighting and production of relevant documents before
the witness is cross-examined.

Preparing Witness Statements:

 Witness statements should be comprehensive and include all necessary information
relevant to the case.
 They should be structured in a way that the witness can present their evidence-in-chief
based on the statement.
 This enables the parties to address any weaknesses or inconsistencies during cross-
examination.

Production of Documents:
 If there are documents that need to be produced and relied upon as evidence, they should
be included in a bundle of documents.
 The bundle should be arranged chronologically and paginated in a sequential order.

Reference to Documents:

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 Witness statements should make sequential references to the relevant documents by citing
their page numbers.
 This helps the court and other parties to easily follow and understand the case by referring
to specific documents.

Explain the filing/ commencement/ insitution of suits.

Filing/Commencement/Institution of Suits refers to the process of submitting the necessary

documents and fees to initiate a legal action. The following information explains the key
aspects of filing suits based on the provided details:
Presentation of Pleadings and Documents:
 The plaintiff must submit the required pleadings and accompanying documents to the
appropriate court registry to commence the suit.
 Sufficient copies of the filing documents should be provided, including copies for each
defendant and a copy for the court.
Date of Receipt vs. Date of Filing:
 The date of receipt, when the court registry receives the documents, is different from the
date of filing.
 Assessment of fees and payment are typically conducted in the court registry after the
documents are received.
Assessment and Payment of Fees:
 Filing fees are assessed based on the nature of the suit and the applicable court fees
schedule.
 The requisite fees must be paid at the court registry to complete the filing process.
 Failure to pay the assessed fees means the documents have not been filed within the
required time frame.
Automated Fee Assessment System:
 Courts may have an automated fee assessment system to facilitate electronic payment of
various court fees.
Correct Assessment and Recalling of Party:
 If there is an incorrect assessment of fees, the party may be recalled by the court to rectify
the issue, causing delays and wasted time.
Case Filing and Payment:
 A case is considered filed only when the requisite fees have been paid.
 The filing date is determined by the date the documents were paid for, not the date of
receipt.
Deposit System for Filing Fees:
 Some law firms maintain a deposit in the court for filing fees, allowing them to deduct the
fees from the standing deposit.
 In such cases, the filing date is the same as the date of receipt of the relevant pleadings or
documents, as the fees are deducted from the deposited funds.

Explain the issue of summons.

The Issue of Summons under Order 5 Rule 1 involves the issuance of a summons to the
defendant, notifying them to appear and respond to the lawsuit. Here is an explanation based
on the provided information:
Summoning the Defendant:
 Upon filing the suit, the plaintiff prepares the summons, which is a legal document.

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 The summons, along with a copy of the plaint (the plaintiff's statement of claim), is filed
with the court.
Signing and Sealing of Summons:
 The summons must be signed and sealed with the court's official seal.
 A judge or an authorized court officer completes this process within 30 days from the
date of filing.
Consideration of Defendant's Place of Residence:
 The defendant's place of residence is taken into account to ensure they have reasonable
notice of the summons.
 The period between the issuance of the summons and the date for appearance should not
be less than 10 days.
Collection and Service of Summons:
 The summons must be collected for service within 30 days from the date of issue or the
notice of issue.
 If the summons is not collected within this timeframe, the court may provide a notice to
the plaintiff to collect it.
 It is important to comply with the 30-day deadline, as failure to do so may result in the
suit abating (being dismissed).
Personal Service on the Defendant:
 The summons must be served upon the defendant personally.
 This means that the summons should be physically delivered to the defendant to ensure
they are properly notified of the legal proceedings.

The Issue of Summons is a crucial step in initiating a lawsuit, as it officially notifies the
defendant of the legal action against them and provides them with an opportunity to respond.
Adhering to the prescribed timelines and requirements ensures proper service and compliance
with procedural rules.

What are the exceptions on personal service and who can be served
Exceptions to Personal Service and Who Can Be Served:
Service on Agents:
 Personal service may be difficult in some instances, but service can be made on the
defendant's agent.
 If the defendant has an appointed agent, the summons can be served on that person
instead of the defendant.
Service on an Adult Member of the Family:
 If personal service on the defendant is not possible, the summons can be served on an
adult member of the defendant's family.
 This allows for the delivery of the summons to someone closely related to the defendant
who can pass on the information.
Service on the Defendant's Advocate:
 If the defendant has legal representation, the summons can be served on their advocate.
 The defendant's advocate acts as their legal representative and can accept service of the
summons on their behalf.
Service at the Last Known Address:
 If the current address of the defendant is unknown, the summons can be served at their
last known address.
 This ensures that the defendant receives notice of the legal proceedings, even if they have
relocated.

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Service by Affixing to the Defendant's Residence:
 In some cases, if personal service is not possible, the summons can be affixed to the
defendant's residence.
 This involves securely attaching the summons to a visible location at the defendant's
residence to ensure they become aware of the legal proceedings.
Substituted Service by Notice in Newspapers:
 Substituted service can be pursued with the court's permission, where the summons is
served through a notice published in newspapers.
 The notice should be placed in a newspaper with the largest circulation in the country and
printed in a language that the defendant can understand.
 This method aims to provide public notice to the defendant, ensuring they have an
opportunity to respond to the legal action.
These exceptions to personal service provide alternative means of delivering the summons
when direct personal service is not feasible. It is important to follow the prescribed
procedures and seek the court's permission, when necessary, to ensure proper service and
compliance with legal requirements.

Explain what summons is and its validity.

Summons is a court document that requires a person to respond to pleadings filed against
them in court. The service of summons is governed by Order 5 of the Civil Procedure Rules.

The validity of summons is initially for 12 months from the date of issue. However, a
concurrent summons can be issued during the lifespan of the original summons, extending its
validity to 24 months. A concurrent summons is obtained when there is a concern that the
original summons may expire before the defendant is served. It allows for an additional 12
months to serve the defendant without resorting to substituted service.

The application for renewal of summons is made ex parte, meaning without the presence of
the defendant. The renewed summons must be stamped by the court. The service of the
summons can be done by the court itself upon payment of a prescribed fee or by an
authorized process server. These authorized process servers are appointed by the judiciary
and have specific geographical jurisdictions for service.

If the summons has not been served on the defendant, the court has the discretion to extend
the validity of the summons from time to time if it deems it just to do so. An application for
extension of the validity of summons should be accompanied by an affidavit of service,
which indicates the number of attempts made at service and their results.

It is important to note that an order for extension of validity may be made without the
presence of an advocate or the plaintiff being heard. This allows for the court to consider the
circumstances and make a decision based on the information provided in the affidavit of
service.

Overall, the validity of summons can be extended to ensure that sufficient time is given to
serve the defendant and proceed with the legal proceedings.

What happens if a summons has not been served on the defendant within the initial
validity period?

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The court has the discretion to extend the validity of such summons if it deems it just to do
so.

An application for an extension of validity of summons should be made by filing an affidavit

of service. The affidavit should indicate the number of attempts made at service and their
results.

What happens if no application is made for an extension of validity of summons?

If no application is made for an extension of validity of summons, the court may, without
notice, dismiss the suit upon the expiry of 24 months from the date of issue of the original
summons.

Explain E filing and the procedure for it

 E-filing refers to the process of electronically submitting documents to the court for filing
purposes.
 Advocates and litigants appearing in person are required to register for e-litigation, in
accordance with the guidelines set by the Chief Justice under gazette notice 2357/2020.
The documents to be filed should be in PDF format.
 The filing process is considered complete when the electronic filing system generates a
notice of electronic filing, which includes the date and time of filing. This notice is sent to
the person who filed the document and contains a hyperlink to access the electronically
filed document. It's important to note that emailing a document to the registry or the court
does not constitute filing.
 In the event of a system failure preventing successful electronic filing, the court will
consider the first unsuccessful attempt to file the document electronically as the official
filing date and time. The reason for the delay caused by the system failure will be relayed.
If the court determines that the unavailability of the electronic filing system prevented the
court from receiving the filed documents, the filing will be deemed to have occurred on
the day the user initially attempted to file it. In such cases, the court may direct the person
to either file the document in person or wait until the electronic filing system is
operational again.
 Before presenting or submitting a document for e-filing, certain contents need to be
confirmed. These include the filer's name, the name of the law firm or entity on whose
behalf they are signing, postal address, telephone number, and email address.
Additionally, a list of parties who were served electronically and a separate list of parties
who will be served through other means should be provided. Service of documents is
considered complete when a notice of electronic filing is posted into the filer's account,
eliminating the need for filing an affidavit of return or return of service in court.
 Overall, e-filing requires the conversion of documents to PDF format and adherence to
the specified information requirements before submission.

What the principles of a good filing system

The principles of a good filing system are designed to ensure efficiency, organization, and
easy retrieval of information. Here are the key principles:

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  Cost-effective: The filing system should be economical, taking into account factors
like storage space, equipment, and maintenance costs. It should strike a balance
between functionality and expenses.
 Compactness: The system should utilize space efficiently, minimizing the amount of
physical storage required while accommodating the necessary files and documents.
 Simplicity: The filing system should be straightforward and easy to understand for all
users. Complicated systems can lead to confusion and mistakes.
 Accessibility: Information should be readily accessible to authorized personnel when
needed. This requires proper indexing and labeling of files, as well as a clear
organizational structure.
 Flexibility: A good filing system should be adaptable to changing needs and
expanding volumes of information. It should be able to accommodate new categories
and files without major disruptions.
 Accuracy: The filing system should be accurate and reliable, ensuring that files are
correctly labeled and placed in their designated locations. This prevents misfiling and
loss of important information.
 Suitability: The system should be designed to meet the specific needs and
requirements of the organization or individual using it. It should be tailored to the
type of information being stored and the purpose of retrieval.
 Safety and security: The filing system should prioritize the protection of sensitive and
confidential information. Proper security measures, both physical and digital, should
be in place to prevent unauthorized access.
 Cross-reference: Cross-referencing allows related information to be linked together,
making it easier to find interconnected files and documents. This enhances the overall
efficiency of the filing system

What personal information can victims and protected persons omit from their signature
block?

Victims and protected persons can omit their mailing addresses, telephone numbers, and
email addresses from their signature block if necessary for their protection.

Who is responsible for updating their personal information in a suit?

Every party to a suit is responsible for promptly updating their personal information as stated
earlier.

What protection measures are provided by the Data Protection Act for vulnerable
individuals?

The Data Protection Act aims to protect individuals who feel vulnerable or targeted. These
individuals have the option to omit personal information, such as addresses and contact
details, from public circulation. However, within the court system, their information will still
be present but may not be included in public records.

How are child cases handled in terms of personal information disclosure?

In child cases, initials are often used to represent the parents, such as "PA" or "AA," to
provide anonymity and protect their identities. This practice helps maintain the
confidentiality of individuals involved in sensitive cases.

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What happens if we are making service on a corporation?

You must serve the place of their registered business

When making service on a corporation, the service should be served on the secretary,
director, or principal officer of the corporation. These individuals represent the corporation as
separate legal entities, and they are responsible for accepting service on behalf of the
company.
If the process server is unable to locate any officers of the company for service, there are
alternative methods that can be used:

a) Leaving the documents at the registered office of the corporation.

b) Sending the documents by prepaid registered post or through a licensed courier service
provider approved by the court to the registered postal address of the corporation.
c) Leaving the documents at the place where the corporation conducts its business.
d) Sending the documents by registered post to the last known postal address of the
corporation.

These alternative methods ensure that service is still accomplished even if direct contact with
the officers of the corporation is not possible. It is important to follow these procedures to
ensure proper service is carried out.

Who can serve summons?

Once the summons have been issued by the court to the defendant the summons will be
served- by any person authorized by the court namely;
a. to an advocate,
b. advocate's clerk approved by court
c. To any subordinate court having jurisdiction in the place defendant resides
d. To an officer appointed by the Police Act or AP Act
e. To a licensed courier service provider approved by court

What is the mode of service?

The mode of service for a summons involves the following:

 Delivery of duplicate summons: The person serving the summons is required to deliver
or tender a duplicate copy of the summons to the recipient (defendant).
 Acknowledgement of receipt: The recipient (defendant) is expected to sign an
acknowledgement on the original copy of the summons, confirming that they have
received the summons.
 Individual service for multiple defendants: In cases where there are multiple
defendants involved, service must be made on each defendant separately. This means that
each defendant should receive their own copy of the summons.
 Personal service preferred: Whenever possible and practical, the preferred method of
service is to deliver the summons directly to the defendant in person. This ensures direct
communication between the server and the defendant.
 Authorized agent for service: If the defendant has an authorized agent, such as an
advocate with instructions to accept service and enter appearance on their behalf, service
can be made to the authorized agent.

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The proper mode of service is essential to ensure that the summons is effectively delivered to
the defendant and that the necessary legal procedures are followed.

Explain time of service

Time of service refers to the specific time and day when a summons or court process is
delivered to the recipient. Here's an explanation based on the provided information:
 Compliance with time and day: Service of summons and court processes must adhere to
the designated time and day specified by the court. This means that the delivery of the
documents should take place within the prescribed timeframe.
 Prohibition on Sundays and public holidays: Service on Sundays and public holidays
is not permitted. This restriction ensures that individuals are not burdened with legal
matters on days designated for rest and observance.
 Restrictive nature of the order: The question raised asks whether the restrictive nature
of the prohibition on Sundays and public holidays is desirable considering the realities in
Kenya. This implies questioning the practicality and relevance of this order in the context
of Kenya.
 Rationale for issuance of summonses and notices: The primary purpose of issuing
summonses and notices is to inform the other party about the pending legal proceedings
in court. By ensuring proper timing and delivery, it allows for sufficient notice and an
opportunity for the recipient to respond or participate in the legal process.

In considering the restrictive nature of the order, it is important to balance the need for
efficient legal proceedings with the practicalities and cultural practices of the specific
jurisdiction, such as Kenya. Ultimately, the aim is to strike a balance that facilitates effective
communication while respecting the rights and customs of individuals involved in legal
matters.

What is the mode of service for the government?

The mode of service on the government, as outlined in Rule 9, involves the following
methods:
 Leaving the document at the office of the Attorney General (AG) or his designated agent:
Service on the government is considered effective when the document is physically
delivered to the office of the AG or an authorized representative designated by the AG.
 Posting the document in a prepaid registered envelope addressed to the AG or designated
agent: Another acceptable method of service on the government is by sending the
document via mail in a prepaid registered envelope. The envelope should be properly
addressed to the AG or the designated agent.

It is important to note that, for the purposes of the rules, documents served on the government
in connection with civil proceedings do not require personal service. This means that it is not
necessary to personally serve the document on a specific individual within the government.
The service is deemed effective as long as the document is delivered to the office of the AG
or designated agent or sent by registered mail to the appropriate address.
These methods ensure that service on the government is properly carried out, providing a
means of communication and notification in civil proceedings without the requirement of
personal service.

What happens where defendant refuses service or cannot be found r.14?

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If the serving officer, after making all due and reasonable efforts, cannot find the defendant
or any person on whom service can be made, the following steps are taken according to Rule
14:

 Affixing the summons: The serving officer will affix a copy of the summons on the
outer door or another conspicuous part of the defendant's residence, place of business, or
where they personally work for gain. This serves as a way to provide notice of the
summons to the defendant, even if they cannot be personally served.

 Return of the original summons: After affixing the copy of the summons, the serving
officer will then return the original summons to the court from which it was issued. Along
with the return, an affidavit of service is provided, detailing the efforts made to serve the
defendant and the circumstances that led to the affixing of the copy of the summons.
It is important for the person serving the summons to make diligent efforts to locate the
defendant before resorting to alternative methods. They should exhaust all reasonable means
of finding the defendant. Only after these efforts have been made, and the defendant cannot
be located, can the serving officer resort to affixing a copy of the summons in a conspicuous
location.

It is worth noting that in some cases, the defendant may later contest the validity of the
service if they claim that the summons was not served or not properly served. This can lead to
legal proceedings where the defendant seeks to set aside an ex parte judgment based on
inadequate or improper service.

What is affidavit of service?

An Affidavit of Service, as described in Rule 15, serves as a legal document that provides
evidence of the proper service of a summons. Here is an explanation based on the provided
information:
 Swearing and annexing the affidavit of service: Once the serving officer has
successfully served the summons, they are required to swear an affidavit of service. This
affidavit is then attached to the original summons document.
 Contents of the affidavit: The affidavit of service should include specific details, such as
the time and manner in which the summons was served. It should also state the name and
address of the person who was served, as well as any relevant information regarding
witnessing the delivery of the summons.
 Importance of recording identification: It is crucial to record the name and address of
the person who identifies or confirms the identity of the person being served. Failure to
do so renders the affidavit of service incurably defective. In other words, if the affidavit
does not state how the defendant was identified, the service is considered irregular.
 Form and format of the affidavit: The affidavit of service should follow the prescribed
format provided in Form No. 4 of Appendix A. This ensures consistency and uniformity
in the documentation of service.
In summary, an Affidavit of Service is a sworn statement that confirms the proper service of
a summons. It includes essential details about when and how the summons was served, the
person served, and any witnesses present during the delivery. The affidavit must be
completed accurately and in the specified format to ensure its validity as evidence of service.

What is substituted service?

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Substituted service refers to an alternative method of serving a summons when traditional
methods of service are not possible or effective. Based on the provided information, here is
an explanation of substituted service:
 Unavailability of regular service: If the court determines that, for any reason, the
summons cannot be served according to the usual rules and procedures, it may order
substituted service.
 Affixing the summons: Substituted service involves affixing a copy of the summons in a
conspicuous place within the court-house. Additionally, a copy is affixed in a
conspicuous location at the last known residence, place of business, or workplace where
the defendant is known to have been present.
 Application for substituted service: In cases where traditional methods of service are
not feasible, one can apply to the court under Order 5, Rule 17(4) for substituted service
by advertisement. This involves following the prescribed Form 5 in Appendix A, which
provides instructions for serving the summons through advertisement.
 Cost-effective option: It is mentioned that substituted service through advertisement can
be a viable alternative to extending the summons. By utilizing this method, the full title of
the court case may not need to be included, which can help reduce expenses associated
with the service.

Overall, substituted service allows for serving a summons in a different manner when regular
service is not possible or deemed ineffective. It provides an alternative way to notify the
defendant about the legal proceedings, ensuring that they have an opportunity to respond or
participate, even in situations where traditional service methods cannot be utilized.

Explain the process of substituted service by advertisement

- This is by publishing in a newspaper of nationwide circulation.

Explain service outside Kenya?

Service out of Kenya, as governed by Order 5, Rule 21, refers to the process of serving court
documents outside the jurisdiction of Kenya. Here is an explanation of the requirements for
obtaining leave from the court for service out of Kenya:
1. Need for court's permission: Before proceeding with service outside Kenya,
permission from the court is required. This ensures that the legal requirements are met
and that the court has jurisdiction over the matter.
2. Grounds for granting leave: The court may grant leave for service out of Kenya in
the following situations:

 Subject-matter involving immovable property in Kenya: When the suit concerns

immoveable property situated in Kenya, indicating that the case should be heard in
Kenya.
 Interpretation, rectification, or enforcement of documents involving Kenyan
property: When any act, deed, will, or contract involving immovable property in Kenya
needs to be construed, rectified, set aside, or enforced in the suit.
 Relief sought against a person domiciled or ordinarily resident in Kenya: When the
lawsuit seeks relief against a person who is domiciled or ordinarily resides in Kenya.

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 Contractual matters connected to Kenya: When the suit is related to a contract made in
Kenya, made through an agent residing or trading in Kenya on behalf of a principal
residing outside Kenya, or governed by Kenyan laws specifying that Kenyan courts have
jurisdiction over the matter.
 Tort, injunction, or nuisance in Kenya: When the suit is founded on a tort committed in
Kenya, seeks an injunction within Kenya, or aims to prevent a nuisance in Kenya, with or
without damages being sought.
 Necessary party residing outside Kenya: When a person residing outside Kenya is a
necessary party to a suit brought against a party already served within Kenya.

In summary, service out of Kenya requires obtaining the court's permission, and such
permission is granted based on specific grounds. These grounds include the subject-matter of
the suit, involvement of Kenyan property or individuals, contractual matters connected to
Kenya, torts or injunctions in Kenya, and the presence of necessary parties residing outside
Kenya. This ensures that the court maintains jurisdiction over the case and that proper legal
procedures are followed when serving documents outside the jurisdiction of Kenya

Explain the process of application for leave to serve out of Kenya.

The process for making an application for leave to serve out of Kenya, as outlined in Rule 25,
involves the following steps:
 Filing the plaint: The plaintiff initiates the legal proceedings by filing a plaint, which
includes the details of the parties involved, their countries of origin, and the facts on
which the court's jurisdiction is sought. This provides the basis for establishing the court's
jurisdiction.
 Establishing the cause of action: The plaint should also explain when the party was in
Kenya and how the cause of action arose. This helps establish the court's jurisdiction
based on the location where the cause of action occurred or where the contract was
entered into.
 Submitting a Request for Service Abroad: The application for leave to serve out of
Kenya is typically made by submitting a Request for Service Abroad, which is a specific
form (Form No. 8 Appendix A). In this form, the applicant declares the intention to serve
the documents outside the jurisdiction of Kenya. The applicant also undertakes to bear all
expenses related to the service.
 Supporting affidavit or evidence: The application must be supported by an affidavit or
evidence stating that the deponent (the applicant) believes that the plaintiff has a valid
cause of action. This ensures that the application is not frivolous and lacks merit.
 Providing information about the defendant: The application should include details
about the place where the defendant is or is likely to be found. It may also consider
whether the person is a Commonwealth citizen or a British protected person.
 Grounds for the application: The grounds on which the application is made should be
clearly stated, explaining why it is necessary to serve the defendant outside the
jurisdiction of Kenya.
 Full and fair disclosure: It is important to make full and fair disclosure in the
application. Any failure to do so may jeopardize the validity of the order for service out
of jurisdiction.
 Granting of the application: If the court determines that the case is a proper one for
service out of Kenya, the application for leave to serve out of jurisdiction will be granted.

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 Issuing sealed summons: Following the grant of the application, the High Court will
issue sealed summons through the Registrar. These sealed summons will be used for
serving the defendant outside the jurisdiction of Kenya.

How is service out of Kenya done?

Service out of Kenya is the process of serving legal documents outside the jurisdiction of
Kenya. Based on the provided information, here is an explanation of how service out of
Kenya is done:
 Commonwealth citizen: If the person to be served is a Commonwealth citizen, a Letter
Forwarding Request for Service Abroad (Form No. 7 Appendix A) from the Chief Justice
is prepared. This letter is addressed to the Cabinet Secretary in charge of Foreign Affairs,
requesting transmission of the summons to the defendant in that country. The request also
asks for evidence of service to be certified or declared upon oath, as would be done in
Commonwealth jurisdictions, to prove service of the legal process.
 Non-Commonwealth citizen: If the person to be served is not a Commonwealth citizen,
a notice of summons is served upon them using Form No. 6 Appendix A (r.28). A Letter
Forwarding Request for Service Abroad (Form No. 7 Appendix A) accompanies the
notice of summons and is addressed to the Cabinet Secretary in charge of Foreign Affairs.
This request seeks transmission of the notice of summons to the defendant in the
respective country and also asks for evidence of service to be certified or declared upon
oath in a manner consistent with the usage or practice of the courts where the defendant is
served.
 Sealing and forwarding of the notice: The notice of summons is sealed with the seal of
the High Court of Kenya. The Registrar sends the sealed notice, along with a translated
copy in the language of the country where service is to be effected, to the Cabinet
Secretary in charge of Foreign Affairs. The Cabinet Secretary then transmits the notice
through the diplomatic channel to the government of the country where leave to serve the
notice of summons has been granted.
 Personal service: The aim of serving out of Kenya is to serve the person in person. The
applicant seeks leave from the court and undertakes to pay all the expenses related to the
service. Information about the person's location is provided. Once the court is satisfied,
the summons are forwarded to the Cabinet Secretary in charge of Foreign Affairs, who
arranges for the service to be carried out on the person directly. After the service is
completed, a return of service is obtained as evidence.
 Substituted service: If it is not possible to serve the person personally, alternative
methods of service may be considered, such as substituted service, where the court
permits other means of serving the documents.
In summary, service out of Kenya involves the preparation of appropriate requests and
notices, their sealing, forwarding to the Cabinet Secretary in charge of Foreign Affairs, and
subsequent transmission to the respective country for service. The objective is to ensure that
the legal documents are personally served on the intended recipient, but if this is not feasible,
alternative methods may be employed.

How is substituted service abroad done?

Substituted Service Abroad, as per the information provided, refers to an alternative method
of serving notice when traditional methods of service are unsuccessful. Here is an explanation
of the process for Substituted Service Abroad (Rule 29):

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 Seek leave for substituted service: The applicant must make an application to the court,
seeking permission to serve the notice through substituted service. This application is
made when regular methods of service have been attempted but were unsuccessful.
 Evidence of unsuccessful service: The applicant needs to present evidence that they
made genuine efforts to serve the notice in the regular manner but were unable to do so.
This evidence demonstrates the necessity for substituted service.
 Certificate of Service of Foreign Process: If the official certificate or declaration upon
oath confirms that efforts to serve the notice of summons have been without effect, the
Registrar issues a Certificate of Service of Foreign Process (Form 11 Appendix A). This
certificate indicates that the attempts at regular service were unsuccessful.
 Ex parte application for substituted service: The plaintiff can then make an ex parte
application to the court, supported by all the necessary documents, including the original
request for service of process, the process received, and evidence of the unsuccessful
service. The purpose of this application is to request the court to order substituted service
of the notice.
 Order for substituted service: Upon considering the application, the court may issue an
Order to Bespeak Request for Substituted Service Abroad (Form 9 Appendix A). This
order authorizes the substituted service of the notice. The order is accompanied by a
Letter Forwarding Request for Substituted Service (Form No. 10 Appendix A) from the
Chief Justice.
 Filing the Certificate for Service of Foreign Process: After obtaining the necessary
order and letter, a Certificate for Service of Foreign Process is filed in the High Court.
This certificate confirms the completion of the substituted service and serves as proof of
the service being carried out.

In summary, Substituted Service Abroad allows for an alternative method of serving notice
when regular methods are unsuccessful. The process involves seeking permission from the
court, presenting evidence of unsuccessful service, obtaining a Certificate of Service of
Foreign Process, making an ex parte application for substituted service, receiving an order
from the court, filing the necessary certificates, and completing the service of the notice
through substituted means

What happens once documents have been filed and service is effected?

After the plaintiff has filed the necessary documents and effected service on the defendant,
the defendant is expected to respond within a specified timeframe. Here is an explanation of
what happens after the service:
 Timeframe for response: The defendant is given a specific period, typically stated in the
summons or notice, within which they must respond to the legal proceedings. This
timeframe allows the defendant to prepare their defense and submit any relevant
documents or pleadings.
 Filing a response: The defendant, upon receiving the summons or notice, should enter an
appearance in the court by filing a formal response. This response is usually in the form
of a written document called a statement of defense or a written statement of reply,
depending on the jurisdiction and the nature of the case.
 Content of the response: The defendant's response should address the allegations and
claims made by the plaintiff in the initial documents. It may include admissions, denials,
or explanations of the defendant's position regarding the issues raised in the case.
 Counterclaims or cross-claims: In some cases, the defendant may assert counterclaims
or cross-claims against the plaintiff or other parties involved in the legal proceedings.

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 These additional claims are separate from the original claims made by the plaintiff and
allow the defendant to seek relief or assert their own rights.
 Legal representation: The defendant may choose to be represented by an attorney or
legal counsel who will assist in preparing and presenting their defense. Legal
representation can help ensure that the defendant's rights are protected and that their
response is appropriately filed and presented.
 Court proceedings: Once the defendant has filed their response, the court will proceed
with the case according to the applicable legal procedures and rules. This may involve
scheduling hearings, allowing for the exchange of documents and evidence, and
conducting the necessary legal proceedings, such as motions, discovery, and witness
testimonies.
 Resolution of the case: The case will continue to progress through the court system, and
ultimately, a resolution will be reached. This can occur through various means, such as a
settlement agreement between the parties, a judgment by the court based on the evidence
and arguments presented, or the dismissal of the case if it is found to be without merit.
It is important for the defendant to promptly respond to the legal proceedings after being
served to ensure that their rights are protected and that they have the opportunity to present
their side of the case. Failure to respond within the specified timeframe can result in the court
making decisions or entering judgments against the defendant in their absence.

How do you respond to pleadings?

When responding to pleadings in a legal proceeding, the following steps are typically taken:
 Memorandum of Appearance: If a party is represented by an advocate they must
themselves in the case, they may file a Memorandum of Appearance. This document
informs the court and the opposing party that they intend to participate in the proceedings.
 Notice of Representation: If the party is represented by an advocate or legal counsel,
their advocate will file a Memorandum of Appearance along with a Notice of
Appointment. This notice indicates that the party has appointed the advocate to act on
their behalf in the case.
 Written Statement of Defense: The primary response to the initial pleadings is the filing
of a Written Statement of Defense. This document outlines the defendant's response to the
allegations and claims made by the plaintiff. It may contain admissions, denials, or
explanations of the defendant's position.
 Defence and Counterclaim: In some cases, the defendant may assert a counterclaim
against the plaintiff. A counterclaim is a separate claim made by the defendant against the
plaintiff, seeking relief or asserting their own rights. The Defence and Counterclaim
document is filed to present these additional claims.
 Reply to the Defence: If the plaintiff wishes to respond to the defendant's Written
Statement of Defense and Counterclaim, they may file a Reply. The Reply addresses the
specific points raised in the defense and provides any necessary clarification or rebuttal.

Explain a memorandum of appearance.

Appearance, in the context of legal proceedings, refers to the initial way of responding to
pleadings. In Kenya, entering appearance is not done by physically attending court, but rather
by filing a formal document known as a Memorandum of Appearance in the relevant court
registry. Here is an explanation of what appearance entails:
 Filing a Memorandum of Appearance: The defendant, upon receiving the summons to
enter appearance, files a Memorandum of Appearance in the prescribed form (Form 12 of

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 Appendix A) as specified in Order 6 of the Civil Procedure Rules (CPR). This document
notifies the court and the plaintiff that the defendant is entering appearance and intends to
participate in the proceedings.
 Timeframe for entering appearance: The defendant must file the Memorandum of
Appearance within the time period prescribed in the summons to enter appearance. This
time period is typically mentioned in the summons served on the defendant.
 Providing correct details: The Memorandum of Appearance requires the defendant to
specify their correct details, such as their name, address for service, email address, and
telephone number. These details serve as the contact information for the defendant
throughout the course of the suit. Where the defendant is a firm, the appearance must list
the individual partners by name with the description “Partners in the firm of”. Where the
defendant is an individual trading in a name other than his own, he must appear in his
own name with the addition of the description “trading as”. Where the defendant is a
corporation the appearance must be either by an advocate or by an officer of the
corporation duly authorized so to do under the corporate seal.
 Purpose of the Memorandum of Appearance: The Memorandum of Appearance
signifies that the defendant is ready to defend the suit. It serves as formal notice to the
court and the plaintiff that the defendant is participating in the proceedings and will be
actively involved in presenting their case.
 Unconditional and Conditional Appearance: There are two types of appearances that
can be made - unconditional and conditional. An unconditional appearance indicates that
the defendant fully intends to defend the suit and participate in all stages of the
proceedings. A conditional appearance, on the other hand, is made with certain conditions
or reservations regarding the defendant's involvement in the case.

In summary, appearance in legal proceedings in Kenya is made by filing a Memorandum of

Appearance in the prescribed form. This document informs the court and the plaintiff that the
defendant is entering appearance and ready to defend the suit. It is essential for the defendant
to file the Memorandum of Appearance within the specified timeframe and provide accurate
contact details for effective communication throughout the case.

What is appearance under protest?

Appearance under protest refers to a situation where a defendant enters appearance in a legal
proceeding while simultaneously objecting to the jurisdiction of the court. Here is an
explanation of what appearance under protest entails:
 Objecting to jurisdiction: The defendant, by entering appearance under protest, is
raising an objection to the court's jurisdiction. This means they are challenging the
authority of the court to hear and determine the case.
 Reservation of rights: By entering appearance under protest, the defendant is reserving
their right to contest the jurisdiction of the court and to challenge the validity of the suit.
They are indicating that they do not agree with the court's jurisdiction and may seek to set
aside the plaint or question the validity of the service.
 Protecting against default judgment: By entering appearance under protest, the
defendant avoids the risk of a default judgment being issued against them. If a defendant
fails to enter appearance, the court may proceed with the case and issue a judgment in
favor of the plaintiff in their absence.

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 Preserving options: Appearance under protest allows the defendant to participate in the
legal proceedings while reserving their right to challenge the jurisdiction or other
elements of the suit. It does not indicate an intention to pursue the suit itself but rather
serves as a protective measure against the consequences of non-appearance.
 Consequences of non-appearance: If the defendant does not enter appearance at all,
they may face serious consequences such as a default judgment being entered against
them or other adverse outcomes in the case.
In summary, appearance under protest occurs when a defendant enters appearance in a legal
proceeding while simultaneously objecting to the court's jurisdiction. By doing so, the
defendant reserves their right to challenge the jurisdiction, contest the validity of the suit, or
question the service. It is a means of protecting their interests and avoiding the adverse
consequences of non-appearance.

Explain appearance of for multiple defendants

Appearance for multiple defendants refers to the situation where there are multiple
defendants involved in a legal proceeding. Here is an explanation of appearance for multiple
defendants:
 Authorization for one defendant to enter appearance: In cases where there are
multiple defendants, it may be impractical for each defendant to individually enter
appearance. Therefore, one of the defendants may be authorized, in writing, to enter
appearance on behalf of themselves and the other defendants.
 Express written authorization: The authorization must be expressly given in writing by
the other defendants. This ensures that all defendants are aware of and agree to the
defendant entering appearance on their behalf.
 Avoiding duplicity of parties: By allowing one defendant to enter appearance on behalf
of all defendants, the court avoids duplicity of parties and streamlines the proceedings.
 Preservation of rights: It is important to note that authorizing one defendant to enter
appearance does not waive the rights of the other defendants. Each defendant still
maintains their individual rights and defenses in the case.
 Partnerships: In the case of partnerships, each individual partner should enter
appearance. However, they may enter appearance collectively by submitting one
memorandum of appearance that includes the names of all the partners entering
appearance.
 Different methods of appearance: Each defendant, including partners in a partnership,
is free to choose the method of appearance that suits their individual circumstances.
However, if one partner enters a conditional appearance denying the existence of the
partnership, they may be estopped from later entering a defense on the liability of the
partnership.
In summary, appearance for multiple defendants allows one defendant to enter appearance on
behalf of themselves and the other defendants, provided that there is express written
authorization. This helps streamline the proceedings and avoids duplicity of parties. Each
defendant, including partners in a partnership, maintains their individual rights and defenses
in the case.

What is a written statement of defence?

A Written Statement of Defence is a pleading filed by the defendant in response to the

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allegations made in the plaintiff's plaint. Here is an explanation of the purpose and use of a
Written Statement of Defence:
 Mode of response: The Written Statement of Defence serves as the defendant's formal
response to the allegations raised in the plaintiff's plaint. It provides an opportunity for the
defendant to address and counter the claims made against them.
 Filed after entering appearance: The defendant, after filing a Memorandum of
Appearance, is required to file their Written Statement of Defence within 14 days. This
timeframe begins from the date of entering appearance in the suit.
 Reply to the allegations: The Written Statement of Defence allows the defendant to
specifically address each allegation made by the plaintiff in the plaint. It provides an
opportunity for the defendant to deny or admit the claims, present their version of events,
and assert any defenses or counterclaims they may have.
 Serving the plaintiff: Once the Written Statement of Defence is prepared, the defendant
is required to serve a copy of it on the plaintiff within 14 days from the date of filing their
appearance. This ensures that the plaintiff is aware of the defendant's response to the
allegations.
 Affidavit of service: Along with filing the Written Statement of Defence, the defendant
is also required to file an Affidavit of Service. This affidavit confirms that the Written
Statement of Defence has been served on the plaintiff within the specified timeframe.

In summary, a Written Statement of Defence is a pleading filed by the defendant in response

to the plaintiff's allegations. It allows the defendant to address and counter the claims made
against them, present their version of events, and assert any defenses or counterclaims they
may have. The Written Statement of Defence must be filed within a specified timeframe after
entering appearance, and it must be served on the plaintiff. An Affidavit of Service is also
filed to confirm the proper service of the Written Statement of Defence on the plaintiff.

What are the functions of a written statement of defense?

The functions of a Written Statement of Defence (WSD) can be summarized as follows:

 State grounds and material facts: The WSD serves to clearly state the grounds and
material facts on which the defendant relies for their defense. It provides an opportunity
for the defendant to present their version of events, their legal arguments, and any
relevant facts that support their defense. The WSD should focus on presenting material
facts rather than presenting evidence or going into detailed legal arguments.
 Inform the plaintiff: The WSD serves as a means to inform the plaintiff about the
defendant's position and the information they have against the plaintiff's claim. By setting
out their defense and the material facts, the defendant provides the plaintiff with a clear
understanding of the issues in dispute and the evidence or arguments they will rely on.
This promotes transparency and ensures that both parties are aware of each other's case.
 Prevent trial by ambush: The WSD plays a crucial role in preventing trial by ambush in
civil litigation. By requiring the defendant to clearly set out their defense in writing, the
WSD ensures that the plaintiff is not taken by surprise during the trial. This allows for a
fair and balanced exchange of information, enabling both parties to prepare their case
adequately and address the issues in dispute.

Overall, the primary functions of a Written Statement of Defence are to state the grounds and
material facts of the defendant's defense and to inform the plaintiff about the defendant's
position. It serves to promote transparency, prevent trial by ambush, and facilitate a fair and
well-prepared trial process.

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Why is it important to deal with each paragraph separately as set out in the plaint?

Dealing with each paragraph separately in the plaint is important because it allows for a
thorough examination and response to the specific allegations and claims made by the
plaintiff. It ensures that no material facts or grounds are overlooked and enables a
comprehensive defense to be presented.

What matters can the defendant specifically plead in their defense?

The defendant can specifically plead matters such as release, inevitable accident, "act of
God," any relevant Statute of Limitation, or any fact showing illegality. These specific pleas
allow the defendant to address particular circumstances or legal principles that may affect the
plaintiff's claim.
What documents and statements should accompany the defense or counterclaim?

The defense or counterclaim should be accompanied by an affidavit (in the case of a

counterclaim), a list of witnesses to be called at trial, written statements signed by witnesses
(excluding expert witnesses), and copies of documents to be relied on at trial. These
supporting materials help substantiate the defendant's case and provide evidence for their
claims or defenses.

What are the objectives of making a defense?

The objectives of making a defense include challenging the maintainability of the plaintiff's
claim, stating issues that were not specifically pleaded to avoid surprises, and raising new
facts that can provide an answer to the allegations made in the previous pleading. By
pursuing these objectives, the defendant aims to present a strong defense and protect their
interests.

How can an opposing party respond to the claim or pleadings?

In response to the claim or pleadings, the defendant has several options. They can request
further and better particulars if they believe that the opposing party has more information to
provide. They can admit the facts stated but raise a question of law regarding their legal
effect. They can also deny or refuse to admit the facts, confess or admit the facts while
asserting additional facts to counter their effect, make an admission, plead a counterclaim,
state facts that give rise to a set-off, or plead tender as a form of settlement or payment. These
options allow the defendant to effectively respond to the opposing party's claims and present
their own arguments or counterclaims.

What are the ways to draft a defense ?

Seeking Further Particulars:

 The defendant can request for further information or particulars from the plaintiff by
submitting a notice in writing.

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  This can be done through the Request for Particulars Form (Form No. 2 Appendix A)
within a specific timeframe.
 The defendant may also make an application by chamber summons served in advance.
 Requesting further particulars is a way of attacking the plaintiff's case, as failure to
provide the requested information may lead to an application to strike out the
pleadings.

Raising a Point of Law:

 The defendant has the option to raise a point of law in their defense.
 It is important to distinguish between pleading the law (not permitted) and raising a
point of law (permitted).
 Pleading the law involves stating conclusions of law, which can obscure the facts of
the case and is not allowed.
 However, raising a point of law helps define or identify an issue or question of law
based on the facts pleaded.
 When drafting the defense, the defendant can respond to the factual allegations and
reserve the right to raise a preliminary objection at a later stage.
 This can be done by explicitly mentioning in the defense that the defendant reserves
the right to raise a preliminary objection and then filing a notice of preliminary
objection within the prescribed timeframe.
By utilizing these drafting strategies, the defendant can seek further information to clarify the
plaintiff's case or raise legal issues that may impact the outcome of the proceedings.

What is the difference between pleading law and pleading a point of law?

When it comes to pleading in legal proceedings, there is a distinction between pleading law
and pleading a point of law. Here is an explanation of the difference:

Pleading Law:
 Pleading law involves stating conclusions of law in the pleadings.
 It refers to making legal arguments or presenting legal theories without specifically
addressing the facts of the case.
 Pleading law is generally not allowed because it can obscure the facts and prevent a
clear understanding of the issues in dispute.
 It is important to focus on pleading the material facts of the case rather than solely
relying on legal conclusions.

Pleading a Point of Law:

 Pleading a point of law is different from pleading law as it relates to raising a specific
legal issue or question based on the facts pleaded in the case.
 It involves identifying an issue of law that needs to be addressed or resolved by the
court.
 When raising a point of law, the facts are usually not in dispute, and the focus is on
the legal implications or consequences of those facts.
 Examples of points of law can include matters of jurisdiction, limitation periods, res
judicata, privilege, or the validity of a custom.
 Raising a point of law is typically done through a formal notice of objection, which
notifies the opposing party about the specific legal issue that will be raised.

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  If a point of law is sustained by the court, it may have the effect of dismissing or
striking out the case at that point, as it deals with a preliminary issue.
In summary, while pleading law involves stating legal conclusions without addressing the
facts, pleading a point of law focuses on raising specific legal issues based on the facts
pleaded in the case. Raising a point of law requires careful consideration and may have
significant implications for the progress and outcome of the legal proceedings.

How to raise a point of law?

To raise a point of law in legal proceedings, the following steps can be taken:
 State the Objection Clearly: Raise the objection in a separate paragraph following the
paragraphs that deal with the facts pleaded. This ensures that the objection is clearly
distinguished and can be addressed separately.
 Raise a Substantive Point: The objection should raise a point of substance, focusing on
a significant legal issue rather than a mere technicality or defect of form. It should address
a ground that has a substantial impact on the case.
 State the Ground for the Objection: Succinctly state the specific ground or basis for the
objection. Clearly articulate the legal argument or principle that supports the objection.
 Consider Pleading as a Preliminary Issue: If the point of law requires serious and
prolonged argument, it is advisable to raise it as a preliminary issue. This means treating
it separately from the main trial and addressing it early on, before delving into other
factual issues.
 Take the Objection Explicitly: Clearly and explicitly take the objection, ensuring that
the points are precisely defined. Avoid raising abstract or hypothetical questions of law
that are not directly relevant to the facts and issues in the case.
 Impact on Evidence and Trial: If all the allegations in the plaint are admitted, but an
objection in a point of law is raised in the defence, it may eliminate the need for further
evidence at trial since there is no genuine issue of fact to be resolved.
 Raise Points of Law during Trial: While points of law are typically raised in the
pleadings, there may be instances during the trial where a party wishes to raise a point of
law. This should be done in a timely manner, clearly stating the grounds and relevance of
the point in relation to the ongoing proceedings.

What is a traverse in defense and what does it do?

A traverse in defence is a denial of an allegation of fact made in the plaint.

 It negates the allegation;
 It contradicts what is alleged and puts it in issue;
 It shifts the burden of proof to the plaintiff to prove the allegations denied.

A traverse can be made by a denial or a statement of non-admission, either expressly or by

implication (O2 r11(2)).

What are the requirements for a traverse?

A traverse must not be vague, general, or evasive. It must be specific, addressing each
allegation of fact, and providing a clear admission or denial. Any ambiguous phrase will be
construed as an admission.

What is the general rule regarding allegations of fact in pleadings?

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Any allegation of fact made by a party in their pleading is deemed admitted by the opposing
party unless it is traversed in the opposing party's pleadings (O2 r11(1)).

What is an omnibus denial?

An omnibus denial is a general denial of each and every allegation contained in the plaint as
if they were set forth verbatim and traversed seriatim.

What is confession and avoidance and when is it used ?

Confession and avoidance occur when the defendant admits certain allegations but introduces
additional facts that mitigate or excuse their legal consequences.

It is used when the defendant admits the existence of some allegations but seeks to avoid the
legal consequences by presenting additional facts that impact the claim.

What is an admission?

An admission may be express or implied. An implied admission occurs when a material fact
in the plaint is not traversed, while an express admission is a clear, unambiguous
acknowledgment of a fact.

What is a counterclaim and what is its use?

A counterclaim is a claim brought by the defendant against the plaintiff in response to the
original claim. It is a separate claim within the same lawsuit and must be specifically pleaded
(O7 r7).

A counterclaim is a claim brought by the defendant against the plaintiff within the same
lawsuit. It allows the defendant to assert their own claim against the plaintiff in response to
the original claim made by the plaintiff. Here are the key points about counterclaims:
 Purpose: A counterclaim is used when the defendant has a claim against the plaintiff that
arises from the same set of facts or circumstances as the plaintiff's claim.
 Options for the defendant: The defendant has the choice to either institute a separate
suit or set up their claim as a counterclaim in their defence.
 Determination within the same suit: If the court finds that the defendant's counterclaim
can be determined within the same suit without causing delay, inconvenience, or
prejudice to justice, the court may allow it.
 Example: For instance, if a bank sues an individual for a debt, but it is discovered that the
bank overcharged in its calculations, the individual can file a counterclaim against the
bank for the overcharging.
 Inclusion of additional parties: If a party not originally involved in the suit is included
in the counterclaim, they must be served with a copy of the defence in accordance with
the rules of service of summons.
 Appearance and reply: The included party must enter an appearance and file a reply to
the counterclaim within 15 days of being served with a copy of the counterclaim. They
must also serve all parties to the suit with their reply.
 Proceeding with the counterclaim: Even if the original suit by the plaintiff is stayed,
discontinued, or dismissed, the court may still proceed with the counterclaim.

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 Defence to counterclaim: The plaintiff, in response to the counterclaim, must enter their
defence to the counterclaim in the same manner as a defendant entering their defence.
Overall, a counterclaim allows the defendant to assert their own claim within the same
lawsuit, providing a comprehensive resolution to all claims between the parties involved.

What are the two types of set-off?

The two types of set-off are legal set-off and equitable set-off.

What is the difference between legal set-off and equitable set-off?

Legal set-off exists when there is a liquidated sum of money owed by the plaintiff to the
defendant. Equitable set-off arises when there is no liquidated amount, and the suit is settled
through adjudication.

What is a counterclaim?

A counterclaim is a cross-action initiated by the defendant within the pending suit of the
plaintiff. It involves the defendant raising a cause of action against the plaintiff.

What is the distinction between a set-off and a counterclaim?

The distinction between a set-off and a counterclaim is that a set-off is a defense or answer to
the plaintiff's claim, while a counterclaim is a separate action or cross-action against the
plaintiff. Additionally, if the plaintiff obtains judgment or the action is stayed or dismissed,
the set-off comes to an end, but a counterclaim can still be proceeded with.

What is the purpose of pleading tender?

Pleading tender occurs when the defendant offers the amount they believe they owe the
plaintiff. It is done to resolve the claim without proceeding further with the suit.

What is the advantage of pleading tender?

The advantage of pleading tender is that if the plaintiff succeeds on the extra amount claimed,
the plaintiff will only be given costs in regard to the balance, not the entire suit sum.
However, the court has discretion in awarding costs and may even deny them.

Can a set-off be used as a sword or a shield?

A set-off can only be used as a shield, meaning it can be used by the defendant as a defense
to the plaintiff's action, but it cannot be used as a sword to initiate a separate action against
the plaintiff.

What are the consequences of non-appearance, default of defense, and failure to serve
in a legal proceeding?

The consequences of non-appearance, default of defense, and failure to serve in a legal

proceeding are as follows:

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  If no appearance is entered for a minor or a person of unsound mind, the plaintiff can
apply to the court for an order for a guardian for the defendant to appear and defend the
suit.
 If the defendant fails to appear, the plaintiff can file an affidavit of service of summons.
If the claim is for a liquidated amount and the defendant fails to appear by the specified
date, the court can enter judgment for a sum not exceeding the claimed amount, along
with interest and costs.
 If the claim is for an unliquidated sum and other claims, the awarding of costs will be
determined after the other claim has been settled.

What is a counterclaim and how is it different from a set-off?

A counterclaim is a cross-action initiated by the defendant against the plaintiff within the
same pending suit. It involves the defendant raising a cause of action against the plaintiff. On
the other hand, a set-off is a defense used by the defendant to offset or deduct a claimed
amount from the plaintiff's claim. A set-off is considered a shield, while a counterclaim is a
sword. Additionally, if the plaintiff obtains judgment or the action is stayed or dismissed, the
set-off comes to an end, but a counterclaim can still be proceeded with.
1. What is an interlocutory application in kenya?

In Kenya, an interlocutory application refers to a legal proceeding or motion filed by a party

during the course of a lawsuit or legal dispute. It is an application made to the court seeking
an order or direction that is necessary to facilitate the progress of the case or to protect the
rights of the parties involved. Interlocutory applications are filed when there is a need for an
interim decision or relief before the final judgment or resolution of the case.
Interlocutory applications can be filed for various reasons, such as:
1. Stay of proceedings: A party may seek a stay of the court proceedings temporarily,
usually to address a particular issue or to allow time for further investigations or
preparations.
2. Injunctions: A party may request the court to issue an injunction to prevent the other
party from taking certain actions that could cause harm or damage during the course
of the case.
3. Discovery: A party may apply for an order to obtain documents, evidence, or
information from the other party through the process of discovery, which helps gather
relevant facts and evidence for the case.
4. Amendment of pleadings: A party may seek permission from the court to amend their
pleadings, such as the statement of claim or defense, to clarify or add additional
details.
5. Appointment of receivers: In certain cases, the court may appoint a receiver to
manage or safeguard specific assets or properties during the litigation process.
Interlocutory applications play a crucial role in ensuring fair and efficient legal proceedings.
They allow parties to seek timely relief, protect their rights, and address important matters
that arise during the course of a lawsuit, without waiting for the final judgment

What is an interlocutory(interim) judgement?

In Kenya, an interlocutory judgment refers to a partial or provisional judgment that is issued

by the court during the course of a legal proceeding. It is an interim decision made by the
court on a specific issue or aspect of the case, which does not finally determine the rights or
liabilities of the parties involved.

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Interlocutory judgments are different from final judgments, as they are not intended to
provide a conclusive resolution of the entire case. Instead, they address interim matters that
arise during the litigation process. Some examples of issues on which interlocutory
judgments may be made include:
 Jurisdiction: The court may issue an interlocutory judgment to determine whether it
has the authority to hear and decide a particular case.
 Discovery disputes: If there is a disagreement between the parties regarding the
production of documents or the scope of discovery, the court may issue an
interlocutory judgment to resolve the dispute.
 Injunctions: The court may grant or deny an interlocutory injunction, which is a
temporary order that either prohibits or compels a party to take certain actions
pending the final determination of the case.
 Stay of proceedings: An interlocutory judgment may be issued to grant a stay of the
court proceedings temporarily, often to allow time for the resolution of a specific
issue or to facilitate settlement discussions.
 Interim applications: The court may make an interlocutory judgment on various
interim applications, such as applications for amendment of pleadings, appointment of
receivers, or appointment of experts.
It's important to note that an interlocutory judgment is subject to review and can be
reconsidered or varied by the court at a later stage of the proceedings. It is typically followed
by further steps in the litigation process, leading up to a final judgment that determines the
rights and liabilities of the parties in their entirety.

An interlocutory judgement is an umbrella term for a default judgement and a summary

judgement. It is an umbrella for any judgement that is given before the suit is determined
entirely.

When the courts granted default or summary judgement, if it remains unchallenged this
interlocutory judgement will be the judgement that disposes this suit.

Distinguish between summary and default judgment.

They're made by the court through interlocutory applications. And that determined by the
courts before the entire suit is completely determined.

In Kenya, summary judgment and default judgment are two different types of judgments that
can be issued in legal proceedings. Here's how they are distinguished:
Summary Judgment: Summary judgment is a judgment that is granted by the court
without a full trial when it is determined that there is no genuine issue of material fact
and that the party applying for the judgment is entitled to it as a matter of law. It is
typically granted when one party believes that the case is clear-cut and there is no
need for a trial to determine the outcome.

Key characteristics of summary judgment in Kenya include:

 It is typically granted based on the written submissions, affidavits, and evidence
provided by the parties.
 It is granted when the court finds that there is no real dispute regarding the facts of the
case and that one party is clearly entitled to judgment.

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  The court decides the case based on the legal arguments and evidence presented
without the need for a full trial.
Default Judgment: Default judgment is a judgment that is entered against a party
who has failed to take a required action within the specified time period or has failed
to defend a claim. It is typically granted when the defendant fails to respond to the
plaintiff's claim or fails to comply with procedural requirements.

Key characteristics of default judgment in Kenya include:

 It is granted when the defendant fails to file a statement of defense or fails to appear
in court after being properly served with the claim.
 The court may grant default judgment if it is satisfied that the plaintiff's claim is valid
and that the defendant has no valid defense or explanation for the default.
 The plaintiff is required to prove their claim to the satisfaction of the court, but the
defendant's failure to participate may limit the evidence that can be presented.

Summary judgment and default judgment are two distinct types of judgments in Kenya.
Summary judgment is granted when there is no genuine dispute of material fact and the party
seeking judgment is entitled to it as a matter of law. It is typically based on written
submissions, affidavits, and evidence, and is granted without a full trial. On the other hand,
default judgment is entered against a party who fails to take the required action or defend a
claim within the specified timeframe. It is granted when the defendant fails to respond or
comply with procedural requirements. Unlike summary judgment, default judgment is a
consequence of the defendant's failure to participate, and the plaintiff is still required to prove
their claim. While summary judgment focuses on the merits of the case, default judgment is
primarily a result of the defendant's non-participation or non-compliance.

Difference between judgement, judgement in default and summary judgement

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

What is the procedure for requesting judgment in default?

The procedure for requesting judgment in default involves the following steps:
 Retrieve the file and pay court fees.
 Mark the file to the Deputy Registrar for perusal and directions.
 The Deputy Registrar enters the final or interlocutory judgment depending on the
reliefs sought in the plaint.
 The matter is set down for a formal proof hearing upon entry of interlocutory
judgment.
 An affidavit stating the mode of service and a copy of the license to serve are annexed
to the request for entry of judgment.

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  If the defendant is the government, a formal application for leave to enter judgment is
required.

How can a default judgment be set aside?

A default judgment may be set aside if it was irregularly obtained or if the defendant shows
that there are triable issues. The defendant must provide a reasonable excuse for failing to
appear and demonstrate the merit in their defense to the case. The court has the discretion to
impose terms when setting aside a regularly obtained judgment, such as ordering the
defendant to pay money into court.

What are the reasons for delay that may be accepted when applying to set aside a
default judgment?

Some reasons that may be accepted for delay in applying to set aside a default judgment
include a mistake by a negligent advocate, ignorance of procedure by an unrepresented
defendant, and illness of a party. However, failure to instruct an advocate is not considered a
sufficient cause to justify delay.

How does the court distinguish between regular and irregular judgments?

A regular judgment is one where the service of summons to enter appearance has been
properly served and judgment has been entered. An irregular judgment is one where service
is not properly effected and judgment is entered. The court has the discretion to set aside an
irregularly obtained judgment as a matter of right without imposing terms.
.

What are the consequences of non-appearance?

Consequences of non-appearance can vary depending on the circumstances of the case. Here
are some possible consequences:
 Where no appearance has been entered for a minor or a person of unsound mind, the
plaintiff must make an application to the court for an order appointing a guardian to
appear and defend the suit. This applies to defendants who are minors or persons of
unsound mind (Order 10, Rule 1).
 If the defendant fails to appear, the plaintiff is required to file an affidavit of service of
summons, confirming that the defendant was properly served with the summons (Order
10, Rule 2).
 In cases where the claim is for a liquidated amount and the defendant fails to appear by
the specified date, the plaintiff can request the court to enter a judgment in their favor.
The judgment will be for a sum not exceeding the liquidated amount claimed, along with
interest from the date of filing to the date of judgment, and costs at a reasonable rate
determined by the court (Order 10, Rule 4(1)).
 It is important to note that in a liquidated claim, the parties are bound by their pleadings.
Whatever is pleaded by the parties will determine the outcome of the case (Order 10, Rule
4(1)).
 In cases where the claim is for an unliquidated sum and there are other claims involved,
the determination of costs will be made after the settlement of the other claims (Order 10,
Rule 4(2)).

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These consequences highlight the importance of appearing in court and responding to the
summons or pleading in a timely manner. Failure to do so can result in adverse judgments or
the need for additional legal proceedings. It is advisable to consult with a legal professional to
understand the specific consequences that may apply in a particular case.

What happens if some of the defendants fail to appear in a case where the plaint makes
a liquidated demand with any other claim?

In such a case, the court, upon request, will enter judgment against the defendants who fail to
appear, as per Form No. 13 of Appendix A, according to Order 10, Rule 4. Execution may
proceed against those defendants. However, the plaintiff can still proceed with the action
against the defendants who have appeared (Order 10, Rule 5).

How can a plaintiff request for judgment in a case with multiple defendants who fail to
enter appearance and file their defense?

The plaintiff can request judgment under Form No. 13. This applies when the defendants fail
to enter appearance and file their defense. The court will enter an interlocutory judgment
against the defendants who failed to appear (Order 10, Rule 4).

What is the distinction between a liquidated claim and an unliquidated claim?

A liquidated claim is a demand for a specific sum of money that is capable of calculation. It
can be determined without further assessment. In contrast, an unliquidated claim, such as a
claim for damages in a bailment or an accident case, requires assessment and calculation by
the court to determine the amount owed.

What happens when the defendant fails to appear in a case involving an unliquidated
claim?

In the case of an unliquidated claim, if the defendant fails to appear, the plaintiff can apply
for an interlocutory judgment against the defendant by filing a Request for Judgment. The
judgment will address liability but not the amount to be paid. The plaintiff will then set down
the suit for assessment of the damages or value of goods and damages (Order 10, Rule 6).

Can a judgment that has been irregularly obtained be set aside?

Yes, a judgment that has been irregularly obtained can generally be set aside without terms.
This applies when there are issues with service or other irregularities. However, a judgment
that has been regularly obtained may be set aside if the defendant can show a reasonable
excuse for their failure to appear and demonstrate a merit in their defense (Order 10).

What are the grounds for setting aside a default judgment?

The grounds for setting aside a default judgment include irregular service, the existence of
triable issues, and the presence of a valid defense. The defendant should provide evidence
supporting these grounds and explain any delay in making the application to set aside the
judgment.

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What factors should be considered when determining whether to set aside an
irregularly obtained judgment?

When deciding to set aside an irregularly obtained judgment, the court considers whether
there was a reasonable excuse for the defendant's failure to appear and whether there is merit
in the defense presented. The court may also impose terms, such as ordering the defendant to
pay money into court.

How should a defendant respond to an application for setting aside a default

judgment?

A defendant can respond to an application for setting aside a default judgment by providing
reasons and evidence to challenge the grounds for setting aside the judgment. They can argue
against irregular service, present triable issues, and demonstrate a valid defense.

What are the consequences of delay in making an application to set aside a default
judgment?

If there is a delay in making the application to set aside a default judgment, the defendant
should explain the reasons for the delay in an affidavit. The court has discretion to either
reject or allow the application, considering the reasons provided.

Can a default judgment that was irregularly obtained be set aside without imposing any
terms?

Yes, a default judgment that was irregularly obtained can generally be set aside as a matter of
right (ex debitio justitiae) without imposing any terms. However, this applies only when there
are issues with service or other irregularities.

What is the procedure for Originating Summons (OS) after filing?

After filing the OS, the party is required to go for directions within 30 days. The deputy
registrar will place the file and issue a notice for the party to appear before the judge and take
directions. One of the considerations during directions is whether the case can proceed by
way of affidavit evidence.

What are the grounds for raising a preliminary objection or opposition when someone
approaches the court in an improper manner?

When someone approaches the court in an improper manner, the grounds for raising a
preliminary objection or opposition can be used to challenge the case. These grounds can
include lack of jurisdiction, non-compliance with procedural requirements, or failure to
disclose a reasonable cause of action or defense.

What powers does the court have to strike out pleadings?

The court has the power to strike out or amend any pleadings at any stage of the proceedings.
This power is conferred by Order 2, Rule 15. The court uses this power to enforce the formal

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requirements of pleadings and to ensure compliance with the rules. However, the court
exercises this power judiciously and considers the circumstances of each case.

What are the grounds for striking out pleadings?

The court may order the striking out of pleadings if they disclose no reasonable cause of
action or defense, if they are scandalous, frivolous, or vexatious, if they may prejudice,
embarrass, or delay a fair trial, or if they amount to an abuse of the process of the court.
These grounds are provided in Order 2, Rule 15.

What is the nature of the court's power to strike out pleadings?

The court's power to strike out pleadings is discretionary and falls under the court's inherent
jurisdiction. It is a summary process without a trial, meaning that if the grounds for striking
out are established, the case may come to an end without the need for oral evidence. The
court may also order the amendment of pleadings if they are curable.

What is the purpose of the court's power to strike out pleadings?

The purpose of the court's power to strike out pleadings is to enforce the rules of pleadings,
promote justice, prevent vexatious litigation, and prevent a party from abusing the process of
the court. It allows the court to dismiss cases that lack a reasonable cause of action, are
scandalous or frivolous, or may prejudice the fair trial process.

What is required when making an application to strike out pleadings?

When making an application to strike out pleadings, the specific grounds under which the
application is made must be set out. Whether it is an abuse of the court process, scandalous
and vexatious pleadings, or lack of a reasonable cause of action, the grounds should be
clearly stated. Oral evidence is generally not admissible in such applications.

How does the court determine if a cause of action is reasonable?

A cause of action must be one recognized by the laws of Kenya, such as statutes, common
law, or English Common Law adopted by reception. If a cause of action is not supported by
any law in Kenya, it may be struck out. The court looks at the substantive area of law to
which the claim belongs and assesses its legal basis.

What makes pleadings scandalous, frivolous, or vexatious?

Pleadings are considered scandalous if they contain irrelevant or abusive content that casts
aspersions on the other party. They are frivolous if they lack foundation or cannot possibly
succeed. Pleadings are vexatious if they are not made in good faith, are oppressive, or cause
unnecessary expenses and anxiety for the other party.

How does the court determine if pleadings are an abuse of the process or may prejudice,
embarrass, or delay a fair trial?

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Pleadings can be considered an abuse of the process of the court if they are misused for
oppression or in bad faith. If pleadings are vague, ambiguous, unintelligible, or raise
immaterial matters, they may prejudice, embarrass, or delay a fair trial. Proper and clear
pleadings that address the relevant issues are required to avoid such prejudice.

What is an amendment?

An amendment refers to the rectification or modification of a pleading. It is the process of

making changes to the content of a pleading to correct errors, add or remove allegations, or
introduce new matters.

When do pleadings close?

Pleadings close 14 days after the last pleading has been filed. Once the plaintiff files the
plaint, the defendant files their defense, and either a reply to the defense is filed within 14
days or the 14-day period lapses without a reply, the pleadings are considered closed.

Can pleadings be amended after they close?

Generally, once pleadings are closed, amendments to the respective pleadings require the
leave of the court. However, before pleadings close, the defendant can file their defense or
include certain matters in the plaint without seeking leave of the court. Within 14 days after
the defense is filed, the party has the opportunity to amend their pleadings without seeking
leave.

What are the rules for amending pleadings?

When making amendments to pleadings, there are specific rules to follow. If a new matter is
introduced, it should be underlined. The amendment should be done in red ink, indicating the
changes made. If a further amendment is made, it should be underlined, but the color of the
underline may change. Any new application for amendment after the initial opportunity will
require the leave of the court.

What is the purpose of summary procedure in disposing of suits?

The purpose of summary procedure is to allow a plaintiff with a liquidated claim, where there
is clearly no valid defense, to obtain a quick and summary judgment. It aims to prevent
unnecessary delays caused by the defendant's tactics and ensures that the plaintiff receives
what is due without going through a full trial.

What is required for a claim to be considered a proper candidate for summary

judgment?

To be considered a proper candidate for summary judgment, the following conditions must be
met:
 The plaintiff must have filed an endorsed plaint.
 The endorsed plaint must be supported by an affidavit that verifies the facts upon which
the claim is based and states that, in the deponent's belief, there is no defense to the claim
or part of the claim for which the application is made.
 There must be no defense to the claim.

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 The relief sought by the plaintiff must be for a debt or a liquidated claim. Summary
procedure does not apply to claims such as libel, slander, malicious prosecution,
allegations of fraud, probate actions, or actions against the government.
 In cases of the recovery of land with or without a claim for rent and mesne profits by a
landlord from a tenant whose term has expired or been determined, certain specific
circumstances must be met, such as notice to quit, non-payment, or breach of covenant.

How is summary judgment obtained in summary procedure?

Summary judgment is obtained through a notice of motion filed by the plaintiff. Instead of
going through a full trial, the plaintiff seeks summary judgment based on the conditions
mentioned earlier. The court considers the pleadings, affidavits, and any other relevant
evidence provided and decides whether to grant summary judgment or proceed to a full trial.

What are the contents of a verifying affidavit?

The contents of a verifying affidavit typically include:

 Heading: Identifying the court, case, and parties involved.
 Title: Clearly stating that it is a "Verifying Affidavit."
 Introduction: Providing the affiant's name, occupation, address, and their relationship to
the case if applicable.
 Verification: Affirming that the contents of the accompanying document are true and
correct to the best of the affiant's knowledge, information, and belief.
 Description of Accompanying Document: Clearly describing the document or pleading
being verified, including its title, date, and a brief summary of its contents.
 Facts Verification: Providing a detailed and chronological account of the relevant facts,
supported by personal knowledge and any available evidence or documentation.
 Signature: The affiant's signature, full name, and the date of signing.
 Commissioner of Oaths: The affidavit should be sworn or affirmed before a
Commissioner of Oaths, who will sign and stamp or seal the affidavit to validate it.

Why can a person claiming libel, slander, malicious prosecution, allegations of fraud,
probate actions, and actions against the government not use the summary procedure?

The summary procedure is not applicable to claims such as libel, slander, malicious
prosecution, allegations of fraud, probate actions, and actions against the government. This is
because these claims typically involve complex issues, disputes, or assessments that require a
thorough examination by the court. The summary procedure is more suitable for cases with
liquidated claims, where there is no valid defense, and a quick judgment can be obtained
without a full trial.

When do pleadings close in a case?

Pleadings close 14 days after the filing and service of the last pleading. This means that once
the parties involved have filed and served their respective pleadings, the 14-day period
begins, after which no further amendments or filings can be made to the pleadings without
the leave of the court.

How can a defendant oppose an application for judgment under Order 36?

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A defendant can oppose an application for judgment under Order 36 in several ways:
 By raising a preliminary technicality.
 By showing that there is a clear defense to the claim.
 By demonstrating that there is a serious issue of fact that needs to be tried.
 By raising an arguable point of law.
 By presenting a prima facie set-off or counterclaim.
 By showing the court that there are other reasons why a trial should be held.

What is the "Cheque Rule" in summary judgment applications?

The "Cheque Rule" states that where goods or services are paid for by a dishonored cheque or
bill of exchange, the payee is entitled to summary judgment on the cheque. The defendant is
precluded from setting off against the claim or any counter-claim for damages related to the
goods or services. The defendant cannot stay execution pending the resolution of cross-
claims and must pay first, with the option to pursue a cross-suit later. This rule is based on
commercial convenience and considers cheques as equivalent to cash, allowing for efficient
resolution of disputes related to cheque payments.

What is the meaning of interim orders?

Interim orders refer to legal orders obtained under the inherent jurisdiction of the court, as
provided by Section 3A of the Civil Procedure Act. These orders are available even in the
absence of a pending suit and are intended to protect a client's interests. The applicant must
undertake to file a suit at the next available opportunity and be prepared to pay damages if it
is found that the order was wrongfully obtained or based on insufficient facts.

What are the types of interim orders that can be obtained?

The types of interim orders that can be obtained include:
 Orders for a commission: These are applied for through Chamber Summons and allow
for various purposes such as examining witnesses, making local investigations, examining
accounts, making partitions, and conducting scientific investigations.
 Arrest before judgment: This order allows for the arrest of a person before the judgment
is given, typically in cases where there is a risk of the person absconding to avoid
liability.
 Attachment before judgment: This order allows for the attachment of the defendant's
property if there is a danger of the defendant trying to circumvent justice by disposing of
their assets.
 Temporary injunctions: Injunctions require a party to do or refrain from doing a
particular act and are aimed at preserving property and legal rights until conflicting
claims are determined.
 Appointment of receivers: This involves appointing a neutral person to hold a disputed
property until the case is heard and determined.
 Security for costs: This requires the plaintiff to provide security to cover potential costs
if they reside outside the jurisdiction or do not have sufficient property within the
jurisdiction.

When can an order for a commission be sought?

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An order for a commission can be sought within a pending suit through Chamber Summons.
It allows for various purposes, including the examination of witnesses, local investigations,
examination of accounts, partitions, and scientific investigations.

Under what circumstances can arrest before judgment be applied for?

Arrest before judgment can be applied for in special circumstances when there is a risk that a
person may leave the jurisdiction of the court with the intent to abscond liability and defeat
justice. This application is made before judgment and must be supported by evidence.

What is the purpose of attachment before judgment?

Attachment before judgment is used when the defendant is disposing of their property to
avoid the realization of a court decree. If there is a real danger of circumventing justice, the
court can order the attachment of the property. However, the court exercises caution in
granting this order as it involves taking away someone's property.

What are the conditions that must exist for a temporary injunction to be granted?
The conditions for granting a temporary injunction are as follows:
 The applicant must establish a prima facie case.
 The application must demonstrate that irreparable harm and damage would be caused if
the injunction is not granted.
 The balance of convenience must be in favor of the applicant.

How does the appointment of receivers work?

The appointment of receivers is an equitable relief granted by the court. It involves

appointing a neutral person to hold a disputed property until the case is heard and determined.
The receiver can be selected by the claimant and should have professional indemnity. The
receiver manager is appointed when there is an ongoing concern, and they are given specific
orders to manage the property.

When can security for costs be required?

Security for costs may be required when a plaintiff resides outside the jurisdiction or when
they do not have sufficient immoveable property within the jurisdiction. The court may order
security for costs to ensure that the defendant's potential costs can be satisfied if the plaintiff
is unsuccessful. The amount of security will be determined by the court based on relevant
factors.

Assuming we have just learned about terminating suits by way of summary procedure, why
would someone choose to go for security for costs instead of using other methods to
terminate the suit?

Security for costs is a measure used to protect the interests of the defendant.

It is particularly relevant in situations where the plaintiff resides outside the jurisdiction, has
no substantial property within the jurisdiction, is suing on behalf of someone else and may be
unable to pay costs, or has changed their address with the intent to evade the consequences of
litigation. By requiring security for costs, the defendant can be assured that their potential

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costs will be covered if they are successful, and it serves as a means to ensure the reasonable
protection of the defendant's interests.

What is the nature of an interlocutory injunction?

An interlocutory injunction is an order of the court that directs a party to the proceedings to
either do or refrain from doing a specified act. It is a temporary injunction issued to protect
the rights of a party until the final determination of the case.

When are interim injunctions granted?

Interim injunctions are granted in cases where there is a need to protect a party's rights or
prevent potential harm during the pendency of a legal proceeding. They are typically sought
when monetary compensation would not be sufficient to remedy the harm suffered.

What are the grounds for granting an interlocutory injunction?

An interlocutory injunction may be granted if the party seeking it can prove by way of
affidavit that the property in dispute in a suit is in danger of being wasted, damaged, or
alienated by any party to the suit, or wrongfully sold in execution of a decree. Additionally, if
the defendant threatens or intends to remove or dispose of their property with a view to
defraud their creditors, the court may grant a temporary injunction to restrain such acts.

What are the general principles for granting an interlocutory injunction?

The general principles for granting an interlocutory injunction are derived from the case of
American Cyanamid v. Ethicon Limited. The court should consider the following criteria:
(a) whether there is a serious issue to be tried,
(b) whether damages would be an adequate remedy,
(c) where the "balance of convenience" lies, and
(d) whether there are any special factors to be considered.

What are the consequences of breaching an interlocutory injunction?

If a party disobeys or breaches the terms of an interlocutory injunction, the court may order
the attachment of the property of the person guilty of disobedience or breach. The court can
also detain the person in prison for a term not exceeding six months. Breaching an
interlocutory injunction can lead to contempt of court proceedings and potential
imprisonment.

What is the difference between a temporary injunction and an interlocutory injunction?

A temporary injunction and an interlocutory injunction are often used interchangeably to

refer to a temporary order issued by the court. However, specifically, an interlocutory
injunction is limited to apply only until the final determination of the case, while a temporary
injunction may have a specific duration or be granted until a named day or further order.

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What are the vitiating factors that can lead to the discharge of an interlocutory
injunction?

An interlocutory injunction can be discharged if there is evidence of material non-disclosure

or misrepresentation of facts on an ex parte application. Additionally, if there has been a
significant change in circumstances since the injunction was granted or if the facts do not
justify the grant, the court may discharge the injunction. Furthermore, if the plaintiff fails to
prosecute the substantive claim sufficiently and expeditiously or if the injunction is found to
be oppressive or interfering with the rights of third parties, it may be discharged.

What is the purpose of a Mareva injunction?

A Mareva injunction, also known as a freezing injunction, is designed to prevent a defendant

from disposing of their assets to frustrate any future judgment made against them. It aims to
maintain the status quo by freezing the defendant's assets to ensure that the plaintiff can
secure payment or preserve assets until the case is heard and determined.

What are the requirements for obtaining a Mareva injunction?

To obtain a Mareva injunction, the court must have jurisdiction over the claim, the plaintiff
must have a good arguable case, the defendant should have assets within the jurisdiction,
there must be a real risk of asset removal or dissipation, there must be a real risk that the
defendant will be unwilling or unable to satisfy the plaintiff's claim, and the balance of
convenience should favor granting the injunction.

What is an Anton Piller Order?

An Anton Piller Order is a mandatory injunction that allows the plaintiff to search and seize
evidence relevant to their claim. It is typically sought in cases of intellectual property
disputes, and it is granted ex parte to maintain the element of surprise. The order enables the
plaintiff to enter the defendant's premises and seize incriminating materials before they can
be destroyed.

What are third party proceedings?

Third-party proceedings refer to a legal procedure in which a defendant in a lawsuit brings a
claim against another person, either a co-defendant or someone who is not a party to the
original proceedings. The purpose of third-party proceedings is to include additional parties
in the lawsuit to prevent multiple actions and ensure that the same facts are tried with
consistent results.
In third-party proceedings, the defendant (now acting as a third-party plaintiff) asserts that the
third party is or may be liable to them for all or a portion of the plaintiff's claim against the
defendant. This allows the defendant to seek indemnity or contribution from the third party.
Indemnity is a form of reimbursement where a party alleges that they are entitled to be
compensated. This can arise from a contractual agreement or a court ruling. For example, in
insurance law, an insurer may be bound to indemnify the insured if liability is proven.
Indemnity can also stem from a tort, where one party seeks to be fully compensated for any
losses or damages.

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Contribution, on the other hand, refers to partial indemnity. In this case, the party asserting
contribution argues that while they should bear some responsibility, another party is also
liable and should share the burden of the liability.
Overall, third-party proceedings provide a mechanism for defendants to bring additional
parties into a lawsuit to allocate responsibility and seek indemnity or contribution for the
plaintiff's claim. This helps streamline the legal process and ensures that all relevant parties
are involved in resolving the dispute.

What is the meaning of the seriatim clause in a defence?

Seriatim is a Latin word meaning ‘in series or one by one’.

In every written statement of defence, the defendant must specifically deny every allegation
of fact made in the plaint unless of course he intends to admit them.
The Plaintiff is also expected to specifically deny every allegation made in the counter claim
unless he intends to admit them.
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.

What is the difference between hearing date and mention date?

 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.

What are garnishee proceedings?

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

What is the difference between joinder of parties and third party applications?

Joinder of parties refers to the plaintiff's application to include the correct parties in a lawsuit
to ensure fairness and avoid prejudicing their case. It is important to join the correct parties to
the suit, such as enjoining the attorney general when suing the government or indicating that
a minor is suing through a guardian or next friend.
On the other hand, third-party applications are made by defendants to apportion liability
between themselves and another party, often based on indemnity or contribution. If a
defendant is found liable for a cause of action, they may seek to involve a third party, such as
an employer, to share the liability. This is done through a third-party application, where the
court determines the liability and apportions the responsibility between the defendant and the
third party.

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The third party's involvement in the suit depends on the outcome of the main case. If the
defendant is held liable, a separate suit is conducted to determine the liability between the
defendant and the third party. The court may allocate a portion of the liability to each party
based on their respective roles and financial position.

What is the difference between third party procedure and counter claim?

Third party procedure involves the addition of a new party to the existing lawsuit who is not
originally involved in the dispute between the plaintiff and defendant. This new party is
brought in by the defendant to share or assume liability for the plaintiff's claim against the
defendant. It expands the scope of the proceedings by introducing a new party.
On the other hand, a counterclaim is a claim made by the defendant against the plaintiff
within the same ongoing lawsuit. It is a separate claim by the defendant against the plaintiff,
asserting that the plaintiff has also caused harm or is liable for a different issue. Unlike third
party procedure, the counterclaim involves the existing parties to the lawsuit and does not
introduce a new party.
In summary, third party procedure brings in a new party to share or assume liability, while a
counterclaim is a claim made by the defendant against the plaintiff within the same lawsuit.

What is the difference between a ruling and a judgment?

A judgement is the court’s decision of the whole suit from the beginning to the end.

A ruling is the court decision on interlocutory applications, or any other application that is
being raised in there in the course of the suit being hard and determined. This is things to do
with third party applications, things to do with injunctions, things to do with amendment of
pleadings. Just anything raised in the middle the cultural deliverer ruling based on that
application that has been filed.

What is the difference between res judicata and Sub judice rule ?

Res judicata is a legal principle that states that once a matter has been finally decided by a
court of competent jurisdiction, it cannot be reopened or challenged by the original parties or
their successors in interest. This doctrine aims to promote finality and prevent the relitigation
of the same issue.
There are three essential elements of res judicata:
1. The matter in question has already been adjudicated before a court of competent
jurisdiction.
2. The parties involved in the current case are the same as or successors to the parties in
the previous case.
3. The subject matter of the current case is the same as the matter that was decided in the
previous case.
Res judicata applies to both factual and legal issues. Once a court has made a final decision
based on the facts, it is considered conclusive and cannot be reopened by the same parties in
subsequent litigation. However, if there is a pending appeal or a successful appeal that
reverses the decision, res judicata may not apply.

When considering the application of res judicata between co-defendants, certain conditions
must be met. There must have been a conflict of interest between the co-defendants, and the

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court's decision on that conflict must have been necessary to grant the relief sought by the
plaintiff. The questions between the co-defendants must have been finally decided, and they
must have been proper and necessary parties to the original case.

What are instances when you can settle a suit out of court ?
 Plaintiff may discontinue suit;
 Plaintiff may withdraw part of his claim.
 Defendant may submit to judgment.
 Defendant may make payment into court in satisfaction of the plaintiff’s claim.
 Defendant may compromise with plaintiff on certain terms.

What are grounds for divorce?

 Desertion
 Cruelty
 Irretrievability broken down

What is the difference between Verifying affidavit, Replying affidavit and Supporting
affidavit, Affidavit of service?
Verifying Affidavit:
 Purpose: A Verifying Affidavit serves the purpose of confirming the truthfulness and
accuracy of the facts stated in a document or pleading for instance a plaint. It ensures that
the information contained in the document is based on the personal knowledge and belief
of the deponent.
 Filing: The Verifying Affidavit is typically attached to the document it verifies. For
example, in a court case, it may be attached to a statement of claim, a petition, or an
application.
 Content: The Verifying Affidavit usually includes a statement along the lines of "I, [name
of the deponent], do solemnly and sincerely affirm [or swear] that the contents of this
[document being verified] are true to the best of my knowledge, information, and belief."
 In plaints and defences we have a verifying affidavit confirming the contents of a plaint
or judicial review application. These are the only two instances we will use a verifying
affidavit

Supporting Affidavit:

Sworn by the advocate to support the correctness of pleadings made during the occurrence of
the suit in question(chamber summons, notice of motion, originating summons)
 Purpose: A Supporting Affidavit is filed to provide additional evidence, facts, or
arguments in support of a party's case. It aims to strengthen the legal position or claims by
introducing supplementary information or expert opinions.
 Filing: The Supporting Affidavit is typically submitted alongside other relevant
documents, such as an application, a motion, or a petition, to reinforce the party's
arguments.
 Content: The Supporting Affidavit includes detailed information, facts, or expert opinions
that support the party's position. It may also cite legal authorities, statutes, or precedents
to strengthen the legal argument.

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 Supporting Affidavit Our affidavit in support of any interlocutory application originating
summons application that is filed before the court.

Replying Affidavit:
 Purpose: A Replying Affidavit allows a party to respond to the allegations, evidence, or
facts presented in the initial affidavit filed by the opposing party. It provides an
opportunity to address and challenge the claims made in the initial affidavit.
 Filing: The Replying Affidavit is filed in response to the opposing party's affidavit,
usually within a specified time frame as per the court rules or directions.
 Content: The Replying Affidavit typically includes specific paragraphs that respond to the
allegations or evidence presented in the initial affidavit. It may admit or deny the claims
made, provide additional facts, introduce counterarguments, or present contrary evidence.
 When somebody has filed an originating summons, chamber summons or a notice of
motion application against you should respond by a replying affidavit a replaying
affidavit to reply to the application.
 These are responses to applications that have been filed against you

Affidavit of service:
filed by process serves stating how service was carried out

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CRIMINAL LITIGATION

What is the criminal law/ criminal litigation principles?

 Double jeopardy - This prohibits anyone from being prosecuted and convicted twice
for the same crime in account of the same facts and same situation. Section 138 of the
Criminal Procedure Code states that persons convicted or acquitted not to be tried
again for same offence. “A person who has been once tried by a court of competent
jurisdiction for an offence and convicted or acquitted of that offence shall, while the
conviction or acquittal has not been reversed or set aside, not be liable to be tried
again on the same facts for the same offence.”
 Autrefois Acquit and Autrefois Convict (previously acquitted and previously
convicted) - Re Wilson said for autrefois acquit to be established the defendant had
been acquitted of the same offence, it could have been convicted at the previous trial
of the offence which he is now or subsequently charged, and that the two offences are
substantially the same. Exceptions to this is conditional discharge where the
prosecution withdraws a charge, they can later recharge.
 No crime without the law (nullum crimen sine lege) - Whatever you should be
tried should always be prohibited in the law. Christian and others v. The Queen
[2006]. The principle of legality states that officials should act in accordance with
law, and that no one should be punished for an act that does not have a clear legal
basis .Article 50 (2) n ii, Constitution of Kenya (2010) Rights of an accused person
‘not to be convicted for an act or omission that at the time it was committed or
omitted was not—
 An offence in Kenya; or
 A crime under international law’

 Innocent until proven guilty (Presumption of innocence) - Laws in Kenya that

reverse presumption of innocence. But there are laws in Kenya that reverse the
presumption of innocence. This is when the burden and standard of proof shifts to the
defendant. In the criminal case a burden of proof was explained in the case of
Woolmington v DPP. This can be revered in the doctrine of recent possession, for
example if you are found in possession of something stolen or a murder weapon and
you have no explanation for it you can be assumed guilty
 Fair labelling principle - Requires that the description of the offence should match
the wrong done. A key principle is that the label applied to an offender (what he is
charged with) should relate directly to what he has done. Why? Because the symbolic
power of the criminal law requires that it speak clearly about what D has done and
why it is wrong.
 Non retrospectivity of the law - The law is always forward looking and not
backward looking. The law applies as of the time it has been enacted or promulgated.
It cannot be applied retrospectively; it can only be applied prospectively. You cannot
punish for conduct that did not constitute an offences before the law was promulgated.
But exceptions are Laws to do with asset recovery unit is retrospectively can be used
for assets wrongly recovered in the past.
 The Correspondence Principle - This term applies to the idea that the different
elements of a crime must correspond with one another. This is the idea that you
should be responsible for what you do and what you choose/aim to do. One should not

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 be held liable for a more serious criminal outcome than the one envisaged. Moral
luck – random circumstances shouldn’t make you more or less liable than you would
have been.

Explain the legal and evidential burden

In a criminal trial, the burden of proof is divided into two components: the legal burden
and the evidential burden.

The legal burden pertains to proving the existence of a specific matter. For instance, if an
individual (A) is charged with murder, the legal burden falls on the prosecution (typically
the State) to demonstrate to the court, beyond a reasonable doubt, that A is guilty of the
crime. A, as the accused, is not obligated to prove their innocence. The prosecution bears
the responsibility of presenting sufficient evidence to convince the court of A's guilt. If
the prosecution fails to discharge the legal burden, the accused does not need to present a
defense, and the judge may acquit the defendant without calling for their response.

On the other hand, the evidential burden, also known as the standard of proof or
evidential burden of proof, refers to the threshold of evidence required to meet the legal
burden. In a murder trial, the prosecution must present a compelling body of evidence that
surpasses this threshold. It is as if the prosecution were stacking bricks of evidence,
ensuring that the height of the evidence surpasses the required threshold. This standard is
commonly referred to as "beyond a reasonable doubt." It means that the evidence
presented by the prosecution must eliminate any reasonable doubt about the accused's
guilt concerning the murder. If the judge has reasonable doubt about the accused's guilt,
they must acquit the defendant. Reasonable doubt should be more than mere suspicion; it
must be a reasonable uncertainty. Consequently, if the judge has no reasonable doubt,
they are obligated to find the accused guilty.

In election cases, the standard of proof is a combination of "beyond a reasonable doubt"

and the balance of probabilities. The Supreme Court has recognized this as an
intermediate burden of proof, below the threshold of "beyond a reasonable doubt," while
approving the use of the balance of probabilities standard.

These principles illustrate the burden of proof and the standard of proof in criminal cases,
ensuring that the prosecution bears the legal burden of proving guilt beyond a reasonable
doubt, while the evidential burden establishes the threshold of evidence required to meet
the legal burden.

Explain the Murutatetu case and its importance

The cases of Muruatetu & another v Republic (2021) is significant because it challenged the
constitutionality of Section 204 of the Penal Code, which provided for a mandatory death
penalty for individuals convicted of murder in Kenya. Here are the key reasons why these
cases are important:
 Constitutional Arguments: The defendants in the case abandoned their regular legal
arguments and focused solely on constitutional arguments. They argued that the
mandatory death penalty under Section 204 violated the right to life guaranteed under

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 Article 26 of the Kenyan Constitution. This raised the broader issue of whether a
mandatory death sentence is constitutional.
 Violation of Separation of Powers: The defendants argued that the mandatory death
penalty infringed upon the doctrine of separation of powers. They contended that
when judges are compelled by law to sentence a convicted murderer to death, it
interferes with the independence of the judiciary and restricts their discretion in
delivering justice.
 Right to a Fair Trial: Another crucial argument put forth by the defendants was that
the mandatory death penalty impeded the right to a fair trial. They contended that
when the judge's hands are tied by Parliament, preventing them from considering
mitigating factors or alternative punishments, it limits the court's ability to ensure
fairness in sentencing. They emphasized that different circumstances surrounding
murder cases should warrant varying penalties.
 Resentencing and Mitigating Factors: The Supreme Court ruled in favor of the
defendants and declared the mandatory death penalty unconstitutional. As a result, all
individuals sentenced to death must undergo resentencing hearings.
The court outlined the principles that should guide the courts in the resentencing process,
taking into account factors such as the age of the offender, prior criminal record,
remorsefulness, and the possibility of reform and social re-adaptation. These principles
provide guidance for high courts and courts of appeal in ongoing murder trials and
appeals where the mandatory death penalty was imposed under Section 204 of the Penal
Code.

What are the types of jurisdictions

In Kenya, the judiciary is constituted by different courts with varying jurisdictions.

Understanding the jurisdiction of each court is crucial for determining which court has the
authority to hear and decide a particular case. Here is an explanation of the different courts in
Kenya and their jurisdictions:

Supreme Court: The Supreme Court is the highest court in Kenya and has both original and
appellate jurisdiction. Its jurisdiction includes:
 Hearing and determining disputes relating to the election of the President.
 Appellate jurisdiction to hear and determine appeals from the Court of Appeal and
any other court or tribunal as prescribed by national legislation.
 Hearing and determining cases involving the interpretation or application of the
Constitution.
The Supreme Court plays a significant role in safeguarding the constitutionality of laws and
ensuring the proper separation of powers between the judiciary and other branches of
government. Its decisions have binding authority and establish legal precedents.

Court of Appeal: The Court of Appeal is the second-highest court in Kenya and primarily
serves as an appellate court. Its jurisdiction includes:
 Hearing appeals from the High Court and any other court or tribunal as prescribed by
legislation.
 Deciding matters of general public importance involving the interpretation or
application of the Constitution.
The Court of Appeal's decisions are binding upon the lower courts, and it plays a crucial role
in ensuring the consistency and correctness of legal decisions made by the lower courts.

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High Court: The High Court is the principal court of original jurisdiction in Kenya and has
both criminal and civil jurisdiction. Its jurisdiction includes:
 Unlimited original jurisdiction in criminal and civil matters.
 Determining whether a right or fundamental freedom in the Bill of Rights has been
denied, violated, infringed, or threatened.
 Hearing appeals from subordinate courts and any other matters conferred by
legislation.
 Exercising supervisory jurisdiction over subordinate courts and any person, body, or
authority exercising a judicial or quasi-judicial function.
The High Court plays a vital role in protecting fundamental rights and freedoms, ensuring
access to justice, and reviewing the actions of lower courts and public authorities.

Magistrates' Courts: Magistrates' Courts are lower courts in Kenya that handle less serious
criminal and civil matters. They are divided into various classes, including Resident
Magistrate Courts, Senior Resident Magistrate Courts, Principal Magistrate Courts, Senior
Principal Magistrate Courts, and Chief Magistrate Courts. Their criminal jurisdiction is
determined by the Criminal Procedure Code, and their civil jurisdiction is determined by
other written laws.
Magistrates' Courts handle a significant number of cases, including minor offenses, family
matters, land disputes, and contractual disputes. They play a crucial role in providing access
to justice at the grassroots level.

Kadhis' Courts: Kadhis' Courts have jurisdiction over matters of personal status, such as
marriage, divorce, and inheritance, for individuals who profess the Muslim religion. Their
jurisdiction is limited to issues governed by Islamic law and does not extend to criminal or
secular matters.

Court Martial: Court Martial is a specialized military court that has jurisdiction over
members of the Armed Forces and their reserves. Its jurisdiction is limited to cases involving
offenses under military law, such as insubordination, cowardice, fraud, theft, and neglect of
duty. Appeals from Court Martial decisions lie with the High Court, which grants leave
before the appeal is heard.

International Criminal Court (ICC): This is an international court established by the Rome
Statute. The ICC has jurisdiction over individuals accused of genocide, crimes against
humanity, war crimes, and crimes of aggression. Its jurisdiction is based on subject matter,
territorial, and personal jurisdiction as outlined in the Rome Statute. The ICC's jurisdiction
applies when a state party refers a case, the prosecutor initiates proceedings, or the UN
Security Council refers a situation. The ICC plays a crucial role in holding individuals
accountable for serious international crimes.
The International Criminal Court (ICC) has the authority to prosecute individuals accused of
serious international crimes. These crimes include:
 Genocide: This involves the deliberate destruction of a national, ethnic, racial, or
religious group. It can include killing, causing harm or mental suffering, imposing harsh
living conditions, sterilization, or forcibly transferring children from the group.
 Crimes against humanity: These are widespread crimes committed against civilian
populations. Examples include murder, rape, imprisonment, forced disappearance,
enslavement, torture, apartheid, deportation, and sexual slavery.
 War crimes: These crimes violate the Geneva Convention and occur during armed
conflicts. They can involve the use of child soldiers, targeting civilians or prisoners of

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 war for killing or torture, and deliberately attacking hospitals, historical sites, or buildings
dedicated to religion, education, arts, science, or charity.
 Crime of aggression: This refers to the use of armed force by one state against another
sovereign state. However, it's important to note that the ICC can only prosecute this crime
if both states involved are parties to the ICC. For example, the ICC cannot charge Russia
for its aggression against Ukraine as Russia is not a member of the ICC.

What is the jurisdiction of the Supreme Court in Criminal matters?

Has Appellate jurisdiction from the Court Of Appeal on criminal matters on purely points of
law of significant public interest.

What is the jurisdiction of the High Court in criminal matters

jurisdiction of the High Court in Kenya is outlined in the Kenyan Constitution, specifically
under Article 165. In criminal matters, the High Court has the authority to hear and determine
various types of cases, including:
 Trials for offenses punishable by death: The High Court has exclusive jurisdiction to hear
and determine cases involving offenses for which the maximum penalty is death.
 Appeals from subordinate courts: The High Court has appellate jurisdiction over criminal
matters originating from subordinate courts, such as the Magistrates' Courts.
 Constitutional matters: The High Court has jurisdiction to hear and determine
constitutional questions and disputes relating to the interpretation, application, or
enforcement of the Constitution.
 Judicial review: The High Court has jurisdiction to review administrative actions,
decisions, or omissions of state and public bodies, including matters related to criminal
justice administration.
 Violations of fundamental rights and freedoms: The High Court has jurisdiction to
enforce the fundamental rights and freedoms guaranteed by the Constitution and provide
appropriate remedies for their violation.
 Other criminal matters: The High Court may also hear and determine other criminal cases
that are not specifically assigned to another court or tribunal.
 Revisionary jurisdiction

How criminal cases are initiated?

 Criminal cases are initiated by a complaint being lodged. A complaint can be lodged with
the police or the magistrates but the proper way is with the police.
 It will be recorded in the Occurrence Book in the Police Station stating who the
complainant is and what the complaint is.
 The decision to file a case depends on the information in the OB, the police will take a
statement from the complainant, visit the scene of the incident, take notes of any
breakages if any, if it is a murder scene, they will make photographs of the scene and
make arrangements for the body to be examined by a pathologist.
 Once the police decide what kind of offence has been committed, they draw a charge
sheet.

What is the criminal trial process

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 Complaint- Arrest- Charges- Plea- Trial- Judgment- Sentence

 Complaint- The complaint is done through the police process. Person alleging is required
to write statement, produce witnesses, record witness statements, if an offence has been
committed police make the decision to arrest the culprit and take him to court.
 A trial process begins with plea taking whereby the accused person is supposed to take a
plea
 There are different types of pleas like the plea of guilty, Not guilty , Autrefois convict,
Autrefois acquit, pardon and double jeopardy.
 Once the plea has been taken it will be recorded by the court in the same words as those
used by the accused person.
 Once that particular plea has been recorded then the accused person will be asked again to
confirm that the plea that they have given is what they truly meant.
 If it is a plea of not guilty then that means that the matter will proceed to trial. If it is a
plea of guilty then the trial will not proceed and the matter will go straight to sentencing
and then later it will proceed to judgement.
 If the accused has pleaded not guilty then the prosecution will put forward its case first
for the court to establish whether there is a case to answer. The prosecution will call in its
witnesses whereby it will do the examination in chief and the defences council will then
cross examine the prosecution's witnesses coma from there the prosecution will then
again do the re-examination of their witnesses. That is what we call the prosecution
establishing its case.
 If the court finds the accused person does not have a case to answer, then the accused
person will be acquitted immediately.
 If the court finds that their accused has a case to answer, then the burden of proof will be
shifted to the accused person where he will be put on his defence.
 Since the burden of proof has been shifted the accused person will be required to establish
their case, calling their witnesses and the same process of examination in chief, then their
witnesses will be cross examined by the prosecution and then the defence counsel will re-
examine the witnesses.
 Once that is done the court will go back and look at the arguments put forward by the
prosecution and the defence counsel and come up with the judgement.
 Once a court has delivered its judgement it will produce the sentencing. In the sentencing
period there will be mitigation where the victim will be allowed to talk if they're alive and
the accused person will also give statements to state whether they need the court to take
anything into consideration before passing the sentence.
 Once the sentence has been given, the accused person will serve the sentence. The
sentence does not necessarily have to be custodial, it can be probation, it can be to do
something specific based on the magnitude of the charges that have been raised.

What happens after the prosecution closes their case in a criminal trial?

After the prosecution closes its case in a criminal trial, the court will determine whether the
accused person has a case to answer. If the court finds that the accused person has a case to
answer, the trial proceeds to the defense stage, where the defense counsel presents their
defense in response to the charges brought against the accused. On the other hand, if the court
holds that the accused person has no case to answer, they will be acquitted, and the trial will
end.

What happens after the defence closes their case in a criminal trial?

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Once the defense counsel closes their case, the court will assess all the evidence presented by
both the prosecution and the defense. The court will then determine whether the accused
person is guilty or not based on the evidence presented. Following this determination, the
court will hear impact statements from both the victim and the accused person. After
considering all relevant factors, including the probation officer's assessment, the court will
proceed with sentencing. Sentencing may result in detention, imprisonment, community
service, or acquittal, depending on the court's decision and the nature of the case.

arrests

How are arrests defined in Kenya?

The term "arrest" is not specifically defined in the Criminal Procedure Code in Kenya.
However, it refers to the lawful process of apprehending and restraining individuals
suspected of committing criminal offenses, and bringing them before a court to be dealt with
according to the law.

Who can carry out arrests in Kenya?

In Kenya, arrests can be conducted by the following individuals:
 Police officers
 Private individuals (private arrest)
 Magistrates

What are the two types of arrests in Kenya?

The two types of arrests in Kenya are:
 Arrest with a warrant: This occurs when a court order has been obtained to restrain a
person.
 Arrest without a warrant: This occurs when no court order has been obtained.

Explain article 49 of the constitution and the rights of an arrested person?

Article 49 of the Constitution of Kenya outlines the rights of an arrested person. These rights
are crucial safeguards to protect individuals from arbitrary detention and ensure fair treatment
during the arrest and detention process. The rights of an arrested person under Article 49 are
as follows:
 Right to Be Informed Promptly: The arrested person has the right to be informed
promptly and in a language they understand, of the following:
- The reason for their arrest
- The right to remain silent.
- The consequences of not remaining silent.
 Right to Remain Silent:
- The arrested person has the right to remain silent and not to incriminate themselves
during questioning or interrogation.
 Right to Communicate with an Advocate and Others:
- The arrested person has the right to communicate with an advocate (a lawyer) of their
choice. They also have the right to communicate with other persons whose assistance is
necessary, such as family members.
 Right Against Self-Incrimination: The arrested person cannot be compelled to make
any confession or admission that could be used as evidence against them in court. This
right protects them from being forced to say anything incriminating.

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 Right to Separate Detention: The arrested person has the right to be held separately
from persons who are serving a sentence. This separation is to prevent any undue
influence or mistreatment.
 Right to Be Brought Before a Court Promptly:
The arrested person must be brought before a court as soon as reasonably possible, but
not later than twenty-four hours after being arrested. If the twenty-four hours end outside
ordinary court hours or on a non-court day, the person must be brought before the court at
the end of the next court day.
 Right to Be Charged, Informed, or Released: At the first court appearance, the arrested
person has the right:
- To be charged with a specific offense, or
- To be informed of the reason for the detention continuing, or
- To be released from detention.
 Right to Be Released on Bond or Bail: The arrested person has the right to be released
on bond or bail, on reasonable conditions, pending a charge or trial. This right ensures
that they are not held in custody indefinitely without a valid reason.

Additional Note: A person shall not be remanded in custody for an offense punishable by a
fine only or by imprisonment for not more than six months. This means that for less serious
offenses that carry minor penalties, the person should not be held in custody pending their
trial, and other measures like bail or summons may be used instead.

What are the guidelines for making an arrest according to Section 21 of the Criminal
Procedure Code?

According to Section 21 of the Criminal Procedure Code, when making an arrest:

 The arresting person must physically touch or confine the body of the person being
arrested, unless the person voluntarily submits to custody.
 If the person being arrested resists forcefully or tries to evade the arrest, the arresting
person can use all necessary means to effect the arrest.
 The use of force must be reasonable and appropriate for the circumstances and
necessary for apprehending the offender.

What are the provisions for searching a place where the person sought to be arrested is
believed to be, according to Section 22 of the Criminal Procedure Code?

According to Section 22 of the Criminal Procedure Code:

 If a person authorized to arrest or acting under a warrant of arrest has reason to
believe that the person to be arrested is in a certain place, the person in charge of that
place must allow the arresting person or police officer to enter and search for the
individual.
 If access to the place is denied or difficult, the arresting person or police officer may
break an outer window, door, or any entry point after notifying their authority and
purpose.
 If the premises are occupied by individuals not in the public view, such as a Muslim
woman, the arresting person or police officer must inform them that they are free to
leave and provide them with reasonable means to do so.

What is the principle of unnecessary restraint mentioned in Section 24 of the Criminal

Procedure Code?

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Section 24 of the Criminal Procedure Code emphasizes that a person under arrest should
not be subjected to more restraint than necessary to prevent their escape. This means that the
level of restraint applied should be reasonable and proportionate to the circumstances.

How is an arrest defined according to the case of Hussein v Chang Fook [1972] 2 WLR
441?

In the case of Hussein v Chang Fook, an arrest is described as occurring when:

 A police officer explicitly states in certain terms that they are making an arrest.
 An officer uses force to restrain the individual.
 An officer's words or conduct make it clear that they will use force, if necessary, to
prevent the individual from going where they want to go.
 Merely stopping an individual to make inquiries does not constitute an arrest.
 A police officer does not necessarily need to inform someone that they are under arrest as
long as their conduct indicates that an arrest is taking place.
 The person effecting the arrest may touch or confine the body of the person being arrested
unless the person voluntarily submits to custody.
 Reasonable force can be used to effect the arrest if the person being arrested forcibly
resists, with the requirement that the force used is reasonable and necessary.

What is a warrant ?

A warrant, as defined by Oxford Languages, is a document issued by a legal or government

official that grants authority to the police or another body to carry out specific actions related
to the administration of justice, such as making an arrest or searching premises.
In Kenya, the form, contents, and duration of a warrant are governed by Section 102 and
Section 109 of the Criminal Procedure Code. The key provisions regarding warrants are as
follows:
 Every warrant of arrest must be issued by a judge or magistrate and bear the seal of the
court.
 The warrant should briefly state the offense for which the person is charged and provide
the name or description of the person. It also orders the person or persons to whom it is
directed to apprehend the individual named in the warrant and bring them before the court
that issued the warrant or another court with jurisdiction, to answer the mentioned charge
and be dealt with according to the law.
 A warrant remains valid and in force until it is executed (fulfilled by arresting the person)
or cancelled by the court that issued it.

Explain what circumstances an officer can arrets a person without a warrant?

 When the officer has reasonable grounds to suspect that the person has committed a
cognizable offence.
 When the person commits a breach of the peace in the presence of the officer.
 When the person obstructs a police officer in the execution of their duty or attempts to
escape from lawful custody.
 When the officer finds the person in possession of suspected stolen property or
reasonably suspects the person of having committed an offence related to that property.

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 When the officer suspects, based on reasonable grounds, that the person is a deserter from
the armed forces.
 When the officer finds the person during the night in a highway, yard, or other place and
reasonably suspects them of committing or about to commit a felony.
 When the officer finds the person in a street or public place during the hours of darkness
and reasonably suspects them of being there for an illegal or disorderly purpose, or if the
person is unable to give a satisfactory account of themselves.
 When the officer suspects, based on reasonable grounds, that the person has been
involved in an act committed outside Kenya, which, if committed in Kenya, would be
punishable as an offence and for which extradition may be sought.
 When the officer finds the person in possession of housebreaking implements without
lawful excuse.
 When a released convict commits a breach of any provision prescribed by Section 344 or
a rule made under it.
 When there is a reasonable cause to believe that a warrant of arrest has been issued for the
person.

Can a private person make an arrest without a warrant?

Yes, under Section 34 of the CPC, a private person may arrest another person without a
warrant in the following circumstances:
 When the person commits a cognizable offence in the view of the private person.
 When the private person reasonably suspects the person of having committed a
felony.
 When the person is found committing an offence involving injury to property, and the
arrest is made by the owner of the property, their servants, or persons authorized by
the owner.

What are the legal principles governing arrests without warrants?

 The person making the arrest, whether a police officer or a private person, must have
reasonable grounds or reasonable suspicion to believe that the person being arrested
has committed an offence.
 Arrests should not be used as a tool for harassment or intimidation but should be
based on objective grounds and reasonable suspicion.
 The rights of the arrested person, as enshrined in Article 49 of the Constitution and
Article 50 for detained persons, must be respected.
 If a person is arrested without a warrant, they should be taken without unnecessary
delay before a magistrate or an officer in charge of a police station, as stated in
Section 33 of the CPC.
 Officers in charge of police stations are required to report to the nearest magistrate the
cases of all persons arrested without a warrant within the limits of their respective
stations, as per Section 37 of the CPC.

What makes an arrest without a warrant unlawful?

An arrest without a warrant may be considered unlawful if:
 There are no reasonable grounds or reasonable suspicion for the arrest.
 The arrest is carried out in violation of the rights of the arrested person, as protected
under the Constitution.
 Unreasonable force is used in effecting the arrest, resulting in harm or death.

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  The person making the arrest, whether a police officer or a private person, exceeds
their legal authority or acts outside the scope of the law.
Note: The answers provided are based on the information provided in the context of Kenyan
legislation and should not be considered as legal advice. For specific legal advice, it is
recommended to consult with a qualified legal professional.

What is an arrest warrant?

An arrest warrant is a written order issued by a magistrate to apprehend a person who has
failed to appear in court or who has jumped bail or absconded. It can also be issued for
witnesses who fail to appear in court to give evidence.

What is the process of obtaining a warrant of arrest from court?

The process of obtaining a warrant of arrest from court involves the following steps:
 A complaint based on reasonable belief and probable cause must be made before a
magistrate.
 The complaint should be supported by factual information, not mere speculation.
 The prosecutor or arresting officer seeking the arrest warrant must sign an affidavit
affirming the factual and true information.
 The magistrate may issue a summons or a warrant based on the complaint or charge.
 If a summons is issued and the accused person fails to appear, a warrant may be
obtained to secure their arrest.

What are the requirements for a warrant of arrest?

The requirements for a warrant of arrest include:

 Magistrate's signature and court seal.
 Name and description of the accused person.
 Specification of the crime committed and the law that was breached.
 Command to apprehend the person and bring them before the issuing court.

Who can a warrant of arrest be directed to?

A warrant of arrest can be directed to one or more police officers or persons, as specified in
Section 104 of the Criminal Procedure Code. It can also be directed to a landholder,
farmer, or manager of land within the local jurisdiction to apprehend an escaped convict or an
accused person who has eluded pursuit, as mentioned in section 105 of the Criminal
Procedure Code.

What documentation is required to be filed in court for a warrant of arrest?

The documentation required to obtain a warrant of arrest includes:

 A written application, usually filed as a miscellaneous application or a certificate of
urgency.
 A sworn affidavit supporting the application, providing factual information
establishing probable cause for the crime and the involvement of the named person.
 Specific and descriptive information to identify the person accurately.
 Judicial discretion to ensure the necessity of the warrant, especially for indictable
offences or those punishable with imprisonment.

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What is the principle of legality regarding a warrant of arrest?

The principle of legality states that a warrant of arrest can only be issued when an accused
person absconds court during the hearing stage or in certain circumstances before the
commencement of a prosecution. Judicial discretion is exercised in the issuance of warrants,
and they should be issued only for indictable offences or those punishable with
imprisonment.

How long does a warrant of arrest remain in effect?

A warrant of arrest remains in effect until it has been executed, lifted, or cancelled by the
officer of the law or the court that issued it, according to section 102(3) of the Criminal
Procedure Code.
Q3: Can a warrant of arrest be transferred to another officer? A3: Yes, under Section 106 of
the Criminal Procedure Code, a warrant of arrest directed at a police officer can be
transferred for execution to another officer. The transferring officer needs to endorse the
warrant, assigning or transferring it to the next officer, especially when the officer is outside
the jurisdiction of arrest.

What are the requirements for executing a warrant of arrest?

The officer or person executing a warrant of arrest has a duty to notify the subject of the
substance of the warrant and show them the warrant upon request. The subject should then be
arrested and expeditiously brought before the court to which they are required to be
produced.
Q5: Can a warrant of arrest be executed outside the jurisdiction of the issuing court? A5: Yes,
under Section 109 of the Criminal Procedure Code, a warrant of arrest may be executed at
any place in Kenya. If it needs to be executed outside the jurisdiction of the issuing court, the
court may forward it to a magistrate in whose jurisdiction it is to be executed, who will then
endorse it and execute it as if they had issued it themselves.

What happens in case of a defect or irregularity in a warrant of arrest?

According to Section 113 of the Criminal Procedure Code, an irregularity or defect in a

warrant or any variation between the warrant and the written complaint or information does
not affect the validity of the proceedings. However, if the variance misleads or deceives the
accused, the court may adjourn the hearing and either remand the accused or admit them to
bail.

How does the principle of legality relate to the mode of arrest?

The mode of arrest must have a nexus to the crime or a sound link connecting the person to
the crime. In the case of James Maina Njuguna v R (2008), the court rejected an appeal
arguing that the mode of arrest had no connection to the crime, stating that the evidence
presented was consistent with the warrant.

What is the prohibition regarding the use of violence during arrest?

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Under Article 29(c) of the Constitution, the use of violence during arrest is prohibited, both
by public and private sources, when exercising the power of arrest.

What are Miranda rights, and how are they incorporated into Kenyan law?
Miranda rights, derived from the case of Miranda v. Arizona, refer to the rights of arrested
persons, including the right to remain silent and the right to an attorney. In Kenya, these
rights are protected under Article 49 of the Constitution, which guarantees the rights of
arrested persons.

What is the legal procedure that should be followed when a person is arrested in
Kenya?

According to the National Police Service Standing Orders, when a person is arrested with or
without a warrant, they should be searched, placed in cells, and relevant entries made in the
Occurrence Book and Cells Register. The arrested person should be brought before court as
soon as possible, within 24 hours of arrest, or by the end of the next working day if the 24-
hour period lapses after court hours. If the person is wanted at another police station, an
apprehension report should be submitted to a magistrate, and the person may be remanded for
transfer. The arrested person's full particulars should be entered in police records.

What rights do detained persons have while in custody?

Detained persons have the right to communicate with and receive visits from family
members, the right to inform their family of the arrest and place of detention, access to
medical assistance when required, and the right to lodge complaints about ill-treatment or
seek compensation. If a close relative inquires about a detained person's whereabouts, they
should be allowed to communicate with the person in custody.

What is habeas corpus, and how is it protected under Kenyan law?

Habeas corpus is a legal action that allows individuals held in custody to challenge the
lawfulness of their detention. In Kenya, the right to habeas corpus is protected under Article
25(d) of the Constitution and Section 389 of the Criminal Procedure Code. The High
Court has jurisdiction for habeas corpus cases.

What is the requirement regarding bringing arrested persons before court without
delay?

Section 10 of the Criminal Procedure Code and Article 49(1)(A) of the Constitution state
that arrested persons must be brought before court without delay. Inordinate delays without
reasonable explanation may violate the rights of the accused. However, recent court decisions
have emphasized that undue delays should not subvert the judicial process or law
enforcement efforts.

What powers do Magistrate Courts have regarding the violation of human rights?

Magistrate Courts have jurisdiction to hear and determine applications for redress of a denial,
violation, or infringement of rights or fundamental freedoms in the Bill of Rights, specifically
related to freedom from torture, cruel treatment, and slavery. However, Magistrate Courts do

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not have the power to award damages or compensation for violations of fundamental rights
and freedoms.

What is the procedure for applying for an extension of time for holding a suspect in
custody?

Under the Securities Laws Amendment Act 2014, if a police officer has reasonable grounds
to believe that the continued detention of a suspect is necessary, they must produce the
suspect before court and apply in writing for an extension of time. The application should be
supported by an affidavit specifying the nature of the offence, evidence, inquiries made, and
reasons necessitating the continued detention. The court may release the suspect
unconditionally, subject to conditions, or order remand based on compelling reasons.

What is the maximum period of remand in custody?

According to the Securities Laws Amendment Act 2014, the period of remand in custody
should not exceed 30 days. An additional extension may be granted, but the total period of
remand should not exceed 90 days.

Can a warrant of arrest be issued twice?

The Criminal Procedure Code does not specifically address this issue, and no local decision
on the matter has been found. However, in the English case of Dickenson v Brown [1974],
the court expressed doubts about the legality of a second arrest based on a warrant that had
already been issued and executed. Once an arrest warrant has been executed, it ceases to be
effective, and it cannot be used to arrest someone again.

What rights do arrested children have while in police custody?

According to Article 53(1)(f) of the Constitution of Kenya, every child has the right not to
be detained, except as a measure of last resort. When detained, they should be held for the
shortest appropriate period of time and in conditions that consider the child's sex and age.
Furthermore, they should be held separately from adults. These provisions aim to protect the
rights and well-being of arrested children in police custody.

What are the Rights of an arrested person under Article 49 of the Constitution of Kenya
2010?
 The right to be informed promptly, in a language that the person understands, of the
reason for the arrest.
 The right to remain silent and not be compelled to make any confession or admission
that could be used in evidence against the person.
 The right to communicate with an advocate and other persons whose assistance is
necessary.
 The right not to be held with persons who are serving a sentence.
 The right to be brought before a court as soon as reasonably possible, but not later
than 24 hours after being arrested. If the 24 hours end outside ordinary court hours or
on a non-court day, the person should be presented in court on the next court day.
 The right to be informed of the charges against them at the first court appearance or to
be released on bond or bail, on reasonable conditions, pending a charge or trial.

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What are the Rights of a Fair hearing under Article 50 of the Constitution of Kenya
2010?
 The right to have any dispute that can be resolved by the application of law decided in
a fair and public hearing before a court or an independent and impartial tribunal.
 The right of an accused person to a fair trial, which includes being presumed innocent
until proven guilty, informed of the charge in sufficient detail to respond to it, and
having adequate time and facilities to prepare a defense.
 The right to a public trial before a court established under the Constitution.
 The right to have the trial begin and conclude without unreasonable delay.
 The right to be present during the trial unless the accused person's conduct makes it
impossible for the trial to proceed.
 The right to choose and be represented by an advocate, and to be informed of this
right promptly.
 The right to remain silent and not to testify during the proceedings.
 The right to be informed in advance of the evidence the prosecution intends to rely on,
and to have reasonable access to that evidence.
 The right to adduce and challenge evidence and to refuse to give self-incriminating
evidence.
 The right to the assistance of an interpreter if the accused person cannot understand
the language used at the trial.
 The right not to be convicted for an act or omission that was not an offense in Kenya
or a crime under international law at the time it was committed or omitted.
 The right to appeal to, or apply for review by, a higher court as prescribed by law if
convicted.

What are the rights of persons detained, held in custody, or imprisoned under Article
51 of the Constitution of Kenya 2010?
 A person who is detained, held in custody, or imprisoned retains all the rights and
fundamental freedoms in the Bill of Rights, except to the extent that any particular
right or fundamental freedom is clearly incompatible with the fact that the person is
detained, held in custody, or imprisoned.
 A person who is detained or held in custody is entitled to petition for an order of
habeas corpus, which ensures they are brought before a court of law within 24 hours
of their arrest to protect them from unlawful or indefinite imprisonment.
 Parliament shall enact legislation that provides for the humane treatment of persons
detained, held in custody, or imprisoned and takes into account relevant international
human rights instruments.

Identification Parades

What is an ID parade?

An ID parade is a police identification procedure in which a criminal suspect and other

physically similar persons are shown to the victim or a witness to determine whether the
suspect can be identified as the perpetrator of the crime. It allows eyewitnesses to test their
ability to accurately identify the suspect.

What is the purpose of an ID parade?

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The purpose of an ID parade is multi-fold. Firstly, it boosts the probative value of evidence
related to the identity of a suspect. By allowing the accused to be seen among a group of
individuals who share similar resemblances, the identification becomes more reliable.
Secondly, it serves to test the reliability of the victim's or witness' prior statements about the
suspect's identity. It allows the police to assess the truthfulness of the witness and the
reliability of their statements. Lastly, an ID parade upholds the principles of due process and
fair trial, ensuring that the procedure is conducted according to strict guidelines.

When are ID parades held?

ID parades are held under the following circumstances: when there is sufficient information
to justify the arrest of a particular person suspected of involvement in an offense, when an
eyewitness has identified or may be able to identify that person, and when there is a dispute
or anticipated dispute regarding the suspect's identity in the commission of the offense.

When can ID parades not be conducted?

ID parades should not be conducted when the suspect does not give consent, it is
impracticable to assemble individuals who resemble the suspect, the eyewitness cannot
identify the offender, or the case involves the pure recognition of someone well-known to the
witness.

How would you characterize ID parade evidence?

ID parade evidence is both oral and documentary. It involves written submissions from
someone who claims to have positively identified a person. Additionally, the officer
conducting the parade writes a report on how it was conducted and includes remarks made by
the accused person when they were identified.

What legal framework governs ID parades?

The legal framework for ID parades includes the Constitution, which guarantees the accused
the right to a fair trial, and the Evidence Act, which sets out rules for oral evidence.
Additionally, the National Police Service Act provides guidelines for the general control and
direction of the police, and the Police Force Standing Orders of 1984 outline the procedure
for conducting ID parades.

What is the procedure for conducting ID parades?

THE NATIONAL POLICE SERVICE STANDING ORDERS, 2017

- The police conducing the ID parade must make sure the accused is mentally and
physically able to be present for the parade.
- Form P156 make sure the details of the ID parade must be filled. It is called report of an
Identification Parade. Time ID parade will be conducted, where venue (police station or a
field) , case number, details of the accused number, officer in charge of the parade, the
charges that the accused person is facing, witnesses coming to identify the accused
person)
- The procedure for conducting ID parades includes informing the suspect of the reasons
for the parade and allowing them to have a solicitor or friend present.
- Results of the ID must be filled after it is conducted.

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 Conditions of conducting ID parades are met.

- Suspect should say whether they want someone else present or not, they may not trust the
police officer and want someone else.
- Witnesses should not see the accused before the parade to avoid bias.
- The accused should be placed among individuals who resemble them in age, height,
general appearance, and class of life.
- Steps should be taken to conceal any disfigurements of the accused.
- The accused person can take any position they want to take, they may change positions
after every witness if they would like.
- The investigating officer should not conduct the parade, it should be an independent
police officer attending the ID parade.
- Witnesses should not communicate with each other, and the parade should be conducted
with fairness.
- The witness should identify the person without touching them, and their comments should
be recorded.
- The parade should be documented in a report.
- Once the ID parade has been concluded they sign the report to make sure they are
satisfied, if they are not satisfied.
- Depending on the response given, another ID will be conduced or the court will just adapt
it depending on the recommendation of the police.

How are identification parades conducted?

 Legal framework: Identification parades in Kenya are conducted in accordance with the
provisions of the Evidence Act (Cap. 80) and the Criminal Procedure Code (Cap.
75).Police standing orders
 Purpose: Identification parades are typically conducted to allow witnesses or victims to
identify suspects involved in criminal activities. The main objective is to establish
whether the suspect can be identified by the witness.
 Organization: Identification parades are usually organized and supervised by the police,
under the direction of an officer in charge.
 Lineup composition: The lineup, also known as a parade, consists of a group of people,
including the suspect and several other individuals (known as fillers) who resemble the
suspect in certain aspects such as age, build, and appearance. The fillers should closely
resemble the suspect to avoid undue suggestion.
 Number of fillers: The lineup generally consists of at least seven fillers, making a total of
eight individuals including the suspect. This number may vary depending on the
circumstances and availability of suitable fillers.
 Instructions to witnesses: Before the lineup, witnesses are usually given instructions on
how to conduct the identification process. They may be informed that the suspect may or
may not be present in the lineup and that the investigation will continue regardless of
their identification.
 Conducting the lineup: The lineup is usually conducted in a manner that prevents the
suspect from standing out or drawing attention. The individuals in the lineup should be
arranged randomly, and the suspect should not be placed in a position of prominence or
singled out in any way.

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 Recording: It is important to document the identification parade through video or
photographic means. This helps to maintain an accurate record of the process and may be
useful in subsequent legal proceedings.
 Legal representation: The suspect has the right to legal representation during the
identification parade, and their attorney may be present to observe the process.
 Documentation: A report is typically prepared after the identification parade, detailing the
participants, the process followed, and any identification made by witnesses.

What are the rules to be followed in an identification parade?

So, the police force standing order is basically what provides for, how identification parades
should be conducted and the rules.

a) Identification parades should basically be conducted by a senior officer who's able to,
you know, supervise the whole procedure and make sure it is done in accordance with
the police force standing orders.
b) Identification parades should be conducted amongst, accused persons who have
similar characteristics in their physical appearances so that the complainant can be
able to try and identify them in the midst of similar characteristics.
c) Then, it should be done in broad daylight unless, they rarely encourage identification
parades to be done in darkness. But essentially, they should be conducted in broad
daylight whereby the complainant can be able to identify the accused person that we
have basically instituted a complaint respect off.
d) The complainant signed the report that is prepared immediately the identification
parade has been concluded. They need to confirm the identification they have made
and that they actually participated in the identification parade process.
e) Where the cases are very serious, like sexual offenses, more protection should be
given to accused persons to make sure that they are hidden or they can be able to
identify the accused person from a particular area that the accused person will not be
able to see them. So, that protection is very important for such types of cases.
f) The accused person is basically informed of the time, the venue, the place, so that
don't later come on and say that they were not informed that an identification parade
would be conducted. So, they're supposed to be told, 'You're required at this particular
time on this field and come during that time,' But they should come after the other
people who are similar to them have been arraigned or have been organized in that
particular field.
g) Make sure the person who's identifying the accused person remains unknown. Even if
the case is not sensitive, they should make sure that they are anonymous and they
cannot be seen by the accused person because, this will prejudice the safety of the
complainant who basically raised the complaint.
h) Only authorized persons will take place in identification parades. This is not a public
thing where members of the public should participate. Identification parade should be
limited to only the police officer conducting it, the supervising officer who
supervising the process, the witness who's coming to identify the accused person, and
the accused person and other people with similar characteristics.
i) The people who have the similar characteristics that have been brought to the
identification parades should make sure that they don't communicate with each other

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 during the conduct of the identification parades, and they're separated in a way that
the witness will be able to have sufficient time to look at them separately.
j) Then, witnesses should similarly not be allowed to communicate. So, if they're
passing through a particular gate when identifying the accused person, they should
pass through a separate gate so that they don't meet until their own identification
parade is going to be conducted.
k) The accused should be allowed to different positions during the conduct of their
identification parade. You see, they're also participating in a way that we confuse the
witness. Appeal to make sure that the witness, you know, has not liaised with their
police officer to choose him, so he can take any particular position he wants to take
during the identification parade.

How has Kenyan jurisprudence addressed issues related to identification parades?

Kenyan jurisprudence has highlighted instances where identification parades were not
conducted with scrupulous fairness, leading to biased outcomes and miscarriages of justice.
The courts have emphasized the importance of adhering to the police force standing orders
and the right to a fair trial under Article 50(2) of the Constitution. Cases such as Republic v
Mwango, Joshua Mutiso Kisese v Republic, Jackson Oluoch and another v Republic, and
Joseph Kariuki v R have quashed convictions due to improper conduct of identification
parades.

What are the key requirements for conducting an identification parade in Kenya?

The key requirements for conducting an identification parade in Kenya include obtaining the
consent of the accused, allowing the accused to have an advocate or friend present, ensuring
the parade includes individuals with similar general appearance, informing the witness that
the suspect may or may not be present, and conducting the parade with scrupulous fairness.
The parade should adhere to the guidelines outlined in the Police Force Standing Orders and
the Constitution's right to a fair trial.

How does Kenyan jurisprudence evaluate identification parade evidence?

Kenyan courts evaluate identification parade evidence by considering the credibility of

witnesses, the veracity of the evidence, and its consistency with other evidence in the case.
The court aims to determine whether the accused was positively identified without mistaken
identity and whether they committed the offense charged. The courts may rely on the
guidelines outlined in R v Turnbull to evaluate contested identification evidence and ensure
the fairness of identification parades.

Is an identification parade considered a public document in Kenya?

Yes, an identification parade is considered a public document in Kenya. It falls under the
category of documents forming the acts or records of the acts of public officers, legislative,
judicial, or executive, as specified in Section 79 of the Evidence Act. As such, it is produced
by a public authority, the national police, and is considered a public document.

What is dock identification?

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Dock identification is when a witness points out the accused person standing at the dock and
identifies them as the culprit who committed the crime. It is a common form of identification,
particularly when there is no opportunity to conduct an identification parade.

How has Kenyan jurisprudence evolved regarding the admissibility of dock

identification evidence?

Initially, dock identification was considered generally worthless, and courts required a
properly conducted identification parade before placing much reliance on dock identification.
However, in cases such as Mururi v Republic and Patrick Kimanthi v Republic, the courts
have moved away from this stance. They now allow convictions based on dock identification
if the facts, circumstances, and evidence are true, but the courts also warn of the potential
danger of mistaken identity.

What is the difference between dock identification and identification parades in Kenya?

Dock identification involves a witness pointing out the accused at the dock, while
identification parades involve presenting a line-up of individuals to the witness for
identification. Dock identification is generally considered of lesser value without
corroboration, whereas identification parades carry more weight and credibility in court.

What are some proposed reforms to improve the credibility of identification parade
evidence in Kenya?

Some proposed reforms include using photographs instead of actual persons, implementing a
video identification parade electronic recording system (Viper system), abolishing the
requirement for the witness to physically touch the suspect, and adopting the sequential
system of parades where individuals are presented to the witness individually and randomly.
These reforms aim to enhance the accuracy and credibility of identification parade evidence.

How does the prosecution present identification parade evidence in court?

The identification parade evidence, in the form of a filled-out form by the police officer in
charge of the identification parade, is presented in court by the police officer as a witness.
The officer provides an account of how the identification process was conducted, who was
present in the identification parade, and any recommendations made during the process.

Except for identification parade, how else can an accused person be identified,
 CCTV Footage: Surveillance cameras or CCTV footage from the crime scene or nearby
locations may capture images or videos of the accused person, which can be used as
evidence for identification.
 Forensic Evidence: Forensic evidence, such as fingerprints, DNA samples, or footprints,
can be collected from the crime scene and compared to the accused person's records for
identification purposes.
 Electronic or Digital Evidence: In cases involving cybercrimes or electronic
communication, digital evidence like emails, chat logs, or phone records may help in
identifying the accused person.

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Electronic evidence

How is electronic/digital evidence defined in Kenyan laws?

Electronic/digital evidence is not yet defined in Kenyan laws. However, it refers to data
manipulated, stored, or communicated by any man-made device, computer or computer
system, or transmitted over a communication system, which has the potential to make the
factual account of either party more probable than it would be without the evidence.

What are the three categories of electronic evidence?

The three categories of electronic evidence are:

1. Data from analog or digital devices, such as computers or communication systems.
2. Open-ended computers or communication systems, including servers and networks.
3. Embedded types of devices that have computer functionalities but are not full-fledged
computers.

Preparation Of Files For Trial

What informs the decision by the DPP to charge or not to charge a suspect

How is that decision made at an official level in the office of the Director of Public
Prosecution?

The decision to charge or not to charge a suspect is based on the powers of the Director of
Public Prosecution (DPP) as outlined in Article 157 of the Constitution. The DPP has the
authority to institute and undertake criminal proceedings, take over and continue criminal
proceedings, or discontinue criminal prosecutions. The DPP can also direct investigative
agencies to investigate any criminal conduct. The decision is made by reviewing the
investigative files, ensuring sufficient evidence exists, considering the public interest, and
evaluating the elements of the offense, admissibility, reliability, credibility, availability, and
impact or harm to the victim or community. The DPP may also provide guidance to
investigators and offer legal advice during and after the investigation process.

What are the key guidelines and factors considered in the decision to charge, as outlined
in the Decision to Charge (DTC) policy document?

The key guidelines in the Decision to Charge (DTC) policy document include:
 The decision to charge must be guided by sound rules and principles, considering the
intrusive nature of charging on the liberty, life, and property of an individual.
 The decision to charge recognizes alternatives to prosecution, such as plea bargaining,
diversion, reconciliation, discontinuance, asset forfeiture, and confiscation.
 The decision to charge should be in the interest of justice, public interest, and to avoid
the abuse of legal process.
 Objectivity is crucial, and personal, national, ethnic, religious, or other considerations
should not influence the decision.
 The right person should be prosecuted for the right offense, applying the law correctly
and ensuring the submission of relevant evidence and disclosure obligations.

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  Consideration should be given to persons protected under the Privileges and
Immunities Act.
 If in doubt, a prosecutor should seek guidance from a supervisor.
 All decisions on whether or not to prosecute must be recorded on file.

What are the two tests involved in the Decision to Charge (DTC)?

The two tests involved in the Decision to Charge (DTC) are the Evidential Test and the
Public Interest Test.
 Evidential Test: This test requires sufficient evidence that assures a realistic chance of
conviction. The prosecutor must identify the elements of the offense and assess the
relevance, admissibility, reliability, credibility, and availability of the evidence. If
there is sufficient evidence meeting these criteria, the first stage of the test is satisfied.
 Public Interest Test: This test considers the public interest in prosecuting the case.
Factors such as the seriousness of the offense, culpability of the suspect, impact or
harm to the victim or community, status of the victim, proportionate response, and
other legitimate ways of achieving criminal accountability are taken into account. If it
is determined that prosecuting the case is in the public interest, the second stage of the
test is satisfied.

What are the minimum requirements of a file for the Decision to Charge (DTC)?

The minimum requirements for a file in the Decision to Charge (DTC) include:
 Initial report by the investigator
 Investigation diary
 Correspondences, if applicable
 Brief summary of the facts of the case
 Key witness statements, including the complainant's statement addressing the
necessary elements of the crime and the identity of the suspect
 Statements of all investigating officers assigned to the case
 Expert reports or exhibit memos, if available
 Relevant documentary evidence, such as photographs or financial statements
 Inventory of evidence
 Suspect statement or cautionary statement under inquiry
 Proposed charges
 Background information and statement of age of the accused, among other necessary
documentation.

What is the threshold test in the Decision to Charge (DTC) and its requirements?

The threshold test is an alternative test within the Decision to Charge (DTC) framework, but
its constitutionality is questionable. It involves charging a suspect on prima facie evidence
and the reasonable prospect of obtaining additional evidence. The requirements for the
threshold test are:
 Reasonable grounds to believe that the suspect has committed the offense
 Further evidence can be obtained to provide a realistic prospect of conviction
 The seriousness or circumstances of the case make immediate prosecution necessary
 It is in the public interest to charge the suspect The threshold test is to be applied
sparingly and only in serious offenses after consultation with the immediate
supervisor.

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How does the Decision to Charge (DTC) policy document innovate prosecutor-guided
investigations?

The Decision to Charge (DTC) policy document introduces prosecutor-guided investigations,

allowing prosecutors to provide guidance to the police during the investigation process. If
there is insufficient evidence in the file, instead of rejecting the case, prosecutors can guide
the investigative agencies on specific areas to conduct further investigations. This innovation
recognizes that police officers may not have legal expertise and ensures that investigations
are conducted more effectively and in accordance with legal requirements. The prosecutor's
role remains impartial and objective while cooperating with the investigators.

Preparation Of Files For Trial

(i) Contents Of The Police/Prosecution File

What is the purpose of a police/prosecution file in criminal cases?

The purpose of a police/prosecution file in criminal cases is to document and compile all the
necessary information, evidence, and documentation related to the case. It serves as a
comprehensive record that supports the decision-making process for the police and
prosecution in determining whether to charge an individual with an offense and to present the
case in court.

What are the contents of a custody record in a police file?

The contents of a custody record in a police/prosecution file include:

- Reason for the suspect's arrest
- Place, time, and date of arrest
- Time of the suspect's arrival at the police station and their condition upon arrival.
- Comments made by the suspect upon being informed of detention.
- Name of the officer opening the custody record.
- Personal details of the accused person, such as names, addresses, age, occupation, and
ethnic/racial group.
- Name and rank of the arresting officer and officer in charge of the investigations.
- Rights read to the detained person and the presence of an interpreter if necessary.

What are the contents of a custody record in a prosecution file?

 Initial report: This form is the first document in the prosecution file and contains the
initial report or complaint filed by the victim or a law enforcement agency. It outlines the
basic details of the alleged crime, including the date, time, location, and a brief
description of the incident.
 Documentary evidence: list of exhibits and witnesses, documentary exhibits: This form
includes a comprehensive list of all the documentary evidence that will be presented
during the trial. It may include items such as photographs, videos, documents, or any
other tangible evidence. Additionally, it may also contain a list of witnesses who will
testify and provide their statements during the trial.
 Accused's records - his statements: This form contains any records or statements made
by the accused during the investigation or interrogation process. It may include written or
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 recorded statements, interviews, or confessions made by the accused, which can be used
as evidence in the trial.
 Investigation diaries: Investigation diaries are detailed records maintained by law
enforcement agencies documenting the progress and actions taken during the
investigation. These diaries serve as a chronological account of the investigative
activities, including interviews conducted, evidence collected, and any other relevant
information.
 Experts reports: In some cases, expert witnesses may be called upon to provide
specialized knowledge or analysis related to the case. Their reports, findings, and
opinions are documented in this form. Experts can include forensic scientists, medical
professionals, or any other professionals with expertise relevant to the case.
 Witness statements: This form contains statements provided by witnesses who have
relevant information about the alleged crime. Witness statements are typically recorded or
transcribed interviews conducted by law enforcement officers or legal professionals.
These statements serve as testimonies during the trial.
 Copies of the charge sheet: The charge sheet is a formal document that outlines the
specific charges filed against the accused. It contains details of the offense, the relevant
laws violated, and any other necessary information. Copies of the charge sheet are
included in the prosecution file for reference and documentation.
 Covering report: The covering report is a summary document that provides an overview
of the case. It may include a brief description of the crime, the evidence collected, and the
legal basis for the prosecution. The covering report helps to provide context and
understanding of the case to those reviewing the prosecution file.
 Correspondences: This form includes any relevant correspondence related to the case,
such as letters, emails, or memos exchanged between the prosecution, defense, law
enforcement agencies, or other parties involved in the legal process. These
correspondences help document important communications and provide a record of any
relevant discussions or agreements.

What can be found in Subfile B (Sketch Plan and Documentary Exhibits) of a

police/prosecution file?

Subfile B of a police/prosecution file contains photographs, sketches, plans, and other

materials related to the scene of the crime. It also includes copies of documentary exhibits.
These exhibits are marked as B(1), B(2), and so on. Photographs are typically mounted on
foolscaps or placed in envelopes with clear listings on the outside.

What is included in Subfile C (Expert Reports) of a police/prosecution file?

Subfile C of a police/prosecution file contains copies of expert reports related to the case.
This may include reports such as postmortem, ballistic reports, fingerprints, handwriting
analysis, and other expert reports. Each report is marked as C(1), C(2), and so forth. If the
contents of the expert reports are technical, they should be supported by a simplified
explanation.

What can be found in Subfile D (Statements of Prosecution Witnesses) of a

police/prosecution file?

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Subfile D of a police/prosecution file contains statements of prosecution witnesses. It
includes statements from the arresting officer, investigating officer, and material witnesses.
This subfile also houses the identification parade form used during the case.

What is included in Subfile E (Charge and Cautionary Statement, Inquiry Statements

of Accused Person) of a police/prosecution file?

Subfile E of a police/prosecution file includes the charge, cautionary statement, inquiry

statements, and statements of the accused person. Confessions or admissions made by the
accused person will be placed in this subfile. Section 99 of the Criminal Law (Amendment)
Act, 2003 repealed and inserted Section 25 of the Evidence Act, which regulates the
admissibility of confessions.

What can be found in Subfile F (Investigation Diaries) of a police/prosecution file?

Subfile F of a police/prosecution file contains investigation diaries. These diaries document

the full and accurate account of the times, dates, places visited, and actions taken by the
police officers conducting the investigation. It provides a detailed record of the investigative
process.

What is included in Subfile G (Copies of Charge Sheet and Related Documents) of a

police/prosecution file?

Subfile G of a police/prosecution file contains copies of the charge sheet and related
documents. The Director of Public Prosecutions (DPP) drafts the charges, and the charge
sheet is prepared by the prosecutor. This subfile holds the original charges and any
subsequent amendments made during the trial.

What can be found in Subfile H (Accused's Previous Records, List of Exhibits, and List
of Witnesses) of a police/prosecution file?

Subfile H of a police/prosecution file includes the accused person's previous criminal records,
a list of exhibits, and a list of witnesses. It also contains the fingerprint form of the accused,
the accused person's personal effects, and an inventory of items recovered that are related to
the case or deemed to be stolen items.

What is included in Subfile I (Covering Report) of a police/prosecution file?

Subfile I of a police/prosecution file contains a covering report. This report is prepared by the
officer in charge of the investigations and provides a detailed chronology of events and the
conduct of the investigation leading up to the decision to charge the suspect and bring them to
court.

What can be found in Subfile J (Correspondence or Minute Sheet) of a

police/prosecution file?

Subfile J of a police/prosecution file contains correspondence or minute sheets. It includes the

communication between police personnel, the prosecution, and other stakeholders involved in
the case. This subfile documents requests for advice and discussions related to the case.

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What is the legal framework guiding the preparation of a police/prosecution file?

The legal framework guiding the preparation of a police/prosecution file includes:

 Constitution of Kenya (2010)
 Criminal Procedure Code
 Office of the Director of Public Prosecutions Act of Kenya 2013
 Evidence Act
 National Police Service Standing Orders

What are the minimum requirements of a file under the two-stage test in the
preparation of a police/prosecution file?

The minimum requirements of a file under the two-stage test in the preparation of a
police/prosecution file include:
 Initial report
 Investigation diary
 Correspondences
 Brief summary of the facts of the case
 Key witness statements
 Statements of investigating officers
 Expert reports or exhibit memos
 Confirmation of the accused person's age (where appropriate)
 Any exculpatory evidence
 Proposed charge(s)

What is the purpose of the threshold test in the preparation of a police/prosecution file?

The purpose of the threshold test in the preparation of a police/prosecution file is to

determine whether there are reasonable grounds to believe that the suspect has committed the
offense and whether further evidence can be obtained to provide a realistic prospect of
conviction. It is applied in the early stages of serious cases such as sexual and gender-based
violence, murder, election violence, and counterterrorism.

What are some ethical and professional issues to consider in the preparation of a
police/prosecution file?
Some ethical and professional issues to consider in the preparation of a police/prosecution
file include:
 Upholding the mandate of the Constitution, ensuring equal treatment and access to
justice for all individuals.
 Avoiding conflicts of interest and ensuring impartiality in decision-making.
 Avoiding frivolous arguments and ensuring that claims are based on legitimate legal
and factual grounds.
 Ensuring fairness, making timely disclosure of evidence to the defense, and avoiding
actions that aim to humiliate or burden the accused or witnesses.
 Conducting oneself professionally in court and acting in the interest of justice.
 Maintaining accurate and up-to-date records of the case and following court

(ii) Contents Of The Advocate File

What documents must be included in an advocate file?

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The advocate file must include the following documents:
1. Letter of appointment or instruct note.
2. Charge sheet.
3. Bail and bond documents.
4. Legal opinion or brief.
5. Witness statements and documentary exhibits.
6. Legal research materials.
7. Case plan.
8. Defense case materials.
9. Defense witness statements.
10. Court attendance form.

What is the purpose of the letter of appointment or instruct note in an advocate file?

The letter of appointment or instruct note serves as evidence of an advocate-client

relationship. It contains specific instructions given to the advocate, the retainer, and the exact
actions required of the advocate. It also includes the advocate's name and the name and
address of the person giving the instructions.

What information does the charge sheet contain, and why is it important in storing the
advocate file?

The charge sheet contains:

- The name of the accused
- The date they were arrested.
- The national ID number
- Age
- The offense being charged (statement of offense),
- Its particulars - You then mention the particulars of offence which describes when that
crime was committed, on which road, on which street, at what time, what did they do.
Giving details of how the crime was committed.
- Any alternative charges if present.

It serves as a formal means of instituting criminal proceedings and must be given to the
accused before arraignment to ensure they know what they are being charged with. Storing
the charge sheet in the advocate file is necessary for documentation purposes and to ensure
the accused's rights are upheld.

What are bail and bond documents, and why should copies of these documents be
present in the advocate file?

Bail and bond documents include legal applications for granting bail and receipts of
payments made following the grant of bail. Copies of these documents should be present in
the advocate file because the originals are typically deposited with the court. These
documents are necessary for the client's admittance to bail and serve as evidence of the bail
granted.

What is the purpose of a legal opinion or brief in an advocate file?

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A legal opinion or brief is provided by the advocate to the client and outlines the strengths
and weaknesses of the case based on the client's facts and the prosecution's facts. It helps
inform the client about the strength and weakness of the criminal case against them. The
advocate must give the client a legal opinion and keep a copy of it in the advocate file.

What documents form part of the advocate's file regarding witness statements and
documentary exhibits?

The advocate's file includes copies of witness statements and documentary exhibits that will
be relied upon during the trial. These documents can range from complainant's witness
statements, medical reports, CCTV footage, necessary police statements, and other real
evidence available.

Why is legal research important in an advocate file, and what materials are included?
Legal research is important for an advocate after gathering relevant evidence. It involves
highlighting and placing in the advocate file a list of cases that will be relied upon during the
trial. The research materials include law reports, statutory declarations, domestic laws, and
past case laws that are relevant to the facts of the case being handled. The contents of the
research materials will eventually appear in the defense submissions to the court.

What is included in the case plan in an advocate file?

The case plan includes notes on the facts, analysis of the evidence gathered, the applicable
legal principles, and the overall strategy for the trial process. It helps guide the advocate in
preparing and presenting the defense case.

What materials should be documented in the defense case section of an advocate file?

The defense case section of the advocate file should include evidence, defense witness
statements, legal research materials for court submissions, and copies of reports that the
prosecution is relying on, such as postmortem reports, ballistics reports, fingerprint analysis
reports, expert reports, and handwriting expert reports.

What information is recorded in the court attendance form, and why is it relevant to the
advocate file?

The court attendance form contains details such as the date and length of attendance, file
reference, client's name, case number, names of advocates and counterparts in attendance,
name of the judge, purpose of the court attendance, what transpired in court, and further
instructions resulting from the court attendance. It is relevant to the advocate file as it
provides a record of the advocate's court appearances and the relevant information associated
with each attendance.

(iii) Contents Of A Court File

How is a court file prepared, and when is it opened?

A court file is not prepared in advance but is opened when a suspect is arraigned in court. The
director of public prosecutions prepares the charge sheet, delivers it to the criminal registry,
and assigns it a criminal case number. The charge sheet is then placed in the court file, which

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is opened with necessary information written on the physical file cover, including the court of
arms emblem, court name, case number, parties' names, and the charge.

What is the purpose of the charge sheet in a court file?

The charge sheet is the foundational document that initiates a criminal proceeding in court. It
contains crucial information such as the police case number, court file number, the name of
the accused(s), the charge, particulars of the charge, and details of witnesses and the
investigating officer.

What documents are included in the court file regarding bail and bond?

The court file includes bail and bond documents, which consist of the temporary release of
the accused person from imprisonment on finding surety or security to appear for trial. These
documents involve a written promise by the accused person to appear in court in return for
temporary release, and they may also include particulars of surety documents.

What is the purpose of the hearing proceedings section in a court file?

The hearing proceedings section includes the proceedings that the magistrate or judge records
during the progress of the case, whether it is a mention, hearing, cross-examination, or
examination. It encompasses all the recorded proceedings during the trial.

How are proceedings recorded in a court file during criminal proceedings?

In criminal proceedings, when a suspect is arraigned in court and takes a plea, the plea-taking
process is recorded. Evidence is then taken down in writing in a narrative form, and the
judicial officer signs that the recorded evidence forms part of the record. The proceedings are
recorded during the hearing, including all that is said by the witnesses, starting from the oath.

Defence file

What forms are in the defence file?

What is in a defence file?

The Defence file in Kenya contains various documents and records that are compiled and
organized by the defense team to support the accused in a criminal case. These contents help
the defense prepare their case, understand the charges, and gather evidence. Here's an
explanation of each item commonly found in a Defence file in Kenya:

 Instruction note: This document contains instructions provided by the accused to their
defense team. It outlines the accused's version of events, their defense strategy, and any
specific instructions or requests they have for their legal representation.

 Client attendance form: This form records the dates and times of meetings or
consultations between the accused and their defense team. It helps track the client's
attendance and serves as a record of the communication and engagement with the
accused.

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 Court attendance form: This form documents the dates and times when the defense
team is required to appear in court for hearings, proceedings, or trials. It helps the defense
team keep track of their court appearances and ensures they are present when required.

 Charge sheet: The defense file includes a copy of the charge sheet, which outlines the
specific charges filed against the accused. It provides details of the offense, the relevant
laws violated, and any other necessary information related to the charges.

 Legal opinion/brief: This document contains a legal opinion or brief prepared by the
defense team. It outlines the legal analysis, arguments, and strategy that will be employed
to challenge the prosecution's case and defend the accused.

 Fee notes: Fee notes are records of the legal fees charged by the defense team for their
services. These notes document the agreed-upon fees, any payments made, and
outstanding balances.

 Copies of documents for bail application: If the accused has applied for bail, the
defense file includes copies of the relevant documents submitted for the bail application.
This may include affidavits, surety documents, and any other supporting materials.

 List of Accused's property when arrested: This list documents the personal belongings,
assets, or property that was in the possession of the accused at the time of their arrest. It
helps the defense team understand the circumstances surrounding the arrest and can be
relevant to the defense strategy.
 Copy of prosecution file: The defense file includes a copy of the prosecution file, which
contains the evidence and documents compiled by the prosecution. Having a copy allows
the defense team to review the prosecution's case and identify any weaknesses or
inconsistencies.
 Legal research - laws and cases to be relied on: This section includes legal research
conducted by the defense team. It comprises relevant laws, statutes, regulations, and case
precedents that support the defense's arguments and position in the case.
 Case strategy, defense case - statements made by the accused: The defense file contains
a record of the defense team's case strategy, which includes the arguments and defenses to
be presented in court. It also includes any statements made by the accused regarding their
defense, which can be used as evidence during the trial.
 Defense witnesses statements: This section contains statements provided by defense
witnesses who have relevant information or can provide testimony supporting the
accused's defense. These statements are recorded or transcribed interviews conducted by
the defense team.

 List of authorities, cause list: The defense file includes a list of legal authorities, such as
statutes, regulations, and case law, that the defense team intends to rely on in their
arguments. Additionally, it may include the cause list, which provides details of
upcoming court hearings or appearances.

 Correspondences: This section includes any relevant correspondence related to the case,
such as letters, emails, or memos exchanged between the defense team, the accused,
prosecution, or other parties involved in the legal process. These correspondences
document important communications and provide a record of discussions or agreements.

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These contents in a Defense file in Kenya are crucial for building a robust defense strategy,
preparing for court appearances, and challenging the prosecution's case. They serve as a
comprehensive record of the defense's preparations, research, and communication, ensuring
effective representation of the accused during the legal proceedings.

Complaint And Charge

What is a charge and what is its purpose?

A charge is a written statement of complaint brought against an accused person in a court of

law. Its purpose is to inform the accused person of the offense with which they are charged
and to commence a criminal trial upon their plea.

How do you institute criminal cases?

Charge

What is a plea and what are the different options for pleading?

A plea is the response of the accused person to the charge sheet or information read to them
in court. The different options for pleading are:
 Guilty: Accepting the charges.
 Not guilty: Denying either the charge or the particulars.
 Refusing to plead: The court registers it as not guilty.
 Autrefois acquit: Previously acquitted before any it isn't a respect of a similar charge and
the same statement of facts that in the charge sheet that has been presented before the
court.
 Autrefois convict: Previously convicted in respect of the same charge and the same
statement of facts that are in the charge sheet that has been brought before the court.
 Presidential Pardon

What are the exceptions to Autrefois convict/acquit

 For them to apply they have to be in respect of a trial that was completed.
 It is not a trial that was later appealed and it later became a mistrial, or it was not in
respect of a trial that was interrupted because somebody pleaded insanity or raised
another defence like the charge sheet has been duplicated or that the charge sheet that was
brought before the court is not disclosing the offence.
 So it has to be an uninterrupted trial that has gone through the trial process which is
examining nation in chief, cross examination and re-examination. But where there is
interruption at any point either because the accused has raised the defence oh maybe they
have appealed and the particular conviction of acquittal has been reversed, then you
cannot bring in these types of pleas.

What is the difference between a charge sheet and an information?

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A charge sheet is used in subordinate courts, while an information is used in the High Court.
The charge sheet is the document containing a formal written accusation of an offense, signed
as required by law.

What is the legal basis for charges in Kenya?

The legal basis for charges in Kenya is the right to a fair trial under Article 25 and the right
to a fair hearing under Article 50 of the Constitution. The accused person has the right to be
informed of the charge with sufficient detail to answer it. Charges must be based on
provisions of the law and describe a criminal offense recognized in Kenya.

How can an offense be charged under international law in Kenya?

Under the 2010 Constitution, offenses that are not recognized in Kenya but are offenses
under international criminal law can be charged. International crimes, such as genocide,
crimes against humanity, war crimes, and crimes of aggression, are outlined in the Rome
Statute. Kenya has domesticated the Rome Statute through the International Crimes Act of
Kenya (2008).

What is the current law regarding the decision to charge in Kenya?

The state powers of prosecution are vested in the Director of Public Prosecutions (DPP)
under Article 157 of the Constitution. The DPP has the authority to institute and undertake
criminal proceedings, take over and continue ongoing proceedings, and discontinue
proceedings with permission. Private prosecutions are also allowed under certain conditions,
where the complainant has exhausted public machinery of prosecution and the DPP has
declined to prosecute without reasonable cause.

What are the key elements of a charge sheet?

A charge sheet consists of three key elements:

1. Commencement: Includes details such as the police case number, court file number,
date of the accused's appearance, personal details of the accused such as the name,
age, sex and address.
2. Statement of offense: Describes the offense shortly in ordinary language, avoiding
technical terms, and refers to the section of the law creating the offense.
3. Particulars of offense: Provides additional details about the offense, such as the
dates, place, subject matter, identity of the complainant, and identity of the accused
person. The particulars must give reasonable information to enable the accused to
understand the nature of the offense they face.

What are the rules of drafting of charge sheet?

 You should not duplicate charges: You cannot put two counts or two crimes in the
same charge sheet. You should make sure you separate them. If one person had murdered
two people separately then you should have two separate charge sheets for those two
separate charges.
 Joinder of accused persons: When drafting touches you should make sure that when
you're in adjoining accused persons they have to be involved in the same transaction or
they aided or abetted each other in committing the crime in such a way that you do not

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 accuse two accused persons for different crimes. It has to be the same crime. The rule is
when you are joining accused persons it has to be in respect of the same transaction and
they must have been in the same place. Same transaction means same place, same time
and same location. Everything has to be the same otherwise if anything is different even
the timing then there has to be two different charge sheets.
 If there's more than one offence an accused person has committed they should not
be enjoined in the same particulars of offence. There should be two different counts for
those two different offences. So if an accused person has committed robbery with
violence and conversion of property. You need to make sure that robbery with violence is
in count one and conversion of property or theft is count 2. In that you do not combine
two offences in the same particulars of offence or even the statement of offence. If you're
saying that Ruth committed robbery with violence contrary to section 30 of the Penal
Code, there should be another statement of offence describing conversion she did or the
theft. When drafting charge sheets we should make sure different offences are in different
courts.

What makes a charge sheet defective

 Incorrect Charges: If the charge sheet contains incorrect charges that do not accurately
reflect the alleged offense, it may be deemed defective. For instance, if the charge sheet
accuses the defendant of a crime that is not supported by the facts or the evidence, it
would be considered defective.
 Duplicity of charges: . Black’s Law Dictionary defines duplicity of charges is the joining
of two or more offenses in the same count of an indictment. It is a legal requirement that a
charge should not suffer from duplicity. Duplicity occurs where the charge or count
charges the accused of having committed two or more separate offences the charge is
barred for duplicity.
 Failure to Allege Offenses Properly: The charge sheet must properly allege the
offenses, and it should conform to the applicable laws and statutes. Failure to comply
with the proper legal requirements may result in a defective charge sheet.
 Wrongful Inclusion of Multiple Offenses: If the charge sheet accuses the accused of
multiple offenses without proper justification or evidence, it may be considered defective.
 Errors in Names or Identity: If the charge sheet contains errors in the names or identity
of the accused, witnesses, or victims, it may be deemed defective.
 Lack of Signature or Authorization: The charge sheet should be properly signed and
authorized by the appropriate legal authority. If it lacks the required signature or
authorization, it may be considered defective.

Explain Instances where the DPP's power to charge has been challenged:
 In the case of Kinoti & 7 others v Chief Magistrates Court Milimani Law Courts
& 4 others, the DPP's power to charge was challenged when the police, instead of the
DPP, drafted a charge sheet without the DPP's approval. The accused argued that only
the DPP had the authority to draft a charge sheet and that the police lacked the
expertise to enforce tax laws. The court affirmed that the DPP has the exclusive
power to draft charges.
 In Engineer Kamau Geoffrey Sang v DPP and 4 Others, it was argued that the
Director of Criminal Investigations (DCI) should not interfere once they have
completed their investigation, and the DPP should have the final say in whether to
charge or not. The court upheld the power of the DPP to draft charges and emphasized
the separation of powers between investigative bodies and the DPP.

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  Okiya Omtata v DPP highlighted the argument that the police should be responsible
for drafting charge sheets, while the DPP can take over the proceedings. However, the
court rejected this argument, stating that the DPP has the power to order
investigations and receive feedback on the outcomes of the investigations.
 The Court of Appeal stayed the Kinoti decision, affirming that the power to draft
charges remains with the DPP. The Sang Kamau and Okiya Omtata cases were not
stayed, further supporting the exclusive power of the DPP to draft charges.

What is the test to charge someone with a criminal offense?

The test to charge someone with a criminal offense involves determining whether there is
sufficient evidence with a realistic prospect of conviction. The Director of Public
Prosecutions (DPP) reviews the evidence received from the police or investigative files and
assesses if there is enough evidence to lead to a realistic prospect of conviction.

What is the effect of illegally obtained evidence in that case?

Article 50(4) of the Constitution provides as follows: Evidence obtained in a manner that
violates any right or fundamental freedom in the Bill of Rights shall be excluded if the
admission of that evidence would render the trial unfair or would otherwise be detrimental to
the administration of justice.

What are the three elements of the test decision for charging someone with a criminal
offense?

The three elements of the test decision for charging someone with a criminal offense are: a.
Evidential Test: This test determines whether the available evidence is sufficient to establish
a realistic prospect of conviction. b. Public Interest Test: Even if there is sufficient evidence,
the DPP may decide not to charge a person if it is not in the public interest, considering
factors like the age or frailty of the suspect. c. Threshold Test: In cases where there is
sufficient evidence to establish that an offense has been committed, but additional evidence is
required for a particular charge, the DPP may still charge the person and await the additional
evidence.

Who are the parties to a charge in criminal proceedings?

The parties to a charge in criminal proceedings are: a. The accused person: This is the
individual who is charged with the offense. b. The prosecution: This refers to the state or the
entity responsible for presenting the case against the accused person.

What is the concept of duplicity in a charge?

Duplicity in a charge refers to the inclusion of two or more separate offenses within a single
charge or count. It is considered a defect in the charge because it makes it unclear which
offense the accused person is being charged with, thus compromising the fairness of the
proceedings. To avoid duplicity, each offense should be charged separately.

What is joinder of counts in a charge?

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Joinder of counts in a charge refers to the inclusion of multiple offenses committed by the
same person on the same facts within a single charge sheet. Instead of having separate charge
sheets for each offense, a single charge sheet with different counts is used. Joinder of counts
aims to save time and streamline the proceedings, but the counts can be separated if
necessary.
Under what circumstances can two or more accused persons be joined in one charge or
information?

Two or more accused persons can be joined in one charge or information if:

 They are accused of the same offense committed in the course of the same transaction.
 They are accused of an offense, and others are accused of abetment or attempt to commit
that offense.
 They are accused of more offenses than one of the same kind, committed jointly within a
period of twelve months.
 They are accused of different offenses committed in the course of the same transaction.

What is the process of instituting criminal proceedings?

Criminal proceedings can be instituted by: a. Making a complaint or bringing a suspect

before the court. b. Filing a charge sheet or information that contains a statement of the
specific offense(s) with necessary particulars. c. The accused person has the right to be
informed of the charge with sufficient detail to answer it.

What is the process of amending or substituting charges in a criminal trial?

The court has the power to amend or substitute charges at any stage of the trial before the
close of the prosecution's case if the charge is defective in substance or form. The accused
will be called upon to plead to the amended or substituted charge, and they may request the
recall of witnesses for fresh evidence or further cross-examination.

What does it mean to admit charges?

Admitting charges means that the accused person acknowledges and accepts the charges
brought against them. It indicates their acknowledgment of guilt regarding the offense(s) they
are charged with.

What is the concept of withdrawal of charges in criminal proceedings?

Withdrawal of charges occurs when the public prosecutor, with the consent of the court or
instructions from the Director of Public Prosecutions (DPP), decides to discontinue the
prosecution of a person. If the withdrawal is made before the accused person is called upon to
make their defense, they will be discharged. If the withdrawal occurs after the accused person
has made their defense, they will be acquitted.

When can charges be withdrawn in a trial before a subordinate court?

In a trial before a subordinate court, a public prosecutor can withdraw from the prosecution of
any person with the consent of the court or on the instructions of the Director of Public
Prosecutions (DPP) at any time before judgment is pronounced.

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What is nolle prosequi?

Nolle prosequi is a Latin term that refers to the power of the Director of Public Prosecutions
(DPP) to enter a nolle prosequi in a criminal case. It allows the DPP to inform the court,
either orally or in writing, that the prosecution intends to discontinue the proceedings against
the accused person. Upon the entry of nolle prosequi, the accused person is immediately
discharged, and if they were in custody, they are released. However, the discharge does not
prevent subsequent proceedings on the same facts.

What are the consequences of a Nolle prosequi being entered?

When a Nolle prosequi is entered, the accused person is immediately discharged in respect of
the charge for which it is entered. If the accused person is in prison, they will be released, and
if on bail, their recognizances will be discharged. However, the discharge does not operate as
a bar to subsequent proceedings against the accused on the same facts.

Bail &Bond

What is bail ?
An agreement between an accused person or his/her sureties and the court that the accused
person will attend court when required, and that should the accused person abscond, in
addition to the court issuing warrants of arrest, a sum of money or property directed by the
Court to be deposited, will be forfeited to the court.

What is bond?

An undertaking, with or without sureties or security, entered into by an accused person in

custody under which he or she binds him or herself to comply with the conditions of the
undertaking and if in default of such compliance to pay the amount of bail or other sum fixed
in the bond

What is the difference between bail and bond?

Bail refers to the agreement between the accused person and the court that they will attend
court when required, and failure to do so may result in arrest, custody, or forfeiture of money
they had paid to the court. After the matter is concluded the money is returned.

Bond is the backup option when an individual is able to pay the bail amount. In this instance
they will forfeiture property in the form of a title deed to provide for security that they will
attend court.

What is the legal framework for bail and bond?

The legal framework for bail and bond in Kenya is primarily governed by the Constitution of
Kenya, specifically Article 49(1)(h), which guarantees the right to be released on bond or
bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons
not to be released. The Criminal Procedure Code (CPC) provides further provisions regarding
the administration of bail and bond, including the power of police officers and courts to admit
a person to bail or release them on executing a bond with or without sureties. Other laws,

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such as the Children Act, Prevention of Terrorism Act, and National Police Service Act, also
contain provisions related to bail.

What is the rationale for bail and bond?

The rationale for bail and bond is based on the principles of the presumption of innocence,
the right to liberty, and the right to dignity. The Constitution recognizes the right of an
accused person to be presumed innocent until proven guilty and emphasizes that pre-trial
detention should not be a form of punishment.
Bail and bond are mechanisms that allow accused persons to be released from custody
pending trial, ensuring that they can participate in their defense and maintain their personal
and professional lives as much as possible. By granting bail or bond, the court acknowledges
the presumption of innocence and upholds the right to liberty and dignity of the accused.

The granting of bail or bond is considered a matter of right unless the prosecution can present
compelling reasons to object to release. It is the responsibility of the criminal justice system
to minimize pre-trial detention and explore alternatives to ensure the fair treatment and
management of accused persons.
Overall, the rationale for bail and bond is to strike a balance between protecting the rights of
the accused and ensuring the interests of justice. It aims to prevent unnecessary pre-trial
detention and allows individuals to maintain their freedom while awaiting trial, unless there
are justifiable reasons to curtail this right.

What are the circumstances under which the right to bail can be limited?
The right to bail can be limited in certain circumstances, such as when it is necessary to
protect the suspect or any witness, ensure the suspect's availability for examination or trial,
prevent interference with investigations, prevent the commission of an offense under the
Prevention of Terrorism Act, or ensure the preservation of national security. These limitations
are specified in the Constitution and the Prevention of Terrorism Act.

What factors are considered in determining whether to grant bail or bond?

When deciding whether to grant bail or bond, the court considers various factors, including
the nature and seriousness of the charge, the strength of the prosecution's case, the character
and antecedents of the accused person, previous failure to observe bail or bond terms,
likelihood of interfering with witnesses, the need to protect victims, the relationship between
the accused person and potential witnesses, flight risk, considerations of public order, peace
or security, and the protection of the accused person. These factors are evaluated on a case-
by-case basis.

Is the right to bail absolute, or can it be curtailed?

The right to bail is not absolute and can be curtailed under certain circumstances. The
prosecution has the burden of demonstrating compelling reasons to curtail the right to bail.
However, the court can impose reasonable conditions when admitting a person to bail or
bond.

Can a person apply for bail or bond without legal representation?

Yes, a person can apply for bail or bond without legal representation. The court has a duty to
inform an accused person of their right to bail and inquire whether they want to make an
application for bail. Legal representation is not a requirement for making a bail or bond
application.

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Is there a recourse if bail is denied or there is an improper exercise of discretion?
Yes, under Section 123(3) of the Criminal Procedure Code, if there is an improper exercise of
discretion by a subordinate court or if bail has been denied, one can approach the High Court
to review or revise the decision. The revisionary powers of the High Court can be invoked in
such situations.

What are the conditions in granting bail?

 That the accused shall always attend court mentions and hearing unless otherwise directed
by court or if indisposed must have leave of court.
 That the accused shall not leave the jurisdiction of the court without leave of court
 That the accused shall not interfere with evidence and or witnesses
 They will not commit a crime during the pendency of the prosecution
 That a default in appearance during mentions shall revert the bail amount to the state
 The accused shall comply with court directions.

What is the revisionary jurisdiction of the high court in kenya?

The High Court in Kenya has revisionary jurisdiction, which allows it to exercise supervisory
powers over the proceedings and decisions of subordinate courts. The revisionary jurisdiction
of the High Court is derived from Section 362 of the Criminal Procedure Code (CPC) and is
also supported by the Constitution of Kenya, specifically under Article 165(6)(b).
The revisionary jurisdiction of the High Court enables it to review and correct errors,
irregularities, or illegalities that may have occurred in the proceedings of subordinate courts.
This includes cases where there has been a miscarriage of justice, a violation of fundamental
rights, or a misinterpretation of the law.
Under this jurisdiction, the High Court has the power to:
 Call for and examine the records of any criminal case that has been decided by a
subordinate court.
 Make inquiries, if necessary, to satisfy itself about the correctness, legality, or propriety
of the proceedings or decisions of the subordinate court.
 Pass appropriate orders, including setting aside or altering the proceedings or decision of
the subordinate court, ordering a retrial, or issuing any other necessary directions.
 Exercise its discretion in determining whether or not to exercise revisionary jurisdiction
in a particular case.
It's important to note that the revisionary jurisdiction of the High Court is discretionary and
not an automatic right. The court will consider the merits of each case and decide whether
intervention is necessary in the interest of justice.

What are the types of bail?

 Bail pending trial: Granted to individuals while their trial is ongoing, allowing them to
remain free until a verdict is reached. This type of bail is granted to individuals who are
awaiting trial for a criminal offense. It allows them to be released from custody and
remain free until a verdict is reached in their case. Bail pending trial is typically granted
when the court determines that the accused is not a flight risk and poses no danger to the
community. The accused is required to comply with certain conditions set by the court,

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 such as surrendering travel documents, regular reporting to the police, or refraining from
contact with certain individuals. If the accused adheres to these conditions, they can
continue with their normal activities while awaiting trial.
 Bail pending appeal: This type of bail is granted to individuals who have already been
convicted and sentenced but have lodged an appeal against the conviction or sentence. It
allows them to be released from custody while their appeal is being heard and
determined. The purpose of bail pending appeal is to provide the opportunity for the
appellant to present their case to a higher court without having to serve their sentence
first. The court considers factors such as the strength of the appeal grounds, the likelihood
of success, and the risk of flight or harm to determine whether to grant bail pending
appeal. The accused must comply with specific conditions, similar to bail pending trial, to
maintain their freedom during the appeal process.
 Anticipatory bail: Anticipatory bail is sought when there is a reasonable expectation that
an individual's constitutional rights may be violated or they may face arrest. It is a
proactive measure taken to secure freedom preemptively. Anticipatory bail is often sought
in situations where there is a specific apprehension of harm, legal action, or political
motives. The applicant presents their case to the court, demonstrating the potential threat
to their rights or freedom. The court then evaluates the circumstances and may grant
anticipatory bail if it finds sufficient grounds to believe that the person may face
infringement or arrest. Anticipatory bail allows the individual to secure their freedom in
advance, providing protection against any perceived threats or violations.
 Police bail: Police bail in Kenya provides a temporary release from custody for
individuals who have been arrested, allowing them to await trial or further investigation
outside of jail. The decision to grant bail is at the discretion of the police officer in
charge, who considers factors like the seriousness of the alleged offense, criminal history,
and flight risk. Bail applications can be made at the police station, and if granted,
conditions may be imposed, such as regular reporting or surrendering of travel
documents. In some cases, a bail bond may be required. Compliance with bail conditions
and appearance in court on the scheduled date are essential. As of my last update in
September 2021, it is essential to verify current laws and regulations to ensure accuracy,
as legal processes may have evolved since then.
 Police Pending charges: Bail pending charges, also known as pre-trial bail, refers to the
process in which a person, who has been arrested and is under investigation for an alleged
offense, is granted temporary release from custody by the court. During this period,
formal charges have not been filed yet. The court carefully considers various factors, such
as the nature of the alleged crime, the individual's ties to the community, and their risk of
flight, before making a decision on granting bail. If bail is approved, specific conditions
may be set, which the person must adhere to while awaiting trial. These conditions can
include regular reporting to the police, surrendering travel documents, or staying away
from certain individuals. Bail pending charges aim to balance the interests of justice with
the individual's right to freedom until their guilt or innocence is established in court. The
availability and specific terms of bail pending charges can vary depending on the
jurisdiction and applicable laws.

Anticipatory bail is often politically motivated and is sought when there are indications of an
imminent threat of arrest or infringement of rights. It is not commonly sought by ordinary
individuals but rather in situations where there is a specific apprehension of harm or legal
action

What is the constitutional basis for anticipatory bail in Kenya?

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 The right to anticipatory bail is not explicitly provided for in the Constitution of Kenya.
However, it is implicit in Article 22, which allows individuals to institute court
proceedings if their rights or fundamental freedoms have been violated or threatened.
Additionally, Article 23(3) grants the court the power to grant appropriate relief,
including bail, in proceedings brought under Article 22.
 A Magistrate Court does not have the power to grant anticipatory bail. The jurisdiction
for anticipatory bail lies with the High Court, as specified in Article 165 of the Kenyan
Constitution.

What are the conditions for anticipatory bail ?

The conditions for anticipatory bail, which may be imposed by the court, are as follows:
 Availability for interrogation: The person seeking anticipatory bail must make
himself available for interrogation by the police officer whenever required. This
condition ensures cooperation with the investigation process.
 Non-inducement, threat, or promise: The person must not make any inducement,
threat, or promise to any individual who is aware of the facts of the case, in order to
prevent them from disclosing those facts to the court or any police officer. This
condition aims to preserve the integrity of the investigation and prevent tampering
with witnesses or evidence.
 Stay within jurisdiction: The person granted anticipatory bail should not leave the
jurisdiction without prior permission from the court. This condition ensures that the
person remains within the reach of the legal process and does not evade justice.
 Disclosure of reasons: The person seeking anticipatory bail must disclose facts and
events that justify their belief that they may be arrested. This information helps the
court specify the offense in relation to which the anticipatory bail order will be
effective.
It's important to note that as long as the conditions set by the court are complied with, the
person remains free on bail. However, if the conditions are violated or if there are significant
changes in circumstances, the court may cancel the anticipatory bail.

Why is the standard of proof in bail applications lower than beyond reasonable doubt?
 The standard of proof in bail applications is lower than beyond reasonable doubt because
an application for bail is not a criminal trial process but a constitutional application. The
standard is based on a balance of probabilities, where the court evaluates the likelihood of
the accused person attending their trial. The lower standard recognizes that pretrial
detention should be a measure of last resort, and courts should make every reasonable
effort to avoid it.

How does the bail application process work when there are multiple accused persons?

Each co-accused may have independent circumstances that may favor or disfavor their bail or
bond application. The court may grant bail to some co-accused and deny it to others, based on
their individual circumstances and the determination of their propensity to abscond.

What are the criteria for granting bail pending appeal?

Bail pending appeal is granted when the applicant can demonstrate overwhelming chances of
the appeal succeeding. Factors considered include the cogency of the grounds of appeal,

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exercise of the court's discretion, and the particular facts of the case. Other considerations
may include the medical condition of the applicant, the nature of the offense, the imposed
sentence, and the likely delay in the appeal process.

What is recognizance in relation to bail?

Recognizance is a bond in which a person undertakes, before a court or magistrate, to observe

certain conditions, such as appearing when summoned. Before a person is released on bail or
their own recognizance, a bond must be executed, typically with one or more sureties, to
ensure their attendance at the specified time and place until otherwise directed by the court or
police officer.

What are the compelling reasons for granting or denying bail or bond?
The determination of whether to grant or deny bail or bond is based on the evaluation of
whether the accused person will attend their trial. Factors considered include the nature and
seriousness of the charge, strength of the prosecution's case, character and antecedents of the
accused, previous failure to observe bail or bond conditions, likelihood of interfering with
witnesses, need to protect victims, relationship between the accused and witnesses, flight risk,
considerations of public order, peace or security, and protection of the accused person.

What is the guiding principle for granting bail, and is the test subjective or objective?

The guiding principle for granting bail is whether the accused person will attend their trial.
The test is subjective, and both the court and the police rely on various factors to make their
determination, considering the circumstances of each case. These factors have been
concretized through case law over time.

what will the court consider before granting bail?

The court considers several factors before granting bail to an individual. These factors may
vary depending on the jurisdiction and specific circumstances of the case. Here are some
common considerations:
1. Nature and seriousness of the offense: The court evaluates the type and severity of the
alleged crime. More serious offenses may make it less likely for bail to be granted.
2. Strength of evidence: The court examines the strength of the evidence against the
defendant. If the evidence is strong, it may weigh against granting bail.
3. Risk of flight: The court assesses the likelihood of the defendant fleeing or not
appearing for future court proceedings. Factors such as ties to the community,
employment, family relationships, and past behavior may be taken into account. The
court considers the defendant's financial resources, access to travel documents, and
any past history of failing to appear in court.
4. Public safety: The court considers the potential risk the defendant poses to the public
if released. This includes evaluating any prior criminal record, history of violence, or
threat to witnesses.
5. Character and background of the defendant: The court may consider the defendant's
personal history, including their reputation, criminal record (if any), ties to the
community, employment, and family support.

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 6. Ability to interfere with the investigation or tamper with evidence: The court
examines whether releasing the defendant on bail could lead to witness tampering,
evidence destruction, or obstruction of justice.
7. Any prior failures to comply with court orders or conditions of bail: If the defendant
has a history of not following court orders or violating conditions of bail, it may
weigh against granting bail.
8. Proposed bail conditions: The court may impose certain conditions upon release, such
as surrendering travel documents, regular reporting to authorities, electronic
monitoring, or restrictions on contact with certain individuals.

What are the exceptional circumstances when bail may be denied?

In Kenya, bail may be denied in exceptional circumstances when there are compelling
reasons to believe that granting bail would jeopardize the course of justice or pose a risk to
public safety. Some of the exceptional circumstances when bail may be denied include:
 Seriousness of the Offense: If the offense is of a grave nature, such as murder,
terrorism, treason, or other violent crimes, the court may consider the seriousness of
the offense as a compelling reason to deny bail.
 Flight Risk: If there is substantial evidence or reasonable grounds to believe that the
accused is a flight risk and is likely to evade trial by absconding, the court may deny
bail to ensure the accused's presence during the trial.
 Interference with Witnesses or Evidence: If there is a real and credible threat that the
accused may interfere with witnesses or tamper with evidence, the court may deny
bail to protect the integrity of the trial process.
 Previous Record: The accused's previous criminal record, especially if it includes
instances of absconding while on bail or committing similar offenses, may be
considered a compelling reason to deny bail.
 Repeat Offender: If the accused is a repeat offender and has a history of committing
similar crimes, the court may consider this as a risk factor and deny bail.
 Public Safety Concerns: If granting bail could pose a risk to public safety or cause
public outrage, the court may deny bail to prevent potential harm to the community.
 Likelihood of Committing Further Offenses: If there are reasonable grounds to
believe that the accused, if released on bail, is likely to commit further offenses, the
court may deny bail as a preventive measure.
 Risk of Witness Intimidation: If there is evidence to suggest that the accused may
intimidate witnesses or attempt to hinder the administration of justice, the court may
deny bail to protect the witnesses and the fairness of the trial.
It is essential to note that the denial of bail should be based on specific and well-founded
reasons supported by evidence. Bail denial is not the norm, and the court must balance the
rights of the accused to liberty with the interests of justice and public safety when making
such decisions. The right to bail is constitutionally protected, and bail should be granted
except in exceptional circumstances where the court has reasonable grounds to believe that it
would not be in the interest of justice to do so.

What factors does a traffic police officer rely on when deciding whether to grant bail to
a person?

A traffic police officer, like the court, evaluates whether the grant of bail, on whatever terms,
will ensure the accused person's attendance in court and minimize the possibility of

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absconding. Although not governed by specific laws, the officer considers factors such as the
seriousness of the offense, evidence, social status, economic status, and the likelihood of the
accused person attending court proceedings.

How do you prepare an application for bail pending appeal?

 The application for bail pending appeal should be filed in the High Court.
 It should be accompanied by a Certificate of Urgency.
 The application is made through a Notice of Motion.
 The applicant should submit a supporting Affidavit.

What are the steps to file an application for anticipatory bail pending appeal?
 File the application under a Certificate of Urgency, requesting expedited hearing and
disposal.
 Prepare a Notice of Motion for the application.
 Submit a supporting Affidavit by the applicant.

What should you do if you are told to sue the DPP or the Inspector General of Police?
 File an accompanying petition along with the application.
 A Notice of Motion deals with interlocutory matters, whereas an application for
anticipatory bail involves violations of fundamental rights and freedoms.
 Draft a supporting petition that contains genuine grievances to address constitutional
violations even after the applicant is granted bail.

What are the relevant constitutional provisions for bail and bond applications?
 Article 20 of the Constitution of Kenya 2010 - Application of Bill of Rights.
 Article 22 of the Constitution of Kenya 2010 - Enforcement of Bill of Rights.
 Article 23(1) of the Constitution of Kenya 2010 - Authority of courts to uphold and
enforce the Bill of Rights.
 Article 27(1) of the Constitution of Kenya 2010 - Equality and freedom from
discrimination.
 Article 49(1)(h) of the Constitution of Kenya 2010 - Rights of arrested persons to be
released on bond or bail, on reasonable conditions, pending a charge or trial.

Under what circumstances can a person be admitted to bail according to the Criminal
Procedure Code?
 Section 123 of the Criminal Procedure Code allows a person, other than a person
accused of murder, treason, robbery with violence, attempted robbery with violence,
and related offenses, to be admitted to bail.
 The amount of bail should be fixed with due regard to the circumstances of the case
and should not be excessive.
 The High Court has the power to direct the admission to bail or reduction of bail
required by a subordinate court or police officer.

What is the requirement for a bail bond?

 Before a person is released on bail or on their own recognizance, a bond must be
executed.
 The bond should be for a sum deemed sufficient by the court or police officer.
 When released on bail, one or more sufficient sureties should also execute the bond.
 The bond is conditioned on the person's attendance at the specified time and place
until otherwise directed by the court or police officer.

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Non compliance of bail conditions

How is forfeiture defined, and what is its purpose?

 Forfeiture is the involuntary relinquishment of money or property without
compensation due to a breach or nonperformance of a legal obligation or the
commission of a crime.
 It serves as a consequence for failing to comply with bail terms or recognize
obligations.

What is the procedure for forfeiture in the case of non-compliance with bail terms?
 If an accused person absconds, the court can issue a notice to any person bound by the
recognizance to pay the penalty or show cause why it should not be paid.
 If sufficient cause is not shown and the penalty is not paid, the court may issue a
warrant for attachment or sale of the surety's movable property or their estate if
deceased.
 If the penalty cannot be recovered through attachment or sale, the court may order the
imprisonment of the surety for a maximum of six months.
 The court has the discretion to remit a portion of the penalty and enforce payment
only for a specific amount in the recognizance.
 A certified copy of the judgment of the court that convicted the accused person can be
admissible as evidence in forfeiture proceedings against the sureties.
 All orders made by a magistrate regarding forfeiture of recognizance are amenable to
appeal and revision by the High Court.

What requirements must be fulfilled before forfeiture can be ordered?

 The court must record the grounds of proof as to why the recognizance should be
forfeited.
 The surety must be given the opportunity to show cause why the bail should not be
forfeited.
 The court must adhere to the principles of natural justice and grant the surety a fair
hearing.
 Failure to comply with these requirements would violate the rules of natural justice.

What are the consequences of non-compliance with bail conditions?

 If the accused fails to appear in court, an arrest warrant is issued against them.
 The surety may be ordered to pay a penalty or show cause as to why it should not be
paid.
 The surety is expected to assist in locating and handing over the accused to the police.
 Failure of the accused to appear may result in the court declaring the bail bond
forfeited, requiring the surety to settle the full amount.
 If the surety fails to pay the penalty, the court may order the attachment of their
movable property or the estate if the surety is deceased.

Is non-compliance with bail terms considered a criminal offense?

 No, non-compliance with bail terms does not result in a criminal offense for the
surety.
 It is a breach of the conditions of the security bond, and the remedy is forfeiture, not
conviction and punishment for an offense.

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  The principle of legality states that a person cannot be convicted for an act that was
not an offense under the law.
 Non-compliance with bail terms leads to the forfeiture of the security, not a criminal
conviction for the surety.

Surety

How is a surety defined?

 A surety is defined as a person who is primarily liable for paying another's debt or
performing another's obligation.
 They provide security on behalf of an accused person in bail proceedings.
 A surety pledges to ensure that the accused person appears before court and complies
with bail conditions, and their money or property can be forfeited if the accused
person fails to do so.

What factors does the court consider when determining the suitability of a surety?
 The court examines the surety's financial resources, character, and previous
convictions.
 The relationship between the surety and the accused person, including proximity and
their interest in looking after and ensuring the accused person's appearance in court, is
also considered.
 Any other relevant factors that the court deems fit may be taken into account.

What obligations and risks does a surety assume?

 The court explains to the surety that they are obliged to ensure the accused person's
attendance in court as required.
 If the accused person fails to appear, the surety may be required to forfeit part or all of
their money or property provided as security.
 The court has a responsibility to ensure that sureties understand their obligations and
the potential consequences if the accused person breaches bail conditions.
 Sureties may be required to sign a notice of undertaking of bail, outlining the accused
person's bail conditions and the consequences for the surety in case of non-
compliance.

What is the role of the prosecution in the surety approval process?

 The prosecution should participate in the process of surety approval.
 The court relies on the prosecution to verify documents and ensure the legitimacy of the
sureties.
 Without the participation of the prosecution, the process of approving the bond or surety
may be irregular, illegal, and improper.

How are the rights and safety of victims considered in the bail process?
 The Victim Protection Act No. 17 of 2014 protects the rights and welfare of crime
victims.
 Section 10(b) of the Act states that the safety of the victim and their family should be
considered when determining bail conditions and the subsequent release of the offender
into society.
 This implies that the victim's perspective and safety concerns should be taken into
account in bail proceedings.

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What is the definition of discharge in relation to sureties?
 Discharge refers to the method by which a legal duty of a surety is extinguished.

What is the procedure for discharging a surety?

 According to section 128 of the CPC, sureties for the appearance of a person released
on bail can apply to a magistrate to discharge the bond either wholly or partially.
 The magistrate will issue a warrant of arrest to bring the person before the court.
 Once the person appears in court or voluntarily surrenders, the magistrate can
discharge the bond either wholly or partially and require the person to find other
sufficient sureties.
 If the person fails to find other sureties, they may be committed to prison.

Can a surety be discharged from their obligations?

 Yes, a surety can be discharged from their obligations if they apply to the magistrate
to discharge the bond and meet the necessary requirements.

What happens in the event of the death of a surety?

 According to section 129 of the CPC, if a surety dies before their property is forfeited
for the bond, their estate is released from the liability of the bond.
 The accused person may be required to provide another surety.

Is the approval of sureties a judicial function or an administrative function?

 In the case of Republic v Baktash Akasha Abdalla, the court held that the approval of
sureties for persons released on bail is a judicial function.
 The process of approving sureties should be conducted in an open court before a
senior judicial officer and in the presence of both the prosecution and defense counsel.

Security

What is the definition of security in the context of bail and bond?

 Security refers to a sum of money or a title to a property that is pledged as a guarantee
for the appearance of an arrested or accused person in trial.

What legislation provides for the use of security in bail and bond?
 Article 49(1) of the Constitution of Kenya, 2010 provides the right to be released on bail
or bond on reasonable conditions, unless there are compelling reasons not to be released.
 Section 124 of the Criminal Procedure Act (CPC) states that a bond, with or without
sureties, must be executed by the person being released on bail or bond.

What is the purpose of the security verification process?

 The purpose of security verification is to ensure that the securities presented to the court,
such as title deeds or logbooks, are valid and can be relied upon as guarantees for the
appearance of the accused person.

What types of securities may be acceptable in bail and bond cases?

 Acceptable securities may include title deeds, logbooks, bank drafts, insurance bonds,
certificates of lease, share certificates, identity cards, letters from religious leaders,
business permits/licenses, and other documents deemed appropriate by the court.

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How can the authenticity of security documents be verified?
In addition to the security document itself, the court may require supporting documentation
such as valuation reports, official search certificates, verification letters, passport
photographs, copies of KRA pin certificates, and original/copy of identity cards or passports.

What challenges are faced in the verification of securities?

 Some courts have interpreted the law narrowly, limiting acceptable security documents to
specific types, which may pose challenges for accused persons who have other valuable
assets.
 Courts may lack resources or capacity to verify the authenticity of security documents,
leading to delays and potential detention of accused persons.
 There may be instances of corruption or compromise in the verification process,
necessitating the requirement of sworn affidavits from investigating officers to hold them
accountable.
 Clear procedures for the realization of securities when accused persons abscond may be
lacking, leading to difficulties in recovering the pledged assets.

Plea And Plea Bargain

What is the legal basis of taking a plea in Kenya?

The legal basis of taking a plea in Kenya is Article 50(2)(a) of the Constitution of Kenya
2010, which guarantees the right to a fair trial, including the right to be informed of the
charge with sufficient detail to answer it.

What is the purpose of plea taking in court?

Plea taking marks the commencement of the trial process and allows the accused person to
formally respond to the criminal charges made against them.

Explain plea taking.

Plea taking is a crucial stage in the criminal justice system where the accused responds to the
charges brought against them in court. Here's a step-by-step explanation of plea taking:
 Accused's Appearance: The accused appears in court before a judge or magistrate, along
with their legal representation if they have one.
 Reading of Charges: The charges against the accused are read out in court. The charges
should clearly disclose an offense. If the charges are not proper and fail to disclose an
offense, the court may discharge the accused, or the prosecution may be required to file a
fresh complaint with proper charges.
 Opportunity to Respond: After the charges are read, the accused is given an opportunity
to respond to the charges. This is the plea-taking moment, where the accused indicates
their position regarding the charges.
 Plea in Petty Offenses: In petty offenses, such as cases involving minor offenses like
drunk and disorderly conduct, the charges are read, and the accused is immediately asked
to enter their plea (guilty or not guilty).
 Plea in Serious Cases: In serious cases, if the accused pleads guilty, the court prosecutor
presents the evidence from the police file that supports the charges. The accused then has
the chance to respond to the evidence presented.

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 Guilty Plea and Conviction: If the accused admits to the charges and agrees with the
facts presented by the prosecution, they are convicted on their own plea. This means the
court accepts their admission of guilt, and the sentencing process follows.
 Disputing Facts: If the accused disagrees with certain facts in the prosecution's file or
disputes the charges, the court will enter a plea of not guilty or a plea of pardon, autrefois
acquit/convict. This means the case will proceed to trial, where evidence will be
presented, and a determination of guilt or innocence will be made.

Overall, plea taking is a critical stage in the criminal proceedings, as it allows the court to
establish whether the accused admits to the charges or chooses to contest them, leading to
further legal processes based on their response.

How should the pleading process take place?

 Pleading must take place in open court, in the presence of the accused person, and in a
court with jurisdiction.
 It should occur on the same day the accused person is brought to court, assuming that the
investigation has taken place.
 If the investigations are not complete, a holding charge may be presented, and the accused
person is not required to plead.
 The plea should be recorded as nearly as possible in the accused person's own words, and
the accused person should be explained every constituent of the charge.

Can the accused person plead through an advocate?

No, the accused person should personally make the plea and not through an advocate.

What happens if the accused person does not understand the language of the court?

If the accused person does not understand the language of the court, it is mandatory to
provide an interpreter who will translate the charge and proceedings for the benefit of the
accused and the court. The interpreter must be sworn in and should be reflected on the record.

What are the options for the accused person's plea?

The accused person can plead "not guilty," "guilty," or "guilty subject to a plea agreement."

What happens if the accused person admits the truth of the charge?

If the accused person admits the truth of the charge, other than through a plea agreement, the
admission should be recorded in the accused person's own words. The court may proceed to
convict and pass sentence, unless there is sufficient cause to the contrary.

What happens if the accused person does not admit the truth of the charge?

If the accused person does not admit the truth of the charge, the court will proceed to hear the
case according to the prescribed procedures.

What happens if the accused person refuses to plead?

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If the accused person refuses to plead, the court will enter a plea of "not guilty" on their
behalf.

What should be done if the accused person makes a plea related to previous convictions,
acquittals, or presidential pardon?

If the accused person pleads that they have been previously convicted or acquitted on the
same facts of the same offense or that they have obtained the President's pardon, the court
will conduct a trial to determine the truth of the plea. If the plea is found to be false or not
sustained by the evidence, the accused will be required to plead to the charge.

What is the difference between an affirmation and a sworn statement?

 A sworn statement is made by or on behalf of a person charged with an offense who
subscribes to a certain religion and takes an oath on a Bible or Quran. It is a formal
statement where the person swears to tell the truth, and if found false, consequences may
be imposed.
 An affirmation, on the other hand, is made by a person who does not subscribe to any
religious beliefs. They state that everything they are going to say will be true, and if found
false, they will be held accountable.

What are the elements of a plea?

The elements of a plea include:
 A formal statement made in court.
 Made by or on behalf of an accused person.
 In response to a charge made against the accused.

What does it mean for a person to be fit to take a plea?

A person is considered unfit to plead if they are incapable of understanding the proceedings,
which includes:
 Being able to put forward their defense.
 Giving proper instructions to defense counsel.
 Following the evidence.
 The issue of fitness to plead can be raised by either the defense or the prosecution,
and it is determined based on tests laid down by common law.

What are the types of offenses for the purpose of plea taking?

Offenses can be categorized into three types for the purpose of plea taking:
 Offenses that require no consent, which are generally triable by magistrate's courts.
 Offenses that require the consent of the Attorney-General before plea taking, such as
specific offenses like incest.
 Offenses that require the leave of the Attorney-General before the institution of
prosecution, which apply to offenses by foreigners within territorial waters.

What is the procedure for pleading generally?

 The accused person must be informed of their right to legal representation, and the
court should record whether they will have legal representation or represent
themselves.

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  If the accused person cannot afford a lawyer, they have the right to legal
representation, and the court should direct that they be given legal representation if
there would be a substantial injustice otherwise.
 The accused person is brought or arraigned in court, where the charge is read to them,
and they are required to plead.
 Pleading can include various approaches, such as pleading guilty, pleading not guilty,
asserting lack of jurisdiction, giving a legal opinion, or raising a plea based on a
previous conviction, acquittal, or presidential pardon.

What are the 9 possible pleas one can take in answer to a charge

 Guilty: The defendant admits to the charge and accepts responsibility for the alleged
offense.
 Not guilty: The defendant denies the charges and asserts their innocence. They request a
trial to prove their lack of guilt.
 Guilty subject to plea agreement: The defendant admits guilt but does so based on a
negotiated agreement with the prosecution, often involving reduced charges or a
recommended sentence.
 Refuses to plead: Sometimes referred to as "standing mute," the defendant refuses to
enter a plea, which usually results in the court entering a plea of not guilty on their behalf.
 Previously convicted: The defendant asserts that they have already been convicted of the
same offense, either in the same jurisdiction or elsewhere, which could raise issues of
double jeopardy.
 Previously acquitted: The defendant argues that they have been previously acquitted of
the same offense, meaning they were previously found not guilty.
 Presidential pardon: The defendant claims to have been granted a pardon by the
President of the country, which may absolve them of the charges.
 Court has no jurisdiction: The defendant contests the authority of the court to hear the
case, claiming that the court lacks jurisdiction over the matter.
 Defective charge: The defendant argues that the charge against them is flawed or invalid,
either due to technical errors or legal deficiencies.

What is the difference between equivocal and unequivocal pleading?

Equivocal pleading refers to a plea that is unclear or ambiguous, while unequivocal pleading
means a plea that is clear and unambiguous.

What happens if a plea is equivocal?

If a plea is equivocal and not clear, the court will record the plea as "not guilty."

Can an involuntary or deceptive plea be considered equivocal? A3: Yes, an involuntary or

plea reached through deception is also considered equivocal, and in such cases, the court
must enter a plea of "not guilty."

Can you provide an example of a case where an equivocal plea led to a "not guilty"
plea?

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In the case of Lusit vs. Republic, Lusit initially pleaded guilty to a charge of burglary and
stealing. However, during the mitigation phase, he claimed that he did not break into the
house but rather opened it with a key. Since his intention was unclear, the plea was entered as
"not guilty."

What constitutes an unequivocal plea?

An unequivocal plea is one that is properly taken according to the legal procedures and is
clear in its admission of guilt. Only an unequivocal plea of guilty binds the accused person.

What are the principles governing the taking of an unequivocal plea?

The principles for taking an unequivocal plea, as set out in the case of Adan vs. R (1973),
include ensuring the accused is fit to plead, allowing the accused to plead directly (not
through an advocate), reading and explaining the charge to the accused, ensuring the charge
is not defective, properly recording the plea, and having a competent judicial officer take the
plea.

What happens if the accused pleads not guilty?

If the accused pleads not guilty, they are denying the charges and putting all essential
elements of the offense in dispute. The court then proceeds to hear the complainant,
witnesses, and other evidence presented by the prosecution.

What are the conditions for entering a plea of not guilty?

The court enters a plea of not guilty when the accused does not admit the charge, does not
admit the statement of facts, or refuses to plead.

What is the plea of Autrefois Acquit or Convict?

The plea of Autrefois Acquit or Convict allows an accused person to plead that they have
been previously convicted or acquitted of the same offense or have obtained a presidential
pardon. If these pleas are denied, the court will try whether the plea is true or not.

What is the significance of the rule against double jeopardy?

The rule against double jeopardy, as stated in Section 138 of the Criminal Procedure Code,
prevents an accused person who has already been tried and convicted or acquitted of an
offense from being tried again on the same facts for the same offense, unless certain
exceptions apply.

Can you provide an example of a plea in bar of an indictment or charge?

A plea in bar is a plea that bars the other party's action entirely. For example, a plea based on
the statute of limitations would be a plea in bar that, if established, would destroy the action.

What follows if an accused person pleads guilty?

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When an accused pleads guilty what follows is that there will be another session for
sentencing to be issued by the court.
But also remember before sentencing there is that session for mitigation whereby the accused
person will be told to you know make any statements or address the court before the
particular sentence is issued by the court.

There will be something we call our victim impact assessment whereby our victim is given an
opportunity to also address the court and raise anything they like to raise before the
sentencing is passed. The reason being sometimes accused persons can raise issues at the
country consider maybe if they are the sole bread winner,

Also impact from victims are very important, if a victim decides to you know forgive an
accused person then the court will not be very harsh in its sentencing. But if a victim is very
harsh and has asked for the maximum punishment then the court definitely take that into
consideration. So in between pleading guilty and sentence Ng Please remember this that you
know there are those statements or addresses that are made from the accused person to the
court and also from the victim to the court.

What follows if an accused person pleads not guilty?

Once an accused person has pleaded not guilty now the burden of proof shifts to the
prosecution whereby the prosecution is required to establish their case and explain to the
court whether they have a case against the accused person.

So, this is where the prosecution now begins the examination of its witnesses that is
examination in chief, then the defence counsel for the accused will cross examine their
witness and finally the prosecution will re-examine its own witnesses.

Pardon, Adr & Plea Bargaining

What is the concept of a pardon?

A pardon refers to the exercise of the power of mercy by the president, granted in accordance
with the advice of the Power of Mercy Advisory Committee (POMAC). It can involve
granting a free or conditional pardon, postponing or substituting punishment, or remitting part
or all of the punishment for a convicted person.

Who has the power of mercy in Kenya?

The power of mercy is vested in the president of the Republic of Kenya, as per Article 133(2)
of the Constitution of Kenya 2010. It is exercised through the Power of Mercy Advisory
Committee (POMAC), with the Attorney General serving as the Chairperson.

What is the role of the Power of Mercy Advisory Committee (POMAC)?

POMAC considers petitions for presidential clemency from convicted criminal prisoners,
taking into account the views of the victims of the crimes committed by the petitioners. The
committee advises the president on matters of mercy or pardon, but a successful petition does
not imply an acquittal.

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What is plea bargaining?

Plea bargaining refers to negotiations conducted between the accused person and the
prosecutor with the aim of reaching a plea agreement.

What is a plea agreement?

A plea agreement is a written document between the prosecution and the accused person. It
involves the accused person agreeing to be convicted of one or more offenses, while the
prosecution agrees not to proceed with other charges, withdraws other charges, or reduces the
charge.

What is the rationale for plea bargaining in a criminal justice system?

The rationale for plea bargaining includes helping the interest of justice and reducing the case
log for the court, saving time for the prosecution, decongesting prisons, allowing for remorse,
reducing resources used in the court process, aiding justice in line with constitutional
provisions, ensuring certainty, offering the possibility of a lighter sentence, protecting the
accused from public outrage, and considering cost-benefit analysis.

What are the alternatives to prosecution within the criminal accountability system?

The alternatives to prosecution include administrative measures, reconciliation, mediation,

compensation, and plea bargaining. These alternatives aim to provide different avenues for
resolving criminal accountability, instead of solely relying on the traditional prosecutorial
system.

What are plea negotiations?

Plea negotiations are conducted between the accused person and the prosecutor with the aim
of entering a plea agreement. These negotiations can involve reducing a charge to a lesser
offense or withdrawing/staying other charges.

What are the general principles for plea negotiations?

The prosecutor should act openly, reasonably, and fairly in the interests of the administration
of justice. The accused person should be informed of their rights, have sufficient information
to make an informed decision, enter negotiations voluntarily, and have a record of the plea
negotiations. The plea agreement should reflect the agreed-upon matters clearly.

What are the rules of plea bargaining?

 Communication: The prosecution must communicate the date, time, and venue of the plea
bargaining session to both the accused person's representative and the complainant.
 Informed Decision: During plea bargaining, the accused must be informed of the
proceedings and understand the potential effects of the negotiations, such as charge
reduction or amendment, and its implications on sentencing.
 Documentation: All discussions and agreements during plea bargaining must be recorded
in writing or through tape recording to avoid disputes later on.

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 Controlled Sessions: The plea bargaining sessions should be conducted in the presence of
the prosecution, the accused person, a probation officer, and the complainant or their
representative.
 No Payments: No payments or financial incentives should be made during the plea
negotiation process to prevent corruption.
 Professional Environment: The plea bargaining negotiations should take place at the
Director of Public Prosecutions (DPP) office or the prosecutor's office to ensure a
professional and transparent environment.
 Capital Offences: Plea agreements for capital offences require the written approval of the
Director of Public Prosecutions (DPP) before they can be forwarded to the court. For
other crimes, the agreement can be entered into and signed by parties and submitted to the
court without the DPP's prior approval. However, the Constitution encourages alternative
dispute resolution (ADR) mechanisms, including plea negotiations, for all cases.

How are plea negotiations initiated?

Plea negotiations can be initiated by the Office of the Director of Public Prosecutions
(ODPP), the accused person, or the accused person's counsel. However, plea negotiations can
only occur after a person has been formally charged before the court, and private
prosecutions require the consent of the ODPP.

What happens if there is a failure to notify the ODPP in private prosecutions?

In the case of Mary Kinya Rukwaru v ODPP & Another (2016), failure to notify the ODPP in
a private prosecution led to the court setting aside any negotiations conducted. The ODPP is a
crucial stakeholder in the plea negotiation process.

How are negotiations conducted?

Before entering plea negotiations, the prosecutor considers the evidential test and the public
interest test. The prosecutor should consult with the victim(s) and the investigating
officer/body during negotiations. However, plea negotiations are excluded for sexual offenses
under the Sexual Offenses Act, as well as for crimes of genocide, crimes against humanity,
and war crimes, which are considered particularly egregious.

Does the court participate in plea negotiations?

No, the court does not participate in plea negotiations or plea bargaining. The court cannot be
privy to the negotiations to ensure a fair determination during the trial.

How are factual differences resolved before entering a plea agreement?

Before entering a plea agreement, any factual differences should be resolved before the court.
This involves constructing a proper narrative with both the prosecution and the accused
person, ensuring any factual uncertainties are conclusively determined within the agreement.

Can a plea agreement be terminated?

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Yes, plea agreements can be terminated by either party, and the reasons for termination
should be set out in writing. Termination may occur due to factors such as the death of the
accused person or other reasons outlined in the ODPP plea bargaining guidelines.

What is the role of witnesses and victims in plea negotiations?

Victims should be consulted during plea negotiations, but their consent does not dictate
whether the ODPP can enter into a plea agreement. The victim's input is meant to inform the
process, and their absence (in the case of murder) may involve consultation with the victim's
family. Section 137D of the CPC requires consultation with the victim, investigating officer,
and accused person.

What must a plea agreement contain?

According to the ODPP Guidelines on Plea Bargaining, a plea agreement must contain the
agreed charges, a statement of the facts, a declaration of acceptance and admission of guilt by
the accused person, a declaration of voluntary entry into plea negotiations, and a
recommendation on sentencing. If applicable, it may also include a compensation clause and
involve the complainant's legal representative.

How can a plea agreement be terminated?

Plea agreements can be terminated due to factors such as fraud, misrepresentation, coercion,
or withdrawal of a guilty plea by the court. If the court rejects the agreement or if the accused
person withdraws their guilty plea before sentencing, the agreement can also be terminated.

What confidentiality obligations apply to failed plea agreements?

Parties involved in failed plea agreements are bound by confidentiality regarding the facts
disclosed during negotiations. This obligation facilitates full and frank disclosure during the
process, as stated in guidelines 8A and 8B of the ODPP guidelines on bargaining.

Can plea negotiations be conducted with minors or individuals of unsound mind?

No, plea negotiations cannot be conducted with minors or individuals of unsound mind.
Competent persons, who are of sound mind, of the age of majority, and capable of free will,
are the appropriate participants in plea negotiations.

What happens when a plea agreement involves a reduction of charges to a lesser

offense?

When a plea agreement involves a reduction of charges to a lesser offense, the accused
person is convicted of the lesser offense. For example, if the original charge was murder,
through plea negotiations, the accused person may agree to be convicted of manslaughter
instead.

Is a sentence passed through a plea agreement appealable?

A sentence passed by the court through a plea agreement is generally final, and no appeals lie
from it except as to the extent or legality of the imposed sentence. Appeals related to the

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legality of the sentence are permitted, but appeals challenging the conviction or factual
circumstances surrounding the crime are generally not allowed under the law.

How are plea agreements recorded?

: Plea agreements are recorded by the court in accordance with Section 137F of the CPC.
Before recording the plea agreement, the accused person is placed under oath, and the court
personally addresses the accused person, informing them of their rights. The plea agreement
document is signed by the prosecution, the accused person, and possibly the complainant.

What is the role of the court in presenting a plea agreement?

The court plays a crucial role in presenting a plea agreement. The magistrate or judge must be
aware of the facts of the case. The document is presented by the prosecutor, who informs the
court about the plea agreement, its date, and the signatures of the parties involved. The court
then proceeds to personally address the accused person, ensuring their understanding of the
plea agreement and their rights.

What is required for the court to record a plea agreement?

To record a plea agreement, the court must address the accused person personally, place them
under oath, and inform them of their rights as outlined in Section 137F(1) of the CPC. The
court must also ensure that the accused person understands the nature of the charges, the
potential penalties, any forfeitures or compensation orders, and the waiver of the right to
appeal except for the legality of the sentence.

How does the court record the factual basis of the plea?

Once the accused person pleads guilty, the prosecution presents the factual basis contained in
the plea agreement. The prosecution explains the factors considered during plea bargaining,
the dropped charges, and the rational basis for each item in the agreement. The court records
these details in accordance with Section 137H of the CPC.

What happens when the court accepts a plea agreement?

When the court accepts a plea agreement, it enters the factual basis of the plea on record, and
the agreement becomes binding on the prosecutor and the accused. The plea agreement also
becomes part of the court's record. The court then proceeds to convict the accused person
accordingly.

Can a sentence passed through a plea agreement be appealed?

Generally, a sentence passed through a plea agreement is final, and no appeal is allowed
except as to the extent or legality of the imposed sentence. However, the Director of Public
Prosecutions or the accused person may apply to the court to have the conviction and
sentence set aside on the grounds of fraud or misrepresentation, as stated in Section 137L(2)
of the CPC.

What happens when the court accepts a plea agreement?

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When the court accepts a plea agreement, it must record the factual basis of the plea, which
includes the facts informing the plea. The plea agreement becomes binding on the parties and
forms part of the court record, as stated in Section 137H(1)(a) of the CPC. The case of Alvin
Kamande Njenga & Another v Republic supports this.

What happens in the case of a rejection of the plea agreement?

If the court rejects the plea agreement, the entire document presented before the court
becomes null and void, and the proceedings giving rise to it become inadmissible in
subsequent or future trials relating to the same facts. The court may have various reasons for
rejection, such as contravention of public interest, insufficient consideration of the victim, or
inadequacy in reflecting the accused person's culpability. The decision to reject the plea
agreement is recorded by the court, and parties are informed accordingly. The rejection
prevents further negotiations or agreements in respect to the same matter, and no appeal or
review can be pursued for an order rejecting a plea agreement, as specified in Section 137J of
the CPC.

What is the process of withdrawing a plea?

An accused person may withdraw a plea of guilty at any time before the court accepts the
plea. If the court has already accepted the plea agreement and entered a conviction but
sentencing has not yet occurred, the accused person may still request to withdraw the plea.
However, in this case, the accused person must provide a fair and just reason for requesting
the withdrawal. This process is governed by Section 137K of the CPC.

What is the overview of Alternative Dispute Resolution (ADR) in Kenya's Criminal

Justice System?

Kenya's Criminal Justice System is primarily adversarial and retributive, focusing on

litigation to resolve disputes. However, there has been a global shift towards non-judicial
methods of dispute resolution due to the rigidity, time-consuming nature, and high costs
associated with litigation. ADR methods provide a more flexible, cost-effective, and time-
saving approach to resolving disputes, preserving relationships, and preventing unnecessary
imprisonment of certain individuals, such as children, vulnerable persons, and first-time
offenders for petty offences.

What are the benefits of ADR in criminal litigation?

ADR methods offer flexibility, cost-effectiveness, and time-saving advantages over

traditional litigation processes. They can help in reducing backlog in the courts and allow the
Director of Public Prosecutions (DPP) to focus on serious offences. ADR also promotes
reconciliation, amicable resolution, and diversion for juvenile offenders, ensuring the best
interests of the child are considered. By utilizing ADR, unnecessary imprisonment can be
avoided for individuals who may benefit from alternative resolutions outside the criminal
justice system.

Can ADR be used in criminal matters in Kenya?

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While ADR is commonly used in civil litigation, the scope of ADR in criminal matters in
Kenya is a subject of debate. The Alternative Dispute Resolution Bill 2021 aims to extend
ADR to criminal matters, including diversion and arbitration, but its enactment is pending.
The use of diversion for child offenders is one example of ADR being employed in criminal
cases.

What is the role of the court in dealing with pleas of Autrefois Acquit and Autrefois
Convict?

When an accused person raises a plea of Autrefois Acquit or Autrefois Convict (pleas of
former acquittal or former conviction), the court must not take it at face value. The court is
required to interrogate the plea and ascertain the truth of the claim. The accused person is
expected to provide the proceedings of the court, such as the record of acquittal or conviction,
or a presidential pardon certificate if applicable. The court will adjourn the proceedings to
allow for the examination of these documents, and it is the accused person's responsibility to
prove the facts related to their acquittal, conviction, or pardon. It's important to note that a
pardon does not remove a criminal record; the person remains a convict even with a pardon.

What is the difference between plea bargaining and a plea?

Plea bargaining is the process of negotiating a plea agreement between the prosecution and
the defense, where the accused agrees to plead guilty to certain charges in exchange for
concessions from the prosecution. A plea, on the other hand, is the formal admission of guilt
by the accused in court, either in response to the charges during the trial or as part of a plea
agreement.

When is the most appropriate time for an advocate to engage in a plea bargain?

An advocate should engage in a plea bargain after thoroughly scrutinizing the evidence,
witness statements, and the entire prosecution file. This includes evaluating the weight of
evidence against the client and considering possible defenses. The decision to enter into a
plea bargain can be made at any time before the judgment is made, depending on the analysis
of the evidence and the client's best interests.

What is the rule of evidence relating to confessions?

As a general rule, confessions by an accused person are inadmissible in court unless they are
made before a police officer of the rank of inspector of police or before the court. Section 25
of the Evidence Act defines a confession as comprising words or conduct from which an
inference may reasonably be drawn that the person making it has committed an offense.
However, confessions must be proven by other facts beyond just the words or conduct of the
person confessing.

How does the court handle confessions, and are they considered as evidence?

Confessions made during the taking of a plea can be used against the accused during plea
discussions. If a confession is made during the trial process but not explicitly stated as a
confession for the court to record, it will be regarded as any normal statement made during
the trial. However, if one co-accused confesses, the co-accused has the right to examine and

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question the confessing accused. The court will not solely rely on the confession by a co-
accused; there must be other evidence corroborating the confession. If one of two co-accused
takes a plea deal, the remaining accused must have their case heard by a different magistrate
or judge.

What are the preparations involved for the defense and prosecution before the pre-trial
conference?

 Defense: The defense should carefully analyze the evidence, weight of evidence, and
possible defenses. This involves obtaining and reviewing the police file, preparing
witnesses, analyzing the duty of disclosure, and considering the need for a plea. The
defense can choose not to call witnesses or exercise the right to keep silence, as the
burden of proof lies with the prosecution.
 Prosecution: The prosecution should evaluate the evidence, consider the evidential and
public interest tests, review exhibits and witnesses, assess competence and capability of
witnesses, examine the admissibility of privileged information, and ensure credibility and
legality of evidence. The prosecution should constantly review the case, liaise with the
investigation officer, protect vulnerable witnesses, and fulfill the duty of disclosure.
Note: The preparation process may vary, but it is crucial for advocates to have a ready file,
understanding of the law, reviewed witness statements, and prepared responses and
witnesses.

Pre Trial-Conferencing

What is the legal basis for meeting accused persons before arraignment, and what is the
purpose of these meetings?

The legal basis for meeting accused persons before arraignment is provided in Article 49(1)
(c) and Article 50(2)(c-g, h) of the Constitution, as well as Section 193 of the Criminal
Procedure Code. The purpose of these meetings is for the advocate to gather information
about the case, explain the charges and possible pleas to the accused, advise on their rights
and options, discuss possible defenses, address confidentiality and fees, and prepare for
further analysis and investigation.

When is a plea considered unequivocal, and what happens if the accused refuses to take
a plea?

A plea is considered unequivocal when it is either guilty or not guilty. If the accused refuses
to take a plea, a plea of not guilty will be entered on their behalf, and it will have the same
effect as if they had pleaded not guilty. The trial process will then proceed.

What is an equivocal plea?

 Equivocal plea- where the defendant pleads guilty but says something contradictory that
indicates a defence.
 An equivocal plea refers to a plea entered by a defendant in a criminal case that is
uncertain or ambiguous. It occurs when the defendant's plea does not clearly indicate
whether they are pleading guilty or not guilty to the charges brought against them. Instead
of providing a definite admission or denial of guilt, an equivocal plea leaves room for
doubt or uncertainty regarding the defendant's position.

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 When a defendant enters an equivocal plea, the court may not accept it and may require
the defendant to clarify their plea. The court seeks to ensure that the defendant fully
understands the charges against them and the consequences of their plea. This
clarification is crucial for the proper administration of justice and the fair resolution of the
case.
 If the defendant fails to clarify their plea and continues to provide an equivocal response,
the court may enter a plea of not guilty on their behalf. This is done to ensure that the case
proceeds in a clear and consistent manner, allowing for a fair trial and appropriate
adjudication of the charges.
 It is important for defendants to clearly communicate their plea, either guilty or not guilty,
to enable a fair and efficient legal process and uphold the principles of justice and due
process.

What is the legal basis for advocate-prosecution communication, and what information
can be shared during this communication?

The legal basis for advocate-prosecution communication is provided in Article 52(J) of the
Constitution. This communication allows the accused person's advocate to obtain any
information they need for the preparation of the defense case. The information that can be
shared includes statements made by the suspect or accused to the police, the charge sheet,
evidence to be relied upon by the prosecution, witnesses the prosecution intends to call, and
their witness statements.

What is the purpose of recording witness statements, and what are the rules for writing
such statements?

The purpose of recording witness statements is to provide a written record of the incident,
assist in planning the case, prevent witnesses from changing their testimony, and refresh the
witness's memory on the trial day. The rules for writing witness statements include using ink,
recording them as soon as possible, indicating page numbers, using simple language, signing
each page, making corrections appropriately, and avoiding erasures or overwriting errors.

What is the process for applying for witness statements, and what grounds can be used
for the application?

The defense can make an application for witness statements if they believe that the
prosecution has not fully disclosed all relevant statements or if there are inconsistencies and
contradictions in the statements already disclosed. The defense counsel will file a formal
application to the court, which may include supporting affidavits or legal arguments. The
court will consider the application and evaluate the relevance and necessity of the requested
witness statements for a fair trial. The court has the discretion to grant or deny the application
based on the merits of the case.

What is pretrial management, and why is it important?

Pretrial management refers to the process of managing and organizing the various aspects of
a case before the trial. It involves scheduling meetings, discussing the progress of the case,
addressing any developing matters, and ensuring that all necessary preparations are made.
Pretrial management is important to ensure that the case proceeds smoothly, that both the

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defense and prosecution are adequately prepared, and that all parties involved are aware of
the timeline and requirements leading up to the trial.

What is the legal basis for pre-trial management, and why is it important?

The legal basis for pre-trial management is found in Article 52 of the Constitution, which
guarantees the right of an accused person to have their trial begin and concluded without
unreasonable delay, as well as Article 159 of the Constitution, which provides for alternative
dispute resolution (ADR) and access to justice. Pre-trial management is important because it
allows for the efficient handling of cases, early identification of the real issues in dispute, and
the opportunity for ADR or plea bargaining.

What guidelines exist for pre-trial case management by the court, and what does it
involve?

The guidelines for pre-trial case management by the court can be found in the Guidelines
Relating to Active Case Management of Criminal Cases in Magistrate Courts and the High
Court of Kenya. Pre-trial case management involves the court actively managing the case by
giving directions specific to the needs of the case as early as possible. This includes
identifying the real issues in dispute, ensuring the disclosure of evidence, and addressing any
preliminary matters or necessary arrangements for the trial.

What is the purpose of disclosing evidence during the pre-trial stage, and what is the
legal basis for this requirement?

The purpose of disclosing evidence during the pre-trial stage is to eliminate ambush or
surprise at trial and ensure a fair trial for the accused person. The legal basis for this
requirement is found in Article 50(2)(j) of the Constitution, which guarantees the right of an
accused person to be provided with all evidence that the prosecution intends to rely on.
Additionally, Section 42A(1) of the Criminal Procedure Code emphasizes the duty of
disclosure to prevent surprises at trial.

What is the duty of disclosure for the prosecution, and does it apply to the defense as
well?

The duty of disclosure applies only to the prosecution, not the defense. The prosecution has a
duty to disclose all relevant material, including copies of witness statements, names of
witnesses to testify, and documentary exhibits, to the accused person in advance of the trial.
The duty of disclosure is continuous throughout the trial, and the prosecution must disclose
both inculpatory and exculpatory evidence, regardless of whether it weakens or strengthens
their case.

How has the duty of disclosure been interpreted by the Kenyan court, and what does it
require?

The Kenyan court has interpreted the duty of disclosure based on the Canadian decision in R.
v. Stinchcombe. The duty of disclosure requires the prosecution to disclose to the accused
person all evidence they intend to bring before the court in support of the charge, including
evidence they do not intend to use at trial. This duty extends to all statements, exhibits, and

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valuable evidence. The defense, on the other hand, is not under an obligation to assist the
prosecution or make reciprocal disclosure.

What is the significance of pre-trial disclosure in creating a fair and open society,
according to court decisions?

According to court decisions, pre-trial disclosure of material statements and exhibits is

significant in creating a fair and open society. It ensures that the element of surprise or
ambush by the prosecution in a criminal trial is eliminated, allowing for a democratic and
transparent legal system. The defense should not be ambushed or caught off guard during
trial, and the prosecution has a duty to disclose all relevant material to promote a fair trial and
prevent unfair surprises.

What are the exceptions to the duty of disclosure of evidence by the prosecution?

The exceptions to the duty of disclosure of evidence by the prosecution are outlined in
Section 42A(2) of the Criminal Procedure Code. These exceptions apply in proceedings
under specific acts such as the Prevention of Terrorism Act, the Narcotic Drugs and
Psychotropic Substances (Control) Act, the Prevention of Organized Crimes Act, the
Proceeds of Crime and Anti-Money Laundering Act, and the Counter-Trafficking in Persons
Act. With the leave of the court, the prosecution may not disclose certain evidence on which
it intends to rely until immediately before the hearing. This exception applies when the
evidence may facilitate the commission of other offenses or when it is not in the public
interest to disclose such evidence.
Does the duty of disclosure apply to the defense as well?

No, the duty of disclosure applies only to the prosecution and not to the defense. The general
rule is that the defense has no duty of disclosure. However, there are exceptions to this rule,
such as under Section 9(1) of the Victim Protection Act and when the defense has raised a
defense of alibi. These exceptions may require the defense to disclose certain information.

What are the advantages of pre-trial conferencing?

Pre-trial conferencing offers several advantages, including limiting necessary adjournments

and interlocutory applications, promoting the expeditious determination of cases without
undue delay, ensuring that evidence is presented in a clear and concise manner, and
improving the quality of the trial through thorough preparation.

What are the contents that should be included in a witness statement?

A witness statement should include the date, time, place, full names, age of the person, and
the languages spoken by the person. If there is an interpreter, the name of the interpreter
should also be included.

Is alternative dispute resolution (ADR) commonly used in the criminal justice system?

ADR is limited in the criminal justice system, and its use is mostly seen in civil matters.
However, in cases involving property or money, there may be instances of asset seizure, asset
forfeiture, or asset return as forms of ADR. The extent to which ADR is allowed in criminal

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cases, such as murder, may vary and require further research to determine the current position
in different jurisdictions.

What is the legal framework for the right to a fair trial?

The legal framework for the right to a fair trial is established in the Kenyan Constitution.
Article 50(1) guarantees every person the right to have a dispute decided in a fair and public
hearing before a court or an independent and impartial body. Article 50(2) outlines the
elements of a fair trial, including the presumption of innocence, being informed of the charge
with sufficient detail, having adequate time and facilities to prepare a defense, a public trial,
the right to be present during the trial, the right to legal representation, the right to remain
silent, the right to advance notice of the prosecution's evidence, the right to adduce and
challenge evidence, the right to refuse self-incrimination, the right to an interpreter, and
various other rights. The right to a fair trial is absolute and cannot be limited.

What is the significance of Article 50(3) of the Constitution?

Article 50(3) of the Constitution guarantees the right of the accused person to be given
information in a language that they understand. This ensures that the accused can
comprehend the proceedings and actively participate in their defense.

What is the impact of Article 50(4) of the Constitution on evidence in a trial?

Article 50(4) of the Constitution states that evidence obtained in a manner that violates any
right or fundamental freedom shall be excluded if its admission would render the trial unfair
or be detrimental to the administration of justice. This provision ensures that evidence
obtained through unlawful or improper means is not admissible in court and protects the
integrity of the trial process.

Can a convicted person request a new trial? Under what circumstances?

Yes, a convicted person may petition the High Court for a new trial under Article 50(6) of the
Constitution. To qualify for a new trial, two conditions must be met: (a) the person's appeal
has been dismissed by the highest court to which they are entitled to appeal, or the person did
not appeal within the allowed time, and (b) new and compelling evidence has become
available. This provision allows for the possibility of a fresh examination of a case if new
evidence emerges that could potentially affect the outcome.

What international instrument also guarantees the right to a fair and public hearing?

Article 14 of the International Covenant on Civil and Political Rights (ICCPR) guarantees the
right to a fair and public hearing in the determination of a criminal charge. This provision,
similar to Article 50 of the Kenyan Constitution, emphasizes the importance of a competent,
independent, and impartial tribunal in the administration of justice.

What is the purpose of examining witnesses in criminal proceedings?

The purpose of examining witnesses in criminal proceedings is to elucidate the facts of the
case by questioning witnesses. This process involves parties or their lawyers posing questions

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to witnesses in order to present their version of the facts to the judge or trier of fact. The
examination is conducted in a manner that allows the more effective adversary to persuade
the trier of fact that their version of the facts is correct.

What are the different types of examination of witnesses?

The different types of examination of witnesses are defined under Section 145 of the
Evidence Act. They include:
 Examination in chief: This is the initial questioning of a witness by the party who called
them. It is intended to elicit the witness's testimony and present their version of events.
 Cross-examination: This occurs when the opposing party questions a witness who has
already given evidence during the examination in chief. The purpose of cross-
examination is to challenge or clarify the witness's testimony and expose any
inconsistencies or biases.
 Re-examination: After cross-examination, the party who called the witness may have the
opportunity to ask additional questions to clarify or re-emphasize certain points raised
during cross-examination. Re-examination is limited to matters arising out of cross-
examination.

What is the process of summoning and examining witnesses in criminal proceedings?

The process of summoning and examining witnesses in criminal proceedings is outlined in

the Criminal Procedure Code (CPC). Section 150 of the CPC grants the court the power to
summon or call any person as a witness, examine any person present in court even if not
summoned as a witness, or recall and re-examine a person already examined if their evidence
is essential to the just decision of the case.
Additionally, Section 154 of the CPC allows for the issuance of a commission to take the
evidence of a witness who cannot be present in court due to reasonable delay, expense, or
inconvenience. The commission is issued by the High Court or a magistrate empowered to
hold a subordinate court of the first class.

What is perjury?
Perjury refers to the act of knowingly providing false information or lying while under oath
or affirmation. It occurs when a witness, after taking an oath or affirmation, makes a
statement that is material to the proceedings and is false or not believed to be true. Perjury is
an offense under Section 108 of the Penal Code.

Can a witness who sat in court during other testimonies still provide evidence?

Yes, a witness who sat in court while other testimonies were given can still provide evidence.
In the case of Waithaka v R, it was held that the evidence of a witness should not be rejected
solely because they were present in court during the testimony of other witnesses. However,
the weight attached to their evidence may be affected by this factor. The court should still
allow the witness to testify, but the significance given to their testimony may be influenced
by their presence during other testimonies.

What is the examination in chief and what are its rules?

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Examination in chief is the initial questioning of a witness by the party who called them. The
rules for examination in chief include:
 Leading questions: Generally, leading questions (questions that suggest the answer)
are not allowed during examination in chief, except when the witness is unfavourable
or has difficulties in recollecting the events. Permission from the court is required to
ask leading questions during examination in chief.
 Refreshing memory: A witness who has difficulties in recalling the events can refresh
their memory by referring to a former written statement they made. However, the
witness cannot be asked about former statements made by them unless for the purpose
of refreshing their memory.
 Production of contemporaneous writing: If a witness refers to a writing made by
themselves or another person to refresh their memory, the writing must be produced
and shown to the adverse party if requested. The writing can be used to impeach the
witness's credibility or show consistency or inconsistency.

What are the rules of previous consistent statements?

Under Section 165 of the Evidence Act, previous consistent statements made by a witness
may be used to show that their testimony is consistent. However, the general rule at common
law was that a witness could not be asked in chief about their former consistent statements.
Exceptions to this rule include instances where the witness is a complainant in sexual
offences, to rebut allegations of fabrication, on accusations, or related to previous
identification of the accused person. Cross-examination can be used to question the witness
about previous consistent statements to impeach their credibility.

What is cross-examination and what are its general rules?

Cross-examination is the questioning of a witness by the opposing party after their
examination in chief. The general rules of cross-examination include:
 Limited scope: Cross-examination should be limited to matters raised during the
examination in chief.
 No asking of unknown answers: The cross-examiner should not ask a question if they
don't know the answer.
 Avoiding inadmissible evidence: Cross-examination should not be based on
inadmissible evidence or confessions.
 Hearsay rule: Answers given in cross-examination should not be based on hearsay.
 Avoidance of indecent or scandalous questions: Cross-examination should not include
indecent or scandalous questions.
 Avoidance of insulting or annoying questions: Cross-examination should not include
questions that are needlessly offensive or insulting.
 Aggressiveness and hostility: A cross-examiner can be aggressive and hostile towards
the witness, but it should be done in a manner that is effective and not unnecessarily
badgering.
 Leading questions allowed: Leading questions (questions that suggest the answer) are
allowed during cross-examination.
 Collateral facts: Answers given by a witness in cross-examination concerning
collateral facts are final and cannot be contradicted by other evidence, unless the facts
relate to witness bias, previous convictions, or inconsistent statements.

What is re-examination of witnesses?

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Re-examination is conducted after cross-examination and allows the party who called the
witness to explain any loopholes or inconsistencies that may have arisen during the cross-
examination. The scope of re-examination is limited to matters raised during cross-
examination.

Who are unfavourable and hostile witnesses?

Unfavourable witnesses are those who fail to come up with proof or provide evidence that is
unfavorable to the party calling them. Hostile witnesses are those who show no desire to tell
the truth at the instance of the party calling them or display hostile behavior.

What are the rules regarding unfavourable and hostile witnesses?

The general rule is that a party cannot attack the credibility of their own unfavourable
witness. However, with the leave of the court, a party may put questions to the witness that
could be asked during cross-examination by the adverse party. The party may also contradict
the witness by calling other evidence that supports their version of the facts, even if it is
inconsistent with the testimony of the unfavourable witness.

Who are refractory witnesses?

Refractory witnesses are those who refuse to cooperate or neglect their obligations in giving
evidence. This includes individuals who refuse to be sworn, refuse to answer questions,
refuse to produce required documents or things, or refuse to sign their deposition.

Who are expert witnesses?

Expert witnesses are individuals who possess expertise in a particular field and are qualified
to provide their opinion on matters requiring such expertise. Their opinions on relevant
matters are admissible as evidence. Non-expert witnesses may also provide their opinion on
matters not requiring particular expertise as a way of conveying their perception of facts.

What are the rules regarding minors giving evidence?

The competence of minors to give sworn evidence in criminal trials depends on their
understanding of the solemnity of taking an oath and their responsibility to tell the truth. In
Kenya, the competence of minors to give sworn evidence is governed by Section 124 of the
Evidence Act. However, corroboration is only necessary when a child gives unsworn
evidence, as stated in Johnson Mwiruri v R.

What is the rule for the production of exhibits in a trial process in Kenya?

Exhibits are anything other than testimony that can be perceived by the senses and presented
at a trial. They can include tangible objects, documents, pictures, or other items relevant to
the case. The statutory basis for exhibits is the Evidence Act, the Civil Procedure Rules, and
the Criminal Procedure Code.

What does the Evidence Act say about statutory exhibits?

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The Evidence Act provides that only evidence of the existence or non-existence of a fact in
issue shall be given in any suit or proceeding. It outlines the admissibility of documentary
evidence, the production of statements made under special circumstances, the use of primary
and secondary evidence, and the admissibility of photographic evidence.

What does the Criminal Procedure Code say about statutory exhibits?

The Criminal Procedure Code specifies that all evidence taken during a trial must be taken in
the presence of the accused person or their advocate, unless otherwise provided. It outlines
the procedure in trials before subordinate courts and in High Court trials, including the order
of presenting the case for the prosecution and the accused.

What is the procedure for introducing exhibits in a trial?

The procedure for introducing exhibits typically involves marking the exhibits with numbers
or letters, showing them to the opposing party and advocate, approaching the witness for
identification, laying the foundation and relevance of the exhibits, moving the court for
admission of the exhibits as evidence, and giving the exhibits unique numbers or letters for
formal introduction in the case. Exhibits should be physically produced in court unless it is
impossible to do so.

What is a trial within a trial?

A trial within a trial is an inquiry into the manner in which a statement made by an accused
person in respect to the case was recorded. It is conducted to determine the voluntariness of
the statement. The voluntariness of a confession is tested when there is retraction or
repudiation of the confession. The onus of proving the voluntariness of a retracted statement
lies with the prosecution, and the court must satisfy itself of the truth of a repudiated or
retracted confession before relying on it for a conviction.

What happens at the close of the prosecution's case?

At the close of the prosecution's case, the judge reviews the evidence presented and
determines whether there is a prima facie case against the accused. If the evidence is
sufficient to establish a prima facie case, the accused is required to put forth a defense. If the
evidence is deemed insufficient, a finding of no case to answer may be made, resulting in the
case being dismissed and the accused declared not guilty.

What are the two possible outcomes of the close of the prosecution's case?

The two possible outcomes are a finding of no case to answer or a finding of a case to
answer. If there is no case to answer, the accused is declared not guilty, and the case is
dismissed. If there is a case to answer, the accused is required to present their defense.

What are submissions of "No Case to Answer" and "Case to Answer"?

Submissions of "No Case to Answer" and "Case to Answer" refer to the evaluations and
analyses of the evidence and law made by each party in criminal litigation. These
submissions are presented orally or in writing and involve arguments regarding the

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sufficiency of the evidence to establish a prima facie case against the accused. They can be
presented orally or in writing.

What is the legal basis for submissions of "No Case to Answer"?

The legal basis for submissions of "No Case to Answer" is Section 210 of the Criminal
Procedure Code (CPC) in Kenya. This section empowers the court to acquit the accused if it
finds that there is no evidence that, if accepted, could prove the commission of the offense
charged. The test is whether a reasonable tribunal, properly directed, could convict the
accused on the evidence adduced.

What is the legal basis for submissions of "Case to Answer"?

The legal basis for submissions of "Case to Answer" is Section 211 of the CPC. This section
states that if, after considering the evidence, the court is of the opinion that there is a prima
facie case against the accused, the defense must be called upon to provide an explanation or
defense. The court evaluates whether there is a case fit for the accused to answer, without
delving into the merits of the case.

What happens at the close of the prosecution's case?

At the close of the prosecution's case, the judge reviews the evidence presented and
determines whether there is a prima facie case against the accused. If there is no case to
answer, the court dismisses the case and acquits the accused. A written determination
detailing the reasons for dismissal and discharge must be provided.

What is the case for the defense?

Once a prima facie case has been established, the court must explain the substance of the
charge to the accused. The accused or their advocate may open their case, give evidence on
their own behalf, examine their witnesses, and make closing statements. If the accused does
not intend to give evidence or make a statement, the prosecution may sum up the case against
the accused.

What is the procedure for the close of the hearing?

Once the case on both sides is closed, the judges give judgment. If the accused is convicted,
the judges pass a sentence according to the law. If the accused is acquitted, a finding of "Not
guilty" is entered. The accused may present any mitigating circumstances, and the court may
consider a victim impact statement during sentencing.

What are final submissions?

Final submissions, also known as closing arguments, are the persuasive stage at trial. They
address the theme and theory of the case, reinforce points made in the opening statement,
discuss the application of the law, and seek a favorable verdict for the client. They can
involve using visual aids, rhetorical questions, analogies, and effective communication
techniques.

What is the difference between written submissions and oral arguments?

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There is a controversy surrounding whether written submissions or oral arguments are
preferred. The presiding officer may expect to orally hear submissions, while the accused's
express consent may be required for written submissions. The choice between written and
oral presentations may vary depending on the specific case and circumstances.

What are the key things to consider when drafting and preparing legal briefs?

When drafting and preparing legal briefs, it is important to consider the following key things:
 Emphasize facts over the law.
 Use plain English instead of legalese.
 Prioritize reason over authority.
 Maintain ethical and civil writing.
 Develop a persuasive and cohesive theme.
 Consistently reinforce your themes throughout the argument.
 Be concise and focus on important points.
 Avoid excessive repetition.
 Understand the court's interests and biases.
 Make your writing interesting and engaging.
 Ensure readability in your briefs.
 Strive for a lean and concise brief.
 Consider the importance of what is included as well as what is excluded from the brief.

Why should lawyers be fastidious with their use of language?

Lawyers should be fastidious with their use of language because language is the central tool
of their trade. It is crucial for interpreting statutes, construing the constitution, and presenting
arguments. Careful use of language maintains the effectiveness and clarity of the law.
Whether arguing a case, drafting legislation, or interpreting the law, precision in language
helps capture the intended meaning and aids in persuading judges and providing clear
explanations.

Why is it important what judges write?

It is important what judges write for several reasons:

 Their opinions are used by other lawyers and judges to understand and apply the law.
 Opinions explain what the law is.
 Poorly written opinions can lead to confusion and misunderstandings, hindering the
proper interpretation and application of the law.
 Lawyers rely on opinions to advise clients and ensure compliance with the law.
 Opinions serve as precedents for future cases, and clarity is essential in setting legal
standards and resolving disputes.

What are the good qualities of writing a brief?

The good qualities of writing a brief include:

 Investing effort and attention to detail.
 Understanding the audience, including their inclinations and biases.
 Developing a persuasive theme and consistently applying it.

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 Using only necessary information to make your point.
 Keeping the writing simple, clear, and concise.
 Avoiding legalese and Latin phrases that may be less persuasive.
 Focusing on the strongest issues rather than burying them in weaker arguments.
 Avoiding unnecessary repetition.
 Organizing the brief logically to present a coherent line of reasoning.
 Ensuring accuracy in citations and references.
 Including relevant and pertinent facts without resorting to disparaging the other side.
 Avoiding personal attacks and maintaining a respectful tone.
 Providing a clear context and framework for the facts and arguments.
 Citing binding precedent effectively.
 Assisting the court by attaching useful documents if applicable.
 Clearly stating the relief or remedy sought from the court.
 Ending the brief promptly after making your point.

What are the techniques of persuasion in legal writing?

The techniques of persuasion in legal writing include:

 Presenting facts in a compelling yet balanced manner.
 Incorporating relevant legal authority to support arguments.
 Appealing to equitable principles and establishing credibility.
 Making a strong and knowledgeable first impression in oral arguments.
 Demonstrating impeccable writing skills.
 Using powerful introductions and opening sentences.
 Providing context and a roadmap for the case.
 Presenting the crux of the case early on.
 Being concise and avoiding lengthy sentences and paragraphs.
 Omitting unnecessary words and adjectives.
 Giving a persuasive factual background.
 Developing a common theme throughout the brief.
 Remaining faithful to the facts and avoiding misrepresentation.
 Thoroughly researching and applying the law.
 Addressing rival arguments and acknowledging weaknesses.
 Strategically using headings and subheadings.
 Ensuring accurate and up-to-date citations.
 Anticipating and addressing counterarguments.
 Making strategic concessions when necessary.
 Using footnotes effectively but not hiding important points within them.

Pre And Post Sentencing Proceedings

What is a judgment?

A judgment is the final determination made by a judge in a case, taking into account relevant
laws and circumstances and meeting the required standard of proof. It is a written explanation
by the judge that should be honest, respectful, persuasive, clear, and memorable, providing
the legal basis for the decision.

What are the rules for a valid judgment?

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Some rules for a valid judgment, as stated by Justice Lee Muthoga, include:
 Expressing the judgment clearly and accurately.
 Communicating the judgment in a simple and clear manner.
 Persuading the parties, especially the losing side, that the determination is fair.
 Setting out the conclusions and results based on the governing law applied to the facts.
 Properly expressing the reasoning behind the judgment.

What are the essential components of a judgment?

The essential components of a judgment include:

 Name of the case.
 Opening statement that clearly states the offense or issue at hand.
 Summary of the prosecution's evidence.
 Summary of the defense's case.
 Identification of the issues for determination.
 Analysis of the applicable laws.
 Court's decision and the reasons behind it.
 Paragraph on non-compliance with procedure, if applicable.
 Closing statement and order, specifying the final outcome of the case.

Why is the signature on a judgment important?

The signature on a judgment is crucial because it validates the judgment. According to the
case of Lokwacharia v. Republic, an unsigned judgment rendered by the High Court was
considered invalid by the Court of Appeal. The signature confirms that the judgment was
pronounced and delivered by the presiding officer in open court at the time of its issuance.

What is the process of drafting a judgment?

Drafting a judgment involves careful deliberation on the facts and evidence presented during
the case. The judge needs to consider what is important and relevant to the case, summarize
the relevant issues, analyze the submissions made by both parties, and accurately reproduce
them in the judgment. It can be a challenging task, especially in complex cases. After the
proceedings, a specific date is set for the judgment to be pronounced or it may be issued on
notice. The judgment is then pronounced and explained to the parties involved, and a notice
is given to inform them of the judgment's content.

What are victim impact statements?

Victim impact statements are statements made by the victim or, in cases of incapacitation, the
victim's representative under section 29A of the Criminal Procedure Code and the Victim
Protection Act. These statements provide information about the psychological, emotional,
physical, economic, or social impact of the offense on the victim. They are made after the
conviction of the perpetrator and before sentencing, giving the court insight into the impact of
the offense on the victim and their family.

When can victim impact statements be considered?

Victim impact statements can be considered at the court's discretion, as decided in the case of
Wekesa Tobias Wanjala Kalenda v. Republic. Section 329A(a) of the Criminal Procedure

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Code allows the court to receive and consider victim impact statements after conviction but
before sentencing. The statements can be made by either the primary victim or the family of
the victim.

What is the purpose of victim impact statements?

The purpose of victim impact statements is to provide the court with information about the
impact of the offense on the victim and their family. It helps the court understand the
personal harm suffered as a result of the offense and assists in determining an appropriate
sentence for the offender.

Can an accused person be absent during the judgment?

According to the Criminal Procedure Code, when an accused person is in custody, they must
be present in court to hear the judgment being delivered. However, there are exceptions
where the personal attendance of the accused during the trial has been dispensed with. This
usually applies when the sentence is only a fine or when the accused is acquitted.

Can a judgment be issued without a signature?

No, a judgment must be signed by the presiding officer in open court at the time of
pronouncing the judgment. The signature confirms the validity and authenticity of the
judgment. In the case of Lokwacharia v. Republic, the Court of Appeal held that the absence
of a signature from one of the judges rendered the judgment from the High Court invalid.

What is the difference between aggravation and mitigation in criminal sentencing?

Aggravation in criminal sentencing refers to factors that increase the severity of the
punishment imposed for a crime. Mitigation, on the other hand, involves factors that decrease
the penalty or punishment imposed by law for the offense committed.
How do aggravating factors affect the length of a sentence?

Aggravating factors in a criminal case can lead to an increase in the severity of the sentence.
For example, if an offense involves multiple victims, affects national security, or includes the
use of dangerous weapons, the court may impose a harsher penalty.

What are some examples of aggravating circumstances in the Kenyan jurisdiction?

Examples of aggravating circumstances in Kenya include offenses committed against

vulnerable groups, repeated assaults on the same victim, use of weapons to cause harm, and
circumstances that have adverse psychological or physical effects on the victim. A previous
conviction may also be considered as an aggravating factor.

How do courts consider mitigating circumstances in sentencing?

Courts consider mitigating circumstances to reduce the severity of the sentence. Examples of
mitigating circumstances in Kenya include showing remorse, being a first-time offender,
pleading guilty at the earliest opportunity, and playing a minor role in the offense.

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In practical terms, how does the community protection aspect work in criminal
sentencing?

Community protection in criminal sentencing is achieved through the imposition of lengthy

sentences, particularly for offenders who have committed serious or violent crimes. By
locking away such offenders, the community is protected from potential harm, ensuring
public safety. Additionally, courts may consider imposing probation orders, community
service orders, or rehabilitation programs to address the underlying causes of criminal
behavior and reduce the risk of reoffending.

What are the principles of sentencing recognized in Kenya?

The principles of sentencing recognized in Kenya include proportionality, equality,

uniformity, impartiality, consistency, accountability, transparency, inclusiveness, respect for
human rights and fundamental freedoms, and adherence to domestic and international law.

What are the recognized sanctions in Kenya for criminal offenses?

Recognized sanctions in Kenya for criminal offenses include death penalty (although there is
an ongoing moratorium), imprisonment, community service orders, probation orders, fines,
payment of compensation, forfeiture of assets, finding security to keep the peace and be of
good behavior, restitution, police supervision, and commitment to rehabilitation centers.

Can you explain the case of Francis Karioko Muruatetu v. Republic and its impact on
sentencing?

In the case of Francis Karioko Muruatetu v. Republic, the mandatory death sentence for
certain crimes was declared unconstitutional in Kenya. The court held that rigid sentencing
guidelines limit the court's ability to consider mitigating factors and individual circumstances,
which goes against the principles of fairness. The court emphasized the importance of
atonement and giving individuals an opportunity to make amends and become better citizens
rather than being permanently deprived of that chance. This decision allows the court to
exercise more discretion in sentencing, taking into account individual circumstances and
promoting a more balanced justice system.

Can you explain the case of Julius Gitau Maneso v. Republic and its impact on
sentencing?

In the case of Julius Gitau Maneso v. Republic, the court held that mandatory life
imprisonment was declared unconstitutional in Kenya. The court argued that individual
circumstances can change over time, and life imprisonment may not always be appropriate
for an offense committed. The court emphasized the importance of providing individuals with
an opportunity to atone for their offenses and reintegrate into society. As a result of this
decision, the court can impose prison sentences for a specified number of years instead of
mandatory life imprisonment, considering the nature and severity of the offense and the
offender's individual circumstances.

Who are the parties involved in the sentencing process?

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The parties involved in the sentencing process are the prosecution, probation and children's
officers, defense, and the victim.

What is the role of the prosecution during the sentencing process?

The prosecution's role during the sentencing process is to bring to the court's attention any
aggravating or mitigating circumstances, including previous convictions of the offender.
They should also submit relevant provisions of the law and judicial precedents that should be
considered during sentencing.

What are the responsibilities of probation and children's officers in the sentencing
process?

The probation and children's officers provide accurate, objective, and reliable information to
assist the court in determining the most suitable sentence. They gather information from
various sources, such as the circumstances surrounding the offense, the offender's
background, previous criminal history, responsibilities in society, health status, and attitude
towards the offense.

What is the role of the defense during the sentencing process?

The defense plays a crucial role in the sentencing process by bringing to the court's attention
any mitigating factors or circumstances that would make a particular form of sentence
inappropriate. They also highlight any information that could have a bearing on the sentence,
such as the offender's commitment to restorative justice measures and rehabilitation efforts.

How does the victim participate in the sentencing process?

The victim has the right to submit their views on the appropriate sentence, including
expressing the impact of the crime and any resulting needs arising from it. The court is
obligated to hear the victim and consider their views on the sentence.

What happens during the sentence hearing?

During the sentence hearing, the court examines the information presented, seeks clarity on
all issues, and gives the offender an opportunity to cross-examine any adverse information. It
is an opportunity for the court to make an informed and appropriate sentencing decision.

What is the right to appeal in the context of criminal sentencing?

In general, any individual convicted of a criminal offense in a magistrate's court has the right
to appeal to the High Court. Appeals can be made on both matters of fact and matters of law,
with exceptions for certain cases, such as individuals who have pleaded guilty.

What are the principles to guide courts in the application for an extension of time for an
appeal?

The principles to guide courts in the application for an extension of time for an appeal
include:

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  The extension of time is an equitable remedy available at the court's discretion and
not an automatic right.
 The party seeking the extension must lay a basis to satisfy the court.
 The court should consider public interest in certain cases, such as election petitions.
 A reasonable reason for the delay, absence of prejudice to the respondent, and
bringing the application without undue delay are factors to be considered.

What powers does the High Court have when dealing with an appeal?

The High Court has the authority to summarily reject or allow an appeal. It can reassess the
evidence, evaluate it independently, and draw its own conclusions when acting as the first
appellate court, determining whether the trial court's judgment should be upheld or not.

How is an appeal made in the form of a written petition?

An appeal is made in the form of a written petition signed by the appellant or their advocate.
The petition must be accompanied by a copy of the judgment or order appealed from and
should contain the matters of law or fact that the trial court is alleged to have erred in. The
appellant's address of service should also be indicated.

What is the difference between judgement and sentencing ?

Judgment is the court's decision or ruling on guilt or innocence after considering all the
evidence and arguments presented during a trial. The judgment typically includes the court's
findings of fact, legal analysis, and application of the law to the case. It explains the reasons
for the court's decision and may involve the interpretation and application of relevant statutes,
case law, and constitutional principles.

While sentencing is the determination of the appropriate punishment for the convicted person
based on the judgment and other relevant factors. It involves deciding the type and duration
of the punishment that the convicted person should receive based on the nature of the offense,
its gravity, and any relevant mitigating or aggravating factors. The sentencing process takes
into account various factors, such as the seriousness of the crime, the defendant's criminal
history, the impact on the victim, and any potential for rehabilitation.

Compare a confession and an admission

In simple terms, an admission is a statement made by any party in a legal case that suggests a
fact relevant to the issue at hand. It can be formal, made in the pleadings, or informal, made
before or during the proceedings.

On the other hand, a confession is a specific type of admission made by an accused person
before a judge, magistrate, or police officer (rank of Inspector or higher). It is a statement in
which the person admits to committing an offense.

Explain the difference between a Retracted and repudiated confession

A retracted confession occurs when the accused person admits that he made the confession
but now seeks to recant or take back generally what he said on the ground that he had been

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forced or induced to make the statement (the statement was not a voluntary one). Repudiated
on the other hand is a statement that an accused avers that he never made.

What is a difference between ruling and judgment in criminal matters?

In criminal matters, the terms "ruling" and "judgment" refer to different aspects of the legal
process and have distinct meanings:

A ruling in criminal matters generally refers to a decision made by a judge or presiding

officer during the course of the trial or pre-trial proceedings. It can pertain to various
procedural or evidentiary matters and may not necessarily determine the guilt or innocence of
the accused. Some examples of rulings in criminal cases include:
 Ruling on the admissibility of evidence: The judge may decide whether certain
evidence, such as witness statements or physical objects, can be presented in court as
evidence against the accused.
 Ruling on motions: Parties in a criminal trial may file motions, which are formal
requests for the court to take specific actions or make decisions on certain matters.
The judge may rule on these motions, either granting or denying them.
 Ruling on objections: During the trial, attorneys may object to certain questions or
statements made by the opposing side. The judge will rule on these objections, either
allowing or disallowing the particular line of questioning or evidence.
 Ruling on bail: In pre-trial proceedings, the judge may decide whether to grant or
deny bail to the accused based on factors like flight risk or danger to the community.
A judgment in criminal matters refers to the final decision or outcome of the trial, where the
court determines the guilt or innocence of the accused. It is the formal pronouncement of the
court's decision after considering all the evidence and arguments presented during the trial.
The judgment typically includes the court's findings of fact, legal analysis, and application of
the law to the case. It will state whether the accused is found guilty or not guilty of the
charges brought against them. If the accused is found guilty, the judgment will also specify
the sentence or punishment imposed.

What is the law and rules on confessions and admissions?

In Kenya, the law and rules regarding confessions and admissions in criminal law are
primarily governed by the Evidence Act. The relevant sections of the Evidence Act that
pertain to confessions and admissions are Sections 24 to 30. Here is an overview of the key
provisions:
Confessions (Section 25):
 Section 25 of the Evidence Act defines a confession as words, conduct, or a
combination of both, from which an inference may reasonably be drawn that the
person making it has committed an offense.
 A confession must be voluntary and not obtained through inducement, threat, or
promise of any kind. If a confession is obtained involuntarily, it may be excluded as
evidence.
 A confession made by an accused person before a police officer, other than the
investigating officer, is not admissible in court unless it is made in the immediate
presence of a Magistrate or is recorded in writing and signed by the accused.

Admission (Section 17):

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  Section 17 of the Evidence Act defines admission as a statement, oral or written, that
suggests any reference to a fact in issue or a relevant fact and is made by any of the
parties.
 An admission can be made before or during the proceedings and can be used against
the party who made it as evidence.
 There are two types of admissions: formal and informal.
o Formal admissions are usually made in the pleadings, where a party admits
certain facts related to the case.
o Informal admissions may be made during the proceedings, such as during
testimony or during discussions between parties.

Cautionary Rules (Section 27):

 Section 27 of the Evidence Act lays down cautionary rules to be followed by the court
when dealing with confessions and admissions.
 The court should ensure that the confession or admission was made voluntarily and
was not influenced by any improper means.
 The court should warn itself of the danger of convicting an accused person based
solely on a confession, especially when there is no other evidence to support it.
It is essential to note that confessions and admissions are treated differently in criminal
proceedings. While a confession is considered an acknowledgment of guilt and is typically
made by an accused person, an admission is a broader concept that can be made by any party
involved in the case. The court evaluates both confessions and admissions carefully, ensuring
they are voluntary and not the result of coercion or inducement, before considering them as
evidence in the trial.

How are criminal proceedings terminated?

In Kenya, criminal proceedings can be terminated through various legal mechanisms and
circumstances. Some common ways criminal proceedings may be terminated include:
1. Acquittal: When the court finds the accused not guilty of the charges brought against
them, they are acquitted, and the criminal proceedings against them are terminated.
2. Discharge: If, during the trial, the prosecution fails to present sufficient evidence to
support the charges, the court may discharge the accused, resulting in the termination
of the criminal proceedings.
3. Withdrawal of Charges: The prosecution has the discretion to withdraw the charges
against the accused at any stage of the proceedings before a judgment is delivered.
This can lead to the termination of the case.
4. Plea Bargain: In some cases, the prosecution and the defense may negotiate a plea
bargain, where the accused agrees to plead guilty to a lesser charge or admit to certain
facts in exchange for a reduced sentence or lighter punishment. If the court accepts
the plea bargain, the criminal proceedings may be terminated.
5. Death of the Accused: If the accused person dies during the course of the trial, the
criminal proceedings will be terminated.
6. Lack of Jurisdiction: If the court finds that it lacks the legal authority or jurisdiction to
hear the case, the criminal proceedings may be terminated.
7. Appeal: If the accused or the prosecution successfully appeals the verdict or
judgment, the higher court may overturn the decision of the lower court, leading to the
termination of the original criminal proceedings.

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 8. Non-appearance of Witnesses: If crucial witnesses fail to appear in court, the
prosecution may be unable to proceed with the case, leading to the termination of the
criminal proceedings.
It is essential to note that the termination of criminal proceedings does not necessarily mean
that the accused is declared innocent. In some cases, the termination may be due to
procedural issues, lack of evidence, or other factors that prevent the case from proceeding to
a conclusion.

Extradition cases

What is extradition proceedings ?

Extradition proceedings are a legal process between countries where they cooperate to arrest
and prosecute criminals who have committed crimes in one jurisdiction but belong to another
jurisdiction. It involves one country requesting the surrender or transfer of an individual
wanted for prosecution, sentencing, or serving a sentence, to another country where the
alleged crime took place. The process ensures that individuals involved in cross-border
criminal activities can be apprehended and transferred for legal action.
During extradition proceedings, specific legal requirements must be followed, and the
process typically involves several stages. Countries can assist each other through existing
treaties and legislation, such as the Extradition Continuous Act, which enables certain
jurisdictions to handle requests for extradition.
The Attorney General usually files a miscellaneous application, typically in the form of a
notice of motion, to initiate the extradition process in Kenya. Extradition allows the return of
a person who has come to Kenya after being charged with a crime to the country where they
have been charged with the offense. It is important to distinguish extradition from
deportation, which involves the expulsion of a person from a country for various reasons
unrelated to criminal offenses.

Who gets the extradition order?

In Kenya, the authority responsible for issuing an extradition order is the Attorney General.
As the principal legal advisor to the government, the Attorney General represents the interests
of the state in legal matters, including extradition requests. When a foreign country seeks to
extradite an individual from Kenya, they initiate the process by submitting a formal
extradition request through diplomatic channels. The Office of the Attorney General reviews
the request to ensure its validity and compliance with Kenyan law and any relevant
extradition treaties or agreements.
If the Attorney General finds the extradition request to be legally sound, an extradition order
is issued. This order authorizes the arrest and detention of the individual sought for
extradition and commences the formal legal proceedings in Kenya.
It's important to note that the procedures and authorities involved in extradition proceedings
can vary depending on the country and its legal framework. Therefore, seeking legal advice
or consulting relevant laws and regulations is essential in specific extradition cases.

What are the extradition documents?

 Extradition Request: This is a formal document submitted by the requesting state to the
Kenyan government through diplomatic channels. It provides essential details of the case,

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 such as the charges against the individual, supporting evidence, and the legal basis for the
extradition request.
 Extradition Warrant: After the extradition request is reviewed and approved by the
Kenyan authorities, an extradition warrant may be issued. This warrant authorizes the
arrest and detention of the individual sought for extradition.
 Extradition Order: The extradition order is issued either by the Attorney General or a
court of law in Kenya. This order grants the legal authority for the extradition process to
proceed and serves as the basis for the arrest and transfer of the individual to the
requesting state.
 Supporting Documents: In addition to the formal extradition documents, various
supporting materials may be included as part of the extradition request. These supporting
documents can include arrest warrants issued by the requesting state, affidavits, witness
statements, expert reports, and any other relevant evidence or documentation related to
the case.
These extradition documents play a crucial role in ensuring a well-founded and legally sound
extradition process between countries. They facilitate the proper handling of extradition
requests and help ensure that individuals involved in cross-border criminal activities are
brought to justice in the respective jurisdictions.

What role does the director of public prosecutions (DPP) play in extradition cases?

In extradition cases, the DPP has the authority to institute and proceed with the prosecution
for extradition. The first letter request is sent to the attorney general, who then sends
authority to proceed to the DPP. The DPP drafts the notice of motion with a supporting
affidavit and a warrant of arrest. The role of the attorney general is to receive the requests and
forward them to the DPP, as the DPP has the authority to prosecute in extradition cases.

Explain extradition cases:

In the case of DPP v Chrysanthus Barnabas Okemo & 4 Others, the authority to proceed with
extradition proceedings in Kenya was transferred from the Attorney General to the DPP. The
DPP receives the extradition request, which includes a warrant of arrest, charge sheet,
relevant laws, and factual basis. While the Attorney General remains the central authority for
mutual legal assistance, the DPP is a competent authority for extradition cases.
Safeguards for defective charges:
1. Section 89(5) of the Criminal Procedure Code allows the court to reject defective
charges.
2. The High Court can exercise its judicial review powers under Article 165(3) of the
constitution.
3. The High Court can intervene under Article 47 of the constitution, which protects the
right to fair administrative action.

What is the three strike principle?

The "three strike" principle, also known as "three strikes law," is a legal sentencing policy
that imposes stricter penalties on repeat offenders. It is typically applied in criminal litigation
and aims to deter individuals who have committed multiple serious offenses.
Under the three-strike principle, a person who has been convicted of a serious offense for the
third time faces enhanced penalties, often including longer prison sentences or mandatory

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minimum sentences. The specific criteria and application of the three strike principle can vary
depending on the jurisdiction and the laws in place.
The principle is based on the belief that repeat offenders pose a greater threat to society and
should face harsher consequences to protect public safety. By imposing more severe penalties
for subsequent offenses, it is intended to deter individuals from committing further crimes.
It's important to note that the three strike principle has been subject to criticism and debate.
Some argue that it can lead to disproportionately long sentences, overcrowding in prisons,
and potential injustices in cases where the offenses may not warrant such severe penalties.
Others contend that it serves as an effective deterrent and helps keep repeat offenders off the
streets.
The implementation and details of the three strike principle can vary significantly between
jurisdictions, as it is a policy that is established and enforced through legislation or judicial
decisions specific to each jurisdiction.

What is restorative justice

Restorative justice is a system of criminal justice which focuses on the rehabilitation of

offenders through reconciliation with victims and the community at large.

What is watching brief and what role does a defence counsel take in watching brief for
their client ?

A watching brief in legal terms refers to a situation where a lawyer or counsel represents a
victim in a criminal case, ensuring that the victim's interests are protected throughout the
proceedings. The role of the defense counsel in a watching brief is primarily observatory,
focused on safeguarding the victim's rights and ensuring the proceedings progress smoothly.
This concept is provided for under the Victim Protection Act, which has expanded the
traditional parameters of a victim's role in a criminal case.
The defense counsel with a watching brief collaborates with the prosecution to establish a
strong case against the accused person. However, their level of involvement during the trial is
limited, and they cannot actively participate in the proceedings as they would in a regular
defense role. Instead, they must comply and cooperate with the prosecution in line with the
provisions of the Victim Protection Act.

The defense counsel in a watching brief has specific areas of involvement during the trial,
including:
 Expressing the victim's views and concerns at various stages, particularly during the
victim impact assessment just before sentencing. This allows them to advocate for the
victim's interests and ensure their voice is heard during crucial stages of the case.
 Participating in plea bargaining, where they have a role in deciding whether the proposed
plea agreement will have a positive impact on their client's life concerning the sentence
that will be imposed on the accused person.
Overall, the primary responsibilities of the defense counsel in a watching brief are to observe
the proceedings closely to protect their client's interests, cooperate with the prosecution,
actively engage in plea bargaining negotiations, and ensure that any address made to the court
before sentencing aligns with the best interests of their client, the victim.

What are capital offences?

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 Capital offences like murder can only be heard by the High Court and not in other courts.
Murder cases are strictly for the High Court you can never hear a murder case being heard
by Magistrates Court or subordinate court.

 Murder
 Treason
 Terrorism

Ways of terminating a case under criminal law

 Acquittal: An acquittal occurs when the court finds the accused not guilty of the charges
brought against them. It can happen if the prosecution fails to prove the elements of the
offense beyond a reasonable doubt or if the court determines that the evidence does not
support a conviction.
 Discharge: A discharge happens when the court decides to terminate the case before it
proceeds to trial. This can occur at any stage of the proceedings if the court finds that
there is insufficient evidence to proceed or if there are procedural irregularities that render
a fair trial impossible.
 Withdrawal of Charges: The prosecution may decide to withdraw the charges against
the accused. This can happen if new evidence emerges that weakens the case, if the
prosecution determines that it is not in the public interest to proceed, or if there are other
considerations that warrant the withdrawal of charges.
 Plea Bargain: A plea bargain is a negotiated agreement between the prosecution and the
accused where the accused agrees to plead guilty to a lesser offense or to certain charges
in exchange for a reduction in the severity of the punishment. If a plea bargain is accepted
by the court, the case will be resolved based on the agreed-upon terms.
 Dismissal: The court may dismiss a case if there are procedural defects, such as
violations of the accused's rights or other irregularities that warrant the dismissal.
Dismissal can also occur if the prosecution fails to present sufficient evidence or if there
is an abuse of the legal process.
 Conviction: A case may be terminated through a conviction if the court finds the accused
guilty of the charges beyond a reasonable doubt. A conviction leads to sentencing and the
imposition of penalties or sanctions.

crim + civil
Explain Prima facie case in civil in criminal.
 Prima facie in Civil Law: In civil law, a prima facie case refers to the presentation of
evidence that, if accepted as true, would be enough to establish a legal claim or cause of
action. It demonstrates that the party asserting the claim has sufficient evidence to
proceed with the case and has met the initial burden of proof. However, the opposing
party has the opportunity to present evidence to challenge or refute the prima facie case.
 Prima facie in Criminal Law: In criminal law, a prima facie case is often used during the
preliminary stages of a criminal prosecution. It signifies that the prosecution has
presented enough evidence to establish a "probable cause" that the accused committed the
crime and justifies further proceedings. It does not mean that the accused is presumed
guilty, but rather that there is enough evidence to warrant a trial or further investigation.

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 The defense has the opportunity to challenge the prima facie case and present contrary
evidence to establish reasonable doubt.
 In summary, a prima facie case in both civil and criminal law represents the initial
evidence or arguments that, if accepted as true, would support a claim or charge. It
signifies that there is enough evidence on the face of it to proceed further, but it does not
constitute a final determination of guilt or liability.

Explain Burden of proof in criminal and civil cases?

In both criminal and civil cases , the burden of proof refers to the responsibility or obligation
placed on the parties to present evidence and persuade the court about the truth of their claims
or assertions. However, the burden of proof differs in criminal and civil cases.
 Criminal Cases: In criminal cases, the burden of proof lies with the prosecution. The
prosecution has the duty to prove the guilt of the accused beyond a reasonable doubt.
This means that the prosecution must present sufficient and convincing evidence to
eliminate any reasonable doubt in the minds of the judge or jury about the accused's
guilt.
The accused in a criminal case is presumed innocent until proven guilty. They do not have
the burden to prove their innocence; instead, they have the right to remain silent and not
present any evidence. If the prosecution fails to meet the high standard of proof beyond a
reasonable doubt, the accused must be acquitted.
 Civil Cases: In civil cases, the burden of proof usually lies with the plaintiff (the party
bringing the case). The plaintiff is required to prove their case on a balance of
probabilities. This means that they must establish that it is more likely than not that
their version of events is true.
In civil cases, both parties have the opportunity to present evidence to support their claims.
The defendant (the party being sued) can also present evidence to counter the plaintiff's
claims. The judge or jury will then weigh the evidence presented by both parties and decide
which version of events is more probable.
If the plaintiff fails to meet the burden of proof on a balance of probabilities, their case may
be dismissed. On the other hand, if the plaintiff successfully meets the burden of proof, the
court may rule in their favor.
In summary, in criminal cases, the prosecution must prove the accused's guilt beyond a
reasonable doubt, while in civil cases, the plaintiff must prove their case on a balance of
probabilities. The burden of proof is higher in criminal cases, reflecting the seriousness of
potential penalties, including imprisonment or fines, while in civil cases, the burden is lower,
as the consequences typically involve compensation or damages..

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CONVEYANCING

What is conveyancing and what does it involve?

 Conveyancing is the transfer of rights in property from one person (A) to another person
(B).
 It specifically relates to land or interests in land.
 Conveyancing includes more than just drafting and registering documents; it also
involves modifying titles and performing involuntary transfers, such as sales by
mortgagees.
 The critical elements of conveyancing are the process, legal title, and transfer or
modification of interests.

Who is a conveyancer and what is their role?

 A conveyancer is a qualified professional or specialist lawyer retained by parties
involved in a transaction to handle paperwork and finances.
 They can represent either the buyer or the seller, or even act for both parties in a
transaction.
 A conveyancer must be qualified according to the Court of Appeal's decision in the
case of Anaj Warehousing v National Bank of Kenya Limited.

How does conveyancing relate to other areas of law?

 Conveyancing is closely connected to land law, contract law, equity and trusts,
succession law, and company law.
 Land law provides the subject matter for all conveyancing transactions and defines
rights and liabilities of landowners.
 Contract law is involved as any transfer of land must be preceded by a sale agreement.
 Equity and trusts come into play due to the distinction between legal and equitable
interests in land.

What is the scope of conveyancing and what procedures does it cover?

 The scope of conveyancing covers various procedures for land transactions, including
leases, mortgages, charges, transfers, and other related transactions.
 Conveyancing involves different stages of a transaction, from preliminary information
to completion and registration of documents.

How is land unique as property?

 Land plays a central role in the production process, especially in agro-based
economies.
 Multiple interests can exist concurrently in the same land, such as the owner's title and
the rights of leaseholders.
 The government retains ultimate title to land, allowing for compulsory acquisition for
public purposes.
 Land can be conceptualized both vertically and horizontally, including airspace above
and the core of the land.
 Land is virtually indestructible, though it may be subject to waste.
 Land gives rise to mutual rights and obligations between adjacent properties, such as
the right to support or access to light.

What is defensive conveyancing and what does it involve?

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  Defensive conveyancing involves protecting clients from negligence claims, fraud,
and criminal acts during transactions.
 Conveyancers need to exercise caution and ensure they represent their clients'
interests diligently.

What is eminent domain?

Eminent domain, also known as compulsory acquisition, is the legal authority granted to
governments or authorized entities to take private property for public use. This power
allows the government to acquire land, real estate, or other assets owned by private
individuals or corporations, even against the property owner's will. The main purpose of
eminent domain is to facilitate infrastructure development, public projects, and other
initiatives that benefit the general public.
When exercising eminent domain, the government or authorized entity must provide just
compensation to the property owner. The "just compensation" refers to fair market value
for the property being taken, ensuring that the property owner is adequately compensated
for their loss. The concept of just compensation is derived from the "Takings Clause" of
the Fifth Amendment to the United States Constitution, which states that private property
shall not be taken for public use without just compensation.
The use of eminent domain is a significant exercise of governmental power, and it is
subject to various legal safeguards and limitations to protect the rights of property
owners. While it is generally used for projects that benefit the public, disputes may arise
between property owners and the government over the necessity of taking the property or
the amount of compensation offered. Property owners have the right to challenge eminent
domain actions in court to ensure that they receive fair treatment and appropriate
compensation.

How may interests in land pass without formal methods of conveyancing?

 Adverse Possession: If someone possesses land for 12 years or more, with the owners
knowledge but without express permission, they can acquire legal title.
 Proprietary Estoppel: When a party relies on a promise or representation of an interest
in land and suffers detriment, equity may enforce the promise.
 Special Power of Attorney: Unregistered property can be conveyed through a special
power of attorney, which must be registered.
 Letter of Allotment: Transfers can also occur based on a letter of allotment, provided
certain conditions are met.

What are the key land laws in Kenya, and when did they come into force?
 The key land laws in Kenya are the Land Act 2012 and the Land Registration Act
2012.
 These laws were assented to by the President on April 27th and entered into force on
May 2nd, 2012.
 The purpose of the Land Act is to revise, consolidate, and rationalize the registration
of land titles, in accordance with the principles and objects of devolved government in
land registration and related matters.

What does the Land Act aim to achieve, and what does it govern?
 The Land Act aims to give effect to Article 68 of the Constitution, which mandates
the revision, consolidation, and rationalization of land laws in the country.

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  It provides for the sustainable administration and management of land and land-based
resources, including public and private land.
 The Land Act governs various aspects of land-related matters, such as land contracts,
leases, charges, compulsory acquisition, easements, and related rights.

What are easements?

It is an arrangement that allows an owner to use the adjoining land for the benefit of his land.
It is a right attached to or annexed to a land entitling an owner of a parcel of land to do
something on land that doesn’t belong to him, or prevents the owner from doing something
that may adversely affect an adjoining land. Therefore it could either be positive or negative.

It doesn’t vest any proprietary or possessory right. The parcels of land must be adjoining. It is
created by a deed of conveyance. Section 94 RLA. All parcels of land registered under RTA

What is the difference profits and easements?

The main difference between profits and easements lies in their nature and scope of rights.
Easements are non-possessory interests in another person's land that allow the holder certain
specific rights to use, restrict, or require actions related to the land. They are essentially
privileges without profit, typically involving rights of way, rights to light, or similar rights.
Easements always require the existence of a "dominant tenement" (the property benefiting
from the easement) and a "servient tenement" (the property burdened by the easement).

On the other hand, profits a prendre are the right to enter another person's land and take away
some product of the soil or produce from the servient tenement. Unlike easements, profits can
exist "in gross," which means the owner of the profit does not necessarily need to own any
adjoining or neighboring land. This allows the holder of a profit to go to the land of another
person to collect specific resources or products, even if they do not have a property directly
benefiting from it.

In summary, easements are non-possessory rights that grant specific privileges without profit,
requiring the existence of a dominant and servient tenement. Profits a prendre, on the other
hand, confer the right to take away products of the soil or produce from someone else's land
and can exist independently of any land ownership.

What is adverse possession?

In Kenya, the concept of adverse possession is governed by the Limitation of Actions Act and
other relevant laws. Adverse possession refers to the acquisition of ownership rights over a
property by occupying it openly, continuously, and without the permission of the true owner
for a specified period of time. To prove adverse possession in Kenya, the following elements
generally need to be established:
1. Actual Possession: The claimant must demonstrate that they have been in actual
physical possession of the property in question. This means they have physically
occupied and controlled the property.
2. Open and Notorious: The possession must be open and notorious, meaning it is
visible and evident to others, including the true owner. The claimant should not
attempt to conceal their occupation.

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 3. Exclusive Possession: The possession must be exclusive, meaning the claimant has
sole control over the property and excludes others from using or occupying it.
4. Continuous Possession: The claimant must demonstrate that they have continuously
possessed the property for a specific period of time, typically 12 years in Kenya. The
possession should not have been interrupted or abandoned during this period.
5. Adverse Intent: The claimant must show that their possession of the property was
adverse or hostile to the rights of the true owner. This means they occupied the
property without the owner's permission or consent.
6. Duration: The claimant must establish that they have possessed the property
continuously for the required statutory period, which is usually 12 years in Kenya.
7. Good Faith: In Kenya, some cases require the claimant to show that their possession
was made in good faith, meaning they genuinely believed they had a legal right to
possess the property.

What is a deed pole in conveyancing?

A "deed poll" is a legal document used for a specific purpose, such as a change of name. In
the context of conveyancing, a deed poll might be used when a party involved in the
transaction has changed their name, and they need to provide legal proof of the name change.
This can be important for ensuring the accurate transfer of property rights and maintaining a
clear chain of title.
For example, if a person changed their name due to marriage or for any other reason, they
might need to provide a deed poll as part of the conveyancing process to demonstrate the
change in their legal name.
To summarize, a "deed poll" is a legal document used to evidence a change of name and can
be relevant in conveyancing when a party involved in the property transaction has undergone
a name change.

What is compulsory acquisition in conveyancing ?

Compulsory acquisition in conveyancing refers to the legal process by which the government
or authorized authorities acquire private land or property for public use or development
purposes. This process allows the government to take possession of the property even if the
owner is unwilling to sell, subject to the payment of fair compensation to the landowner.
In Kenya, the Land Act of 2012 governs compulsory acquisition. Part VIII of the Land Act,
specifically Sections 107 to 126, provides for the procedures and requirements for
compulsory acquisition.
Key points of the compulsory acquisition process under the Land Act (2012) include:
 Public Purpose: The acquisition must be for a public purpose, such as building public
infrastructure, schools, hospitals, roads, or other development projects that serve the
public interest.
 Notice of Intention: The relevant authority, usually the National Land Commission
(NLC), must issue a Notice of Intention to acquire the land. This notice is published, and
the affected landowner has the right to make representations or objections within a
specified period.
 Assessment of Compensation: After considering any representations or objections, the
NLC will assess the compensation to be paid to the landowner. The compensation should
be fair and adequate, taking into account the value of the land, any improvements made,
disturbance costs, and other relevant factors.

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 Dispute Resolution: If there is a disagreement over the compensation amount, either
party can refer the matter to the Land and Environment Court for resolution.
 Notice to Take Possession: Once the compensation is agreed upon or determined by the
court, the acquiring authority will issue a Notice to Take Possession, granting them the
legal right to take possession of the land.
 Transfer of Title: The acquiring authority will then proceed to complete the transfer of
the land's title in its name.
 Payment of Compensation: The compensation must be paid to the landowner before or
at the time of taking possession of the land.
It is essential to follow the proper procedures outlined in the Land Act to ensure that the
landowner's rights are protected, and they receive fair compensation for their property. The
compulsory acquisition process aims to balance the public interest in development projects
with the protection of private property rights.

What types of land does the Land Act apply to?

 The Land Act applies to all land declared as: a) Public land under Article 62 of the
Constitution. b) Private land under Article 64 of the Constitution. c) Community land
under Article 63 of the Constitution and any other written law relating to community
land.

What are the values and principles of land management and administration under the
Land Act?
 The Land Act, in Section 4, sets out values and principles of land management and
administration that are binding on state organs, state officers, public officers, and all
individuals involved in enacting, applying, interpreting, or implementing the
provisions of the Act or making public policy decisions.
 These values and principles include equitable access to land, security of land rights,
sustainable and productive management of land resources, transparent and cost-
effective land administration, conservation and protection of ecologically sensitive
areas, elimination of gender discrimination related to land and property, and
encouragement of communities to settle land disputes through recognized local
community initiatives.

What forms of land tenure does the Land Act recognize?

 The Land Act recognizes the following forms of land tenure: a) Freehold, which
grants unlimited rights to use and dispose of land in perpetuity. b) Leasehold, which
provides exclusive possession of the land for a fixed period, such as 99 years. c)
Customary land rights, which are exercised within the framework of the Constitution,
including the elimination of gender discrimination and all forms of discrimination.

Explain the characteristics and differences between freehold and leasehold land.
 Freehold grants unlimited rights to use and dispose of land in perpetuity, allowing the
owner to sell the land and pass it on to their heirs.
 In case of the owner's death without a will or next of kin, the land reverts to the
government.
 Leasehold provides exclusive possession of the land for a fixed period, such as 99
years.
 A leaseholder does not have the right to sell the land but has exclusive possession
during the lease term.

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  Leasehold estates are not freehold and cannot be converted into freehold.

What are the methods of acquiring title to land under the Land Act?
 The Land Act, in Section 7, provides several methods of acquiring title to land,
including:
a) Allocation (Allotment) - This is when the government converts public land into
private land and grants leases to individuals through a legal process.
b) Land Adjudication Process - This process determines the rightful owner of land, and
after adjudication, registration and consolidation occur, and titles are issued by the
government.
c) Compulsory Acquisition - The government can acquire private or community land for
public purposes, subject to prompt payment of just compensation as per Article 40(3) of
the Constitution.
d) Prescription - Acquiring title through long, continuous, and uninterrupted use of
someone else's land, leading to the acquisition of an easement or other non-possessory
interests.
e) Settlement Programs - The government settles homeless individuals on land, granting
them title.
f) Transmissions - The passing of land, a lease, or a charge from one person to another by
operation of law on death or insolvency.
g) Transfers - Voluntary transfer of interest in land from one person to another.
h) Long-Term Leases Exceeding Twenty-One Years Created Out Of Private Land -
This method applies to properties with long-term leases, such as flats, where the owner
gets a sublease for 99 years.
i) Any Other Manner Prescribed In An Act Of Parliament - This includes methods
prescribed in specific legislation, such as matrimonial property laws.

How does allocation (allotment) work as a method of acquiring title to land?

 Allocation (allotment) is when the government converts public land into private land
and grants leases to individuals through a legal process.
 This process involves the county government or sometimes the national government
deciding to convert public land into private land and following a laid-down procedure
to grant leases to people.
What is land adjudication, and how does it lead to acquiring title to land?
 Land adjudication is a process where the rightful owner of land is determined.
 After adjudication, registration and consolidation occur, and individuals are registered
and issued titles by the government, confirming their ownership of the land.

What is compulsory acquisition, and how is it related to the Constitution?

 Compulsory acquisition is the acquisition of private or community land by the
government for public purposes.
 This process is mandated by Article 40(3) of the Constitution, which protects citizens
from deprivation of property for public purposes or in the public interest, with the
affected proprietor promptly compensated and having the right to seek legal redress.

How does prescription work as a method of acquiring title to land, and how does it
differ from adverse possession?
 Prescription involves acquiring usage rights for someone else's land over time, leading to
the acquisition of an easement or other non-possessory interests.

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 Unlike adverse possession, which focuses on acquiring ownership rights through
possession, prescription is about non-possessory rights gained through long, continuous,
and uninterrupted use.
 In prescription, a party needs to seek a court declaration for the acquisition of rights.

How can land be acquired through transmission, and what scenarios lead to
transmission of land?
 Land can be acquired through transmission when it is passed from one person to another
by operation of law on death or insolvency.
 Transmission occurs in situations such as inheritance when the land passes to heirs, or in
cases of insolvency, where the property is sold to recover debts, and the transfer is signed
by the creditor.

What is the significance of long-term leases exceeding twenty-one years created out
of private land?
 Long-term leases exceeding twenty-one years are significant for properties like flats,
where a developer purchases the land and puts up flats for sale.
 Buyers of the flats get a sublease of 99 years, granting them the rights to the property for
a long-term period.

What are the two approaches to defining land, and what does each approach
encompass?
 The two approaches to defining land are the Common Law approach and the
Constitutional approach.
 Common Law Approach: This approach to defining land includes more than just physical
elements like soil, grass, trees, and buildings. It involves the nature of the right involved
in land ownership, encompassing both corporeal hereditaments (e.g., ownership of a
house) and incorporeal hereditaments (e.g., right of way over someone else's house). The
two Latin maxims commonly used to express this approach are "Cuius est solum eius est
usque ad coelum et ad inferos," which means the landowner owns everything extending
to the heavens and depths of the earth with certain exceptions, and "Quicquid plantatur
solo solo cedit," which means whatever is attached to the land becomes part of the land.

How does the Latin maxim "Cuius est solum eius est usque ad coelum et ad inferos"
relate to land ownership, and what are its limitations in contemporary
jurisprudence?
 The Latin maxim "Cuius est solum eius est usque ad coelum et ad inferos" means that the
landowner owns everything extending to the heavens and depths of the earth, including
all things embedded in it and all things found in the airspace above and the geospace
below, along with any fixtures annexed to it even by strangers.
 However, this maxim has exceptions in contemporary jurisprudence. For example: a) The
landowner's right in the airspace is limited to what is reasonably necessary for the
ordinary use and enjoyment of the land. b) Ownership of minerals is vested in the national
government, as stated in Article 62(3) of the Constitution. c) Government-owned main
roads and water bodies also have exceptions.

How does the Latin maxim "Quicquid plantatur solo solo cedit" contribute to
defining land and fixtures?

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 The Latin maxim "Quicquid plantatur solo solo cedit" means that whatever is attached to
the land becomes part of the land. This maxim defines land by relating it to what is
affixed to it, including the surface, buildings, or parts of a building, and everything
attached to the land.
 The purpose of this principle is to ensure that a purchaser of land acquires the correct title
and ownership of something intended to pass with the land and to remedy situations
where a tenant aims to remove an item attached to the landlord's property.
 However, the maxim has limitations and exceptions, and two tests are employed to
distinguish fixtures from fittings: the degree of annexation and whether the object was
intended for the use or enjoyment of the land or for the more convenient use of the object
itself.

How does the Constitutional approach define land, and what does it encompass?
 The Constitutional approach, as stated in Article 260 of the Constitution of Kenya,
defines land to include: a) The surface of the earth and the subsurface rock. b) Any body
of water on or under the surface. c) Marine waters in the territorial sea and exclusive
economic zone. d) Natural resources completely contained on or under the surface. e) The
air space above the surface.
 This definition has been adopted in various legislations, such as the Land Act No. 6 of
2012, the Land Registration Act No. 3 of 2012, and the Environment and Land Court Act
No. 19 of 2011.

What is the classification of land under the Constitution, and what are the categories
of land it includes?
 Land in Kenya is classified as public, community, or private under Article 61 of the
Constitution.
 Categories of Land: a) Public Land: This includes land that was unalienated government
land, land lawfully held or occupied by any State organ, land transferred to the State, land
where ownership cannot be established, minerals and mineral oils, government forests,
water catchment areas, national parks, roads, water bodies, and more. b) Community
Land: This consists of land held by communities based on ethnicity, culture, or similar
community of interest. It includes land registered in the name of group representatives,
land transferred to specific communities, and ancestral lands. c) Private Land: This
includes registered land held under freehold or leasehold tenure and any other land
declared private land under an Act of Parliament.

What is the procedure for converting public land to private land?

Public land can be converted to private land through transfer by sale or allocation. For
example, internally displaced persons or squatters can be allocated public land and given
individual ownership.

How can private land be converted to public land?

Private land can be converted to public land through compulsory acquisition or transfer. The
government may acquire private land for public use, subject to proving public interest and
fair compensation to the landowner.

What are the rules of customary land tenure?

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Customary land tenure involves interlocking rights over communal land, with customary
authorities exercising broad communal rights, while specific groups or individuals may have
granted access and use rights. Customary land is not alienated to private ownership and is
often held collectively by communities.

What are overriding interests in land?

Overriding interests are rights recognized by law that take precedence over other interests,
whether or not they are registered in the Land Registry. Examples include trusts, rights of
way, natural rights of light, and rights of compulsory acquisition.

How does sectional title property work?

Sectional title property allows individual ownership of units within a development. It

involves dividing a building into units, with each owner having a certificate of title or lease
for their specific unit. The Sectional Properties Act governs sectional title property in Kenya.

Can a sectional title property be reverted back to the original state?

Yes, a sectional title property can be reverted back to the original state through termination.
The termination may occur through unanimous resolution, substantial or total damage to the
building, or compulsory acquisition. Once terminated, the owners of units become tenants in
common in proportion to their unit factors.

What do the principles of registration state regarding the ownership of land and
leasehold interests?

The principles of registration state that the registration of a person as the proprietor of land
vests absolute ownership in that person, along with all rights and privileges belonging or
appurtenant to the land. Similarly, registration of a person as the proprietor of a lease vests
the leasehold interest described in the lease, along with all implied and expressed rights and
privileges belonging or appurtenant to it.

What are the exceptions to the rights of a proprietor as per Section 25 of the Land
Registration Act?

The exceptions to the rights of a proprietor are when the title is obtained illegally or through
fraud, or when the set procedure for obtaining the title was not followed properly.

What are the goals of registration in land matters?

The goals of registration are as follows:

1. Security of tenure to provide transparent ownership of property.
2. Commercial confidence in transactions by ensuring the protection of title through
registration.
3. Reduction of litigation by conclusively establishing the site and owner of a land
parcel.
4. Preventing fragmentation of land, especially agricultural land, by controlling sales and
subdivisions.

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 5. Facilitating tax administration by enabling the government to identify landowners for
taxation purposes.
6. Administering loans more easily as security for lenders.
7. Aiding in zoning by allowing the government to manage and regulate land use.

What are the characteristics of a good registration system for land matters?

A good registration system should have the following characteristics:

1. Accuracy and reliability.
2. Simplicity for easy understanding and use.
3. Reasonable fees to make registration accessible to landowners.
4. Efficiency with widespread availability of land registries for quicker and convenient
registration.

Who are the parties involved in a property transaction, and what are their roles?

The parties involved in a property transaction and their roles are as follows:

a) Purchaser (Transferee or Incoming Proprietor): The person buying the property.

b) Vendor (Transferor or Registered Proprietor): The owner of the property being sold.
c) Lessee: The person who is leasing the property (tenant).
d) Lessor: The person who owns the property being leased (landlord).
e) Mortgagee: The lender who provides a mortgage loan to the purchaser.
f) Mortgagor: The borrower who pledges the property as security for the mortgage loan.
Other Professionals in the Transaction:
g) Estate Agents: Professionals involved in property sale, letting, and rental management.
h) Land Valuers: Professionals who determine the value of the property.
i) Architects: Professionals involved in property design and construction.
j) Land Registrar: A qualified advocate responsible for verifying and registering land-related
instruments.
k) Physical Planners: Professionals who plan and regulate land use and development.
l) Land Surveyors: Professionals who measure and map property boundaries and land
features.

What is a Power of Attorney in relation to property transactions, and what are the
different types of Power of Attorney?

A Power of Attorney is a legal document that grants authority to an attorney or agent to

manage and access the principal's property in case the principal is unable to do so themselves.
The different types of Power of Attorney are:
a) Specific Power of Attorney (Limited Power of Attorney): Grants the agent specific
authority to make particular legal or financial decisions on behalf of the principal.
b) General Power of Attorney (Ordinary Power of Attorney): Gives the agent broad authority
to handle various legal and financial matters on behalf of the principal.

What are overriding interests in land?

In Kenyan law, overriding interests in land are recognized and governed by the Land
Registration Act (LRA) 2012. Section 28 of the LRA sets out the specific overriding interests

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that take precedence over other interests in land, even if they are not registered. These
interests are binding on any subsequent buyers or mortgagees of the property.
Some examples of overriding interests under Kenyan law include:

 trusts including customary trusts;

 (rights of way, rights of water and profits subsisting at the time of first registration under
this Act;
 natural rights of light, air, water and support;
 rights of compulsory acquisition, resumption, entry, search and user conferred by any
other written law;
 charges for unpaid rates and other funds which, without reference to registration under
this Act, are expressly declared by any written law to be a charge upon land;
 rights acquired or in process of being acquired by virtue of any written law relating to the
limitation of actions or by prescription;
 electric supply lines, telephone and telegraph lines or poles, pipelines, aqueducts, canals,
weirs and dams erected, constructed or laid in pursuance or by virtue of any power
conferred by any written law

What constitutes a valid contract for the sale of land, and why is the requirement of
writing important?

To form a valid contract for the sale of land, the following elements are necessary:
a) Consideration: The selling price or rent premium for the property.
b) Capacity: All parties involved must have the legal capacity to enter into the contract.
c) Intention to Create Legal Relationship: The parties must have intended to form a legally
binding agreement.
d) No Duress: The contract must be entered into willingly without coercion.
The requirement of writing is essential for contracts of the sale of land to serve as evidence,
protect against fraud, and provide conclusive evidence of the agreement. All parties must
execute the agreement, and it should be properly witnessed by someone present at the time of
signing.

What is mandatory due diligence in conveyancing transactions, and what does it

involve?

Mandatory due diligence in conveyancing transactions involves investigating the ownership

of title and any encumbrances over the property before entering into purchase negotiations.
This process ensures that the client acquires a good marketable title. It includes three
essential steps:
a) Searches: Investigating official records and registers to gather information about the
property's ownership and any encumbrances.
b) Pre-Contract Inquiries: Gathering relevant facts and information from the parties involved
in the transaction, such as details of the property, consideration, completion date, and whether
the buyer is raising part of the purchase price by a charge (mortgage).
c) Requisitions: Requesting specific information from the seller or their agent regarding the
property, title, and any other relevant details.

What are the duties of a conveyancer in general property transactions?

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The duties of a conveyancer in general property transactions include:
 Investigating title to ensure the property has a good marketable title.
 Drafting conveyance documents, including sale details, offers, leases, mortgages, and
transfers.
 Liaising with mortgagees, lenders, estate agents, and advocates involved in the
transaction.
 Handling tax payments, such as stamp duty, land rent, VAT, and land rates.
 Keeping records of payments and preparing a completion statement.
 Ensuring proper execution, completion, and registration of documentation.

When acting for a lessor, what are the key responsibilities of a conveyancer?

When acting for a lessor (property owner leasing the property), a conveyancer's key
responsibilities include:
 Drafting the lease document with accurate sale details, offers, and particulars of the
property.
 Ensuring the lease reflects the precise intentions of the lessor and includes the correct
particulars of the property.
 Providing appropriate plans and necessary documentation related to the lease.

What tasks should a conveyancer undertake when acting for a lessee (tenant)?

When acting for a lessee (tenant), a conveyancer should undertake the following tasks:
 Investigating the lessor's title to confirm ownership.
 Reviewing and approving the draft lease document to ensure it aligns with the client's
expectations and interests.
 Advising the client on the lease terms and conditions and any potential issues related
to the property.

What are duties of a lessee?

Duties of a Lessee:
1. Property Maintenance: The lessee has a duty to maintain the property in the same
condition they obtained it. They must ensure that the property is well-kept and in an
attainable condition throughout the lease period.
2. Non-Assignment: The lessee cannot assign or transfer any part of the property to
another party without the lessor's consent. They must seek approval from the lessor
before making any changes in ownership or occupancy.
3. Payment Obligations: The lessee is responsible for paying all taxes, service charges,
and apportionment fees related to the property. They must fulfill all financial
obligations mentioned in the lease agreement, including rent and payments for
common areas shared with other lessees.
4. Structural Changes: Before making any structural changes or fixtures on the property,
the lessee must seek permission from the lessor. Alterations should not be made
without proper authorization.
5. Property Access: The lessee must allow the lessor to enter the premises with
reasonable notice to inspect the property and ensure it is in good condition.
6. Security and Visitors: The lessee is responsible for maintaining the security of the
property and ensuring that only authorized individuals are allowed access. Visitors
must be informed of the property rules and obligations.

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 7. Timely Rent Payment: The lessee has a duty to pay rent on time and fulfill any other
financial obligations mentioned in the lease agreement, such as utility bills.
8. Termination Notices: If the lessee intends to terminate the lease, they must issue
notices in accordance with the terms specified in the lease agreement.

What is the duties of lessors?

Duties of Lessors:
1. Quiet and Vacant Possession: The lessor must grant the lessee quiet and peaceful
possession of the property, ensuring that it is vacant and ready for use.
2. Property Condition: The lessor is responsible for providing a property fit for its
intended purpose and maintaining it in good condition. Repairs and necessary
maintenance should be carried out promptly.
3. Notice for Property Inspections: Before inspecting the property, the lessor must
provide the lessee with sufficient notice to enter the premises.
4. Compliance with Lease Agreement: The lessor must adhere to all the duties and
obligations stated in the lease agreement.
5. Timely Termination Notices: If the lessor intends to issue a termination notice or any
other notice, it must be done within the period specified in the lease agreement.
6. Tax Payments: The lessor must fulfill their tax obligations, such as paying stamp
duty, land rates, and land rents to the relevant authorities on time.
Both the lessee and lessor should ensure they comply with their respective duties to maintain
a harmonious and legally compliant landlord-tenant relationship throughout the lease period.

What are the contents of a lease agreement ?

A lease agreement typically contains several essential contents and clauses. Here are the key
contents of a lease agreement:
 Title of the Agreement: The lease agreement should have a clear and descriptive title
that identifies it as a lease or rental agreement.
 Parties' Information: The agreement must identify the parties involved, i.e., the lessor
(landlord) and the lessee (tenant). Their full names, addresses, and identification numbers
should be specified.
 Description of the Property: The lease agreement should provide a detailed description
of the property being leased, including its location, boundaries, and any specific features
or amenities.
 Object/Purpose of the Agreement: This section outlines the purpose of the lease,
specifying that the lessor grants the lessee the right to occupy and use the property for
residential, commercial, or other specific purposes.
 Commencement Date and Duration: The lease agreement should state the effective
date when the lease becomes valid and the duration of the lease, including the start and
end dates.
 Rent and Payment Terms: The agreement should clearly state the rent amount to be
paid by the lessee to the lessor and the frequency of rent payments (e.g., monthly,
quarterly). It should also specify the mode of payment and any late payment penalties.
 Security Deposit: If applicable, the lease agreement may include provisions for a
security deposit paid by the lessee to the lessor to cover potential damages or unpaid rent.
 Duties and Responsibilities: The agreement should outline the duties and responsibilities
of both the lessor and the lessee. For instance, the lessor is responsible for maintaining the
property, while the lessee must keep the property in good condition.

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 Termination Clause: This clause specifies the conditions under which the lease
agreement can be terminated by either party, including notice periods and any penalties
for early termination.
 Use of the Property: The lease agreement may specify any restrictions on the lessee's
use of the property, such as prohibiting subletting or using the property for illegal
activities.
 Repair and Maintenance: The agreement should outline the responsibilities for repairs
and maintenance, stating which party is responsible for specific repairs and how they
should be reported.
 Dispute Resolution: A clause detailing the process for resolving disputes between the
lessor and the lessee, such as through negotiation, mediation, or arbitration, may be
included.
 Governing Law: The lease agreement should indicate the jurisdiction's laws that govern
the contract.
 Signatures and Witnesses: The lease agreement must be signed by both the lessor and
the lessee, and there should be spaces for signatures and witnesses' names and signatures.
It is crucial to ensure that all parties involved thoroughly read and understand the contents of
the lease agreement before signing it to avoid misunderstandings and disputes in the future.
Additionally, consulting with a legal professional or real estate attorney can provide further
clarity and protection for both parties.

How do you investigate title

Investigating a title in Kenya involves conducting a thorough examination of the land records
and documents related to a specific property to verify the ownership, history, and any
encumbrances or claims on the land. This process is crucial before purchasing or dealing with
land to ensure that the title is clear and free from any legal issues. Here are the steps involved
in investigating a title in Kenya:
 Obtain the Title Deed: The first step is to obtain a copy of the title deed from the seller
or the relevant government authority, such as the Ministry of Lands. The title deed
contains essential information about the property, including the owner's name, size of the
land, and any restrictions or interests registered against it.
 Review the Title Deed: Carefully review the title deed to ensure that it is valid and
matches the property's description. Check for any discrepancies or errors in the details.
 Conduct a Search at the Land Registry: Visit the relevant Land Registry office to conduct
a search on the property. This search will provide information on any encumbrances,
charges, caveats, or restrictions registered against the property.
 Verify Land Control Board Consent: If the property is agricultural land, check if there
is a valid Land Control Board consent. This consent is necessary for certain transactions
involving agricultural land.
 Check for Liens, Mortgages, and Charges: Investigate if there are any outstanding liens,
mortgages, or charges on the property. These may affect the property's ownership and
could result in legal claims.
 Verify Survey and Boundaries: Conduct a physical inspection of the property to verify its
boundaries and ensure they match the description in the title deed.
 Check for Outstanding Rates and Rent: Ensure that all rates and rent for the property
are paid up to date. Outstanding payments could result in penalties or affect the transfer of
ownership.

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 Seek Legal Advice: Engage a qualified and experienced lawyer or conveyancer to assist
with the title investigation. They can guide you through the process and identify any
potential legal issues.
 Conduct Community Verification: If the property is located in a community land area,
consult with the local community to verify the land's status and ensure there are no
community claims or disputes.
 Obtain Clearance Certificates: Request clearance certificates from the relevant
government authorities, such as the County Government (for rates) and the Ministry of
Lands (for rent) to confirm that there are no outstanding payments.
 Investigate Zoning and Land Use: Check the zoning regulations and land use
restrictions in the area to ensure the property is suitable for your intended use.
By conducting a thorough title investigation, you can ensure that the property's title is clear
and free from any legal issues, protecting your interests and investment in the land.

What are searches, and why are they essential in conveyancing transactions?

Searches in conveyancing transactions involve enquiring about ownership, planning,

environmental issues, encumbrances, and other related matters that may affect the property's
ownership and transfer. They are essential to confirm the accuracy of information obtained
before the contract's exchange and ensure a sound title to the property.

Land searches are typically conducted at the following locations:

1. Land Registry: The Land Registry, operated by the Ministry of Lands and Physical
Planning, is the primary institution for land administration in Kenya. It maintains land
records, including title deeds, lease documents, and other land-related documents.
Land searches are conducted at the Land Registry to obtain information about land
ownership, title deeds, encumbrances, and any other relevant details.
2. Companies Registry: If the land is owned by a company or held by a corporate
entity, searches may be conducted at the Companies Registry. The Companies
Registry maintains records of registered companies in Kenya. By searching the
Companies Registry, you can gather information about the company or entity that
owns the land, including details of its directors, shareholders, and any charges or
mortgages registered against the company's assets.
3. Survey Department: The Survey Department, also known as the Survey of Kenya, is
responsible for conducting land surveys, mapping, and maintaining survey records.
Land searches may involve accessing survey plans, cadastral maps, and other survey-
related information at the Survey Department. This can provide valuable information
about the boundaries, size, and physical features of the land.

Ways of investigating a title

Investigating a title is a crucial process in real estate transactions to ensure that the property's
ownership is clear and free from any encumbrances or disputes. There are several ways to
investigate a title, including:

(a) Searches: Conducting searches at the relevant Land Registry involves inspecting the
official title records or register for the property. A written request is submitted to the registrar
to perform the search. The results obtained from the official search are considered accurate
and guaranteed by both the registry and the government. It helps discover any entries or

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encumbrances that may restrict the registration of a conveyance on the land, providing
valuable information for the purchaser.

(b) Pre-contract Inquiries: Pre-contract inquiries focus on the physical condition and location
of the property and the proposed contractual documents. Purchasers typically want to know
the physical extent of the property, check for any physical or patent defects, ascertain the
value of the property, and verify the boundaries. These inquiries provide information that
may not be available through official or personal searches and help the purchaser make
informed decisions.

(c) Requisitions: Requisitions on title are questions or queries raised by the purchaser after
perusing the title document or abstract. They arise from the inspection of the title and aim to
clarify specific aspects of the property's ownership. The purpose of requisitions is to ensure
that the purchaser receives a clear and marketable title in accordance with the contract for
sale. Requisitions help address any concerns or issues identified during the investigation of
the title.

What is the purpose of requisitions on title, and when should they be made?

Requisitions on title serve to clarify and, if necessary, rectify defects in the title supplied by
the seller's solicitor, which the buyer's solicitor finds unsatisfactory. They are made after the
contract has been executed and, in any event, not later than fourteen (14) days after delivery
of the abstract, title deed, or a copy thereof. However, good conveyancing practice would
advise conducting requisitions prior to the contract's execution.

What is the difference between a green card and a mutation form in land transactions?

A green card provides historical information about the subject parcel of land, including its
origin, allotments, and subsequent subdivisions. It is found in the correspondence file and is
usually requested from the Cabinet Secretary for Lands or the Registrar in the District/County
Registry.

On the other hand, a mutation form is issued by a surveyor during the subdivision process. It
shows how the property has been subdivided and assigns new title numbers to the subdivided
plots.

Ways of investigating a title?

Investigating a title is a crucial process in real estate transactions to ensure that the property's
ownership is clear and free from any encumbrances or disputes. There are several ways to
investigate a title, including:
(a) Searches: Conducting searches at the relevant Land Registry involves inspecting the
official title records or register for the property. A written request is submitted to the registrar
to perform the search. The results obtained from the official search are considered accurate
and guaranteed by both the registry and the government. It helps discover any entries or
encumbrances that may restrict the registration of a conveyance on the land, providing
valuable information for the purchaser.
(b) Pre-contract Inquiries: Pre-contract inquiries focus on the physical condition and
location of the property and the proposed contractual documents. Purchasers typically want to
know the physical extent of the property, check for any physical or patent defects, ascertain

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the value of the property, and verify the boundaries. These inquiries provide information that
may not be available through official or personal searches and help the purchaser make
informed decisions.
(c) Requisitions: Requisitions on title are questions or queries raised by the purchaser after
perusing the title document or abstract. They arise from the inspection of the title and aim to
clarify specific aspects of the property's ownership. The purpose of requisitions is to ensure
that the purchaser receives a clear and marketable title in accordance with the contract for
sale. Requisitions help address any concerns or issues identified during the investigation of
the title.

What are the fundamental duties of an advocate acting for a seller/vendor in a

conveyancing transaction?

Duties of a Vendor's Advocate in the Conveyancing Process:

Preliminaries:
Obtain Essential Information: The vendor's advocate initiates the conveyancing process by
obtaining crucial information from the parties involved. This includes collecting full names
and addresses of all parties, particulars of the property, the agreed-upon price, details of any
existing mortgage or charge on the property, and the expected date of completion.

Investigation:
Pre-Contract Due Diligence: Conducting thorough due diligence is a crucial duty of the
vendor's advocate. This involves conducting land searches and investigations to ensure the
property's title is clear and free from any encumbrances or legal issues that could affect the
sale.

Ensuring Proper Execution of Title:The advocate ensures that the property's title is
properly executed, and all necessary documentation is in order to facilitate a valid and legally
binding sale.

Contractual Stage:
Drafting the Sale Agreement: The vendor's advocate plays a significant role in drafting the
sale agreement, which outlines the terms and conditions of the transaction. This document is
essential in establishing the contractual obligations between the parties involved.

Acquiring Consents: Ensuring that all necessary consents are acquired is another duty of
the vendor's advocate. This may include obtaining consent from relevant authorities or third
parties if required.

Preparing Agreement, Title Documents, and Transfer: The advocate takes responsibility
for preparing all necessary legal documents required for the transaction. This includes
drafting the agreement, title documents, and transfer or conveyance documents.

Procuring Execution of Documents: The vendor's advocate ensures that all required
documents are properly executed by the relevant parties involved in the transaction.

Completion:
 Exchanging Completion Documents: Completing the transaction involves exchanging
completion documents between the vendor and purchaser. The vendor's advocate
oversees this process to ensure all required documents are properly exchanged.

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 Receiving and Accounting for Proceeds: As the transaction reaches completion, the
vendor's advocate receives the proceeds of the sale and is responsible for accounting to
their client for the funds received.
 Releasing Balance of Purchase Price: Finally, the vendor's advocate ensures that the
balance of the purchase price is released to the vendor, concluding the conveyancing
process.

By following this structured approach, the vendor's advocate plays a pivotal role in
facilitating a successful and legally compliant property sale for their client.

What are the key responsibilities of an advocate acting for a purchaser in a

conveyancing transaction?
Preliminaries
Conduct a client interview to get acquainted with the transaction and obtain instructions,
discuss fees, ascertain clients financial arrangement. Advise client on conducting a survey
then verify the report, taxation matter i.e. rent rates stamp duty
Investigation
Verify the title document from the vendor/ his advocate. Conducta search, make pre contract
inquiries and requisitions, physical inspection of the property
Contractual Stage
Receive and hold the deposit in the clients account. Verify the draft contract and make pre
contract inquiries. Consider sellers replies to pre-contract enquiries and requisitions. Consult
the same with the buyer and amend the draft contract as necessary and return to seller.
Delivery
Arrange for the execution of the contract then return engrossed and executed contract
together with deposit cheque to the sellers advocate. Receive counterpart contract signed by
the seller Draft conveyance and send it for approval and upon approval engross it
Completion
Make pre-completion searches. Make further preparations for grant of mortgage and ensure
that this is in place. Arrange for execution by the buyer and receive all monies (disbursement,
fees, balance of purchase price and apportionments). Attend completion and report to client.
Stamp conveyance & Mortgage. Get conveyance endorsed with assessed value and lodge the
conveyance for registration. Make post completion searches, Account to client and release
title documents to client.

Name 5 different registries that searches are conducted in under conveyancing?

In conveyancing practice in Kenya, several registries are commonly searched to gather

information and verify the status of properties. Here are five different registries that searches
are conducted in under conveyancing:

Companies Registry:
 The Companies Registry, under the Office of the Registrar of Companies, holds records
of registered companies and businesses in Kenya.
 Searches conducted in the Companies Registry provide information about the legal status,
directors, shareholders, and charges registered against a company.
Survey Departments:
 Survey departments at the county or national level maintain records related to land
surveys, boundaries, and cadastral mapping.

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 Searches in the survey departments provide details about the survey plans, beacons, and
other spatial information regarding the property being transacted.
County Government:
 The County Government offices are responsible for various administrative functions
related to land and property matters at the county level.
 Searches conducted at the County Government offices provide information about land
rates, land use planning, zoning regulations, and other relevant local regulations.
Land Registry:
 The Land Registry, also known as the Ministry of Lands, holds records of land ownership
and transactions in Kenya.
 Searches in the Land Registry provide crucial information about land titles,
encumbrances, restrictions, leases, and other legal aspects related to the property.
Probate Registry:
 The Probate Registry, under the jurisdiction of the High Court, handles matters related to
wills, estates, and succession.
 Searches conducted in the Probate Registry provide information about probate grants,
letters of administration, and other documents related to the transfer of property upon the
death of an individual.

Conducting searches in these registries helps ensure that a clear and accurate picture of the
property's legal status and ownership is obtained during the conveyancing process in Kenya.

What due diligence would an advocate for a purchaser do?

An advocate representing a purchaser would conduct thorough due diligence to ensure that
the property being considered for purchase is free from any legal issues or encumbrances.
The due diligence process would typically include the following:
 Physical Inspection: The advocate would physically inspect the property with a surveyor
to verify that the measurements and the details mentioned in the title deed match the
actual condition of the property on the ground.
 Title Investigation: A search would be conducted in the Land Registry to confirm the
existence of the property and check for any encumbrances or charges registered against it.
This helps ensure that the property is legally owned by the vendor and is not encumbered
by any loans or other financial liabilities.
 Tax and Cost Assessment: The advocate would assess the applicable taxes and costs
associated with the property purchase. This includes calculating and verifying the stamp
duty payable, transfer fees, and any other charges required for transferring the property to
the purchaser's name.
 Rental and Tax Clearance: The advocate would check whether the vendor has paid all
the necessary taxes, land rates, and other rentals applicable to the property. This is
essential to prevent any potential liabilities from being passed on to the purchaser.
 Consent Requirements: Depending on the type of property and any legal obligations
involved, the advocate would ensure that all necessary consents are obtained. This may
include getting consent from the Land Control Board or obtaining spousal consent for
matrimonial property.
 Verification of Ownership: The advocate would verify that the vendor has legal
ownership rights to sell the property and has the authority to enter into the transaction.

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 Check for Pending Issues: The due diligence process would aim to identify any pending
legal issues, disputes, or pending court cases related to the property that could affect the
purchase decision.
By conducting a comprehensive due diligence, the advocate can provide the purchaser with
the necessary information and assurances to make an informed decision about the property
purchase. This process helps protect the purchaser from potential risks and ensures that the
property being acquired is free from any encumbrances or legal complications.

21. What is the purchasers advocate responsible for the following

 Carrying out the search
 Scrutinizing title documents
 Approving sale agreement and sends out requisition for the same
 Preparing transfer or conveyance and engrosses the same
 Attending to the execution of conveyance or transfer where necessary
 Stamping and lodging documents for registration
 Obtaining and paying the purchase monies to the vendor’s advocate

22. What is the vendors advocate responsible for

 Prepares agreement
 Prepares title documents
 Approves transfer/conveyance
 Procures execution of transfer of conveyance
 Attests the execution of a transfer or conveyance.
 Receives and accounts for the proceeds of sale to his client

Who drafts a sale agreement?

Vendors advocate.

What a purchasers advocate does with it?

Verifies it and raises pre contract inquiries with the vendors advocate and also advises the
purchaser on it.

How many engrossed copies do u need?

Two engrossed copies, one for each party

What are the Duties of an advocate acting on behalf of the bank (financier)?
Make an undertaking of releasing the funds on registration of the property and mortgage

What are the roles of the bankers' advocate in the conveyancing process?

The bankers' advocate conducts due diligence, such as land search and credit reference
bureau checks, for individuals and companies seeking loans. They draft the charge document

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for the loan and issue a professional undertaking to the vendor. They also ensure the charge is
registered, disperse the funds, and monitor compliance with the loan conditions.

What is the significance of the 90-day completion period in conveyancing transactions?

The 90-day completion period is the recommended time for completion according to the LSK
Conditions of Sale. It allows sufficient time to obtain and process all necessary completion
documents, such as land rent and rate clearance certificates, consents, and approvals for
subdivisions. Some properties may have specific requirements, like obtaining consent from
the Land Control Board for agricultural land. Additionally, the process of subdivision or
other administrative procedures can take time, necessitating the 90-day timeframe.

Can an advocate represent both the vendor and purchaser in a conveyancing

transaction, and what are the potential implications?

While it is not illegal for an advocate to represent both the vendor and purchaser, it is
generally not advisable due to potential conflicts of interest. Advocates should avoid acting
for both parties where a conflict is likely to arise. If an advocate decides to represent both
parties, both the vendor and purchaser must provide their consent. Acting for both parties
may create a situation where the advocate is called as a witness, violating the principle of
confidentiality and creating ethical challenges.

What is the difference between a sale agreement and a transfer document in a

conveyancing transaction?

The sale agreement is a contract that governs the entire transaction of selling land and sets out
the terms and conditions agreed upon by the parties. On the other hand, the transfer document
is the conveyancing deed that needs to be registered at the Land Registry to transfer the legal
title of the property from one party to another. While the sale agreement is the initial contract,
the transfer document is the final document used to effect the transfer of ownership.

What is a sale agreement, and what is its purpose?

A sale agreement is a legally binding document that outlines the terms and conditions for the
sale of a property between two parties. Its purpose is to protect the interests of both the
purchaser and the vendor in the transaction.

What are the basic requirements for a sale agreement to be enforceable under the Law
of Contract Act?

According to the Law of Contract Act, for a sale agreement to be enforceable, it must meet
three basic requirements: i. It must be in writing, applicable to all dispositions of interest in
land. ii. It must be signed by both parties involved in the transaction. iii. The execution must
be attested or witnessed in the presence of the person attesting at the time of signing the
agreement.

What are the essential clauses of a sale agreement in kenya?

In Kenya, a sale agreement typically includes several essential clauses to ensure clarity and
protection for both the buyer and the seller. While it is advisable to consult with a legal

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professional for specific guidance, I can provide you with a general overview of some
common clauses found in sale agreements in Kenya:
 Description Of Parties: Clearly identify the buyer and seller, including their full
names, addresses, and contact details.
 Date
 Property Description: Provide a detailed description of the property being sold that
is the subject matter of the sale agrreements, including its physical address, size,
boundaries, and any relevant identification numbers.
 Definitions And Interpretations -so even if there's a layman reading the agreement
they can be able to tell what is happening in that particular agreement
 The Obligations Of Each Party : what are the obligations of the vendor and the
purchaser.
 Purchase Price: State the agreed-upon purchase price for the property and the
currency in which it will be paid. It's also important to specify the payment method
(e.g., cash, bank transfer) and any installment plans or deposit amounts if applicable.
 Payment Terms: Outline the payment schedule, including the due dates for any
installments or the full payment. Specify any interest rates, penalties, or consequences
for late payments.
 Property Condition: Declare the condition of the property at the time of the sale.
Include provisions for property inspections, repairs, and any warranties or guarantees
offered by the seller.
 Title And Ownership: Ensure that the seller has legal ownership of the property and
possesses a valid title deed. Specify that the seller will transfer the title and provide all
necessary documents for a legal transfer of ownership.
 Completion Date
 Transfer Of Possession: Clearly state the date of the property handover from the
seller to the buyer. Specify any conditions or obligations related to the transfer of
possession, such as the removal of occupants or tenants.
 Default And Termination: Include clauses that outline the consequences if either
party fails to fulfill their obligations, such as the right to terminate the agreement,
retain deposits, or seek legal remedies.
 Variation - we may put dates in the sale agreement but some things may happen that
we may not be able to comply with those dates as maybe something unpredictable
may happen in the Land Registry. Be able to pay the purchase price on time and so
you should have a clause on variation stating that parties may vary any term of the
agreement as long as it is in writing and agreed by both of them.
 Dispute Resolution: Define the procedures for resolving any disputes that may arise
from the sale agreement, including whether parties should attempt mediation or
arbitration before pursuing litigation.
 Force Maujore Clause
 Governing Law: Specify the laws of Kenya as the governing law for the sale
agreement and any disputes that may arise.
 Confidentiality: If desired, include a confidentiality clause that prohibits the
disclosure of sensitive information shared during the negotiation and execution of the
agreement.
 Miscellaneous Provisions: Include any additional clauses deemed necessary by the
parties, such as conditions for the transfer of utilities, tax obligations, or restrictions
on property use.
 Legal Fees: who will cater for the legal fees and payment of taxes (capital gains tax
and stamp duty)

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  Execution page: Every party signature should be attested by a witness and that
witness and the signature is also attested by an advocate. Advocate signature is
essential in a land transaction.

How is agricultural land defined under the Land Control Act?

Agricultural land, as defined under the Land Control Act, is land that is not within a
municipality, township, trading center, or market. It specifically excludes areas falling under
those categories.

You are an advocate for a developer, advice?

What is the process of transferring interest in agricultural land.

The process of transferring interest in agricultural land in Kenya involves several steps and
legal requirements. Here is an overview of the typical process:
 Obtain Land Search: Before initiating the transfer process, conduct a land search at the
Ministry of Lands or Land Registry to confirm the ownership status, any encumbrances,
and other relevant details about the land.
 Agreement for Sale: The buyer and seller enter into an Agreement for Sale, which
outlines the terms and conditions of the transfer, including the purchase price, payment
terms, and any other relevant agreements.
 Obtain Consent from Land Control Board: If the land falls under the control of the
Land Control Board, the buyer must obtain their consent for the transfer. The Land
Control Board ensures that the transfer complies with land use regulations and that the
buyer is eligible to acquire agricultural land.
 Pay Stamp Duty: The buyer is required to pay stamp duty on the purchase price as per
the Stamp Duty Act. Stamp duty is a tax levied on certain legal documents, including sale
agreements.
 Prepare Transfer Documents: Engage a lawyer to prepare the necessary transfer
documents, including the Transfer of Lease or Transfer of Title depending on the type of
land involved.
 Obtain Consent from Relevant Authorities: If the land has any encumbrances, such as
mortgages, charges, or caveats, the buyer must obtain consent from the relevant
authorities or parties.
 Execute Transfer Documents: Both the buyer and seller sign the transfer documents in
the presence of witnesses and a legal representative.
 Land Rent Clearance: Ensure that all land rent and rates for the land are up-to-date and
cleared.
 Apply for Consent from the Cabinet Secretary: If the land is held on leasehold, the buyer
must apply for consent from the Cabinet Secretary responsible for lands before the
transfer is registered.

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 Lodge Transfer Documents: Submit the transfer documents, along with all necessary
consents and clearances, to the Ministry of Lands or Land Registry for registration.
 Pay Registration Fees: Pay the applicable registration fees as per the Land Registration
Act.
 Registration: Upon successful registration, the transfer of interest is completed, and the
buyer becomes the new registered owner of the agricultural land.
It is crucial to engage the services of a qualified lawyer or a professional in the land
conveyancing process to ensure that all legal requirements are met and the transfer is carried
out smoothly and legally. Additionally, the specific process may vary depending on the type
of land, location, and any unique circumstances surrounding the transfer.

Completion documents for agricultural land

For the completion of a transfer of agricultural land in Kenya, the following documents and
requirements are typically needed:
 Original Title Deed: The original title deed of the agricultural land must be presented
during the transfer process.
 Land Control Board Consent: If the land falls under the control of the Land Control
Board, the consent of the board is required before the transfer can proceed.
 Spousal Consent: If the seller is married, the consent of their spouse is required for the
transfer, as per the relevant laws.
 Valuation Report: A valuation report may be required to determine the market value of
the agricultural land.
 Transfer Document: The duly executed transfer document, such as a Transfer of Lease
or Transfer of Title, is essential for the transfer process.
 Passport Photos and Identification Documents: Passport-sized photos of the seller
(vendor) and copies of their National ID or relevant identification documents must be
provided. If the seller is a company, photos and IDs of two directors who will sign the
transfer forms are required.
 PIN Number: A copy of the seller's Personal Identification Number (PIN) is necessary.
 Company Registration Documents: If the seller is a company, a copy of the company's
registration certificate and PIN certificate must be submitted.
 Rates Clearance Certificate: If the land is freehold and within a rateable zone, a rates
clearance certificate is required. Rates are levied by the County Government for services
rendered.
 Rent Clearance Certificate: If the land is leasehold and subject to land rent, a rent
clearance certificate from the Ministry of Lands is necessary.
 Requisite Consents: Additional consents, such as Railways & Airport Consent if
applicable, may be required depending on the specific circumstances of the land.
It's important to note that the requirements for transferring agricultural land may vary
depending on the location, type of land, and other specific factors. Engaging the services of a
qualified lawyer or land expert in the conveyancing process is advisable to ensure compliance
with all legal requirements and a smooth transfer of ownership.

What are the general components of a sale agreement?

An ordinary sale agreement generally consists of five parts: i. The parties involved in the
transaction. ii. Particulars of the sale, including the description of the property. iii. Special

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conditions of the sale. iv. General conditions applicable to the transaction. v. Execution
details, such as signatures and witnessing.

What constitutes the special conditions of a sale agreement?

The special conditions of a sale agreement include important aspects of the transaction, such
as:
 The capacity of the vendor (seller) to sell the property.
 Payment details, including the deposit and balance of the purchase price.
 Possession arrangements before execution.
 Completion date and schedule for handling related matters.
 Exceptions, reservations, and risk and liability for insurance pending completion.
 Power of either party to serve a completion notice.
 Conditions subject to consents and LSK conditions of sale.

What are the contents of a sale agremenet ?

A sale agreement is a comprehensive legal document that outlines the terms and conditions
governing the sale of a property between two parties, the purchaser and the vendor. Below is
a detailed explanation of the components typically found in a sale agreement:
 Parties: The sale agreement begins by identifying the parties involved in the transaction,
namely the purchaser (buyer) and the vendor (seller). Their full legal names and addresses
are specified in the agreement. These details are crucial for issuing any necessary notices
during the course of the agreement.
 Definitions and Interpretations: This section clarifies key terms used throughout the
agreement. It defines terms such as "Vendor" and "Purchaser" to avoid ambiguity. The
singular and plural forms of words are also explained. Additionally, this section may
define "person" to include both natural and artificial/legal persons. The subject property is
described here, including its physical and legal descriptions, and any encumbrances are
addressed.
 Purchase Price and Deposit: The purchase price is the consideration that supports the
contract. It must be explicitly stated in the agreement, and if the transaction is by way of
gift, this should be specified. The purchaser usually pays a deposit, typically 10% of the
purchase price, before or on the execution of the contract. The agreement should outline
when the deposit is to be paid, by whom, and to whom. Special conditions may specify
how the deposit is treated in the event of default by either party.
 Completion and Completion Documents: Completion is the final stage of the
transaction where the interest in the property passes from the vendor to the purchaser. It is
emphasized that a sale agreement alone does not transfer ownership; a formal transfer
document must be stamped and registered for the transfer to be effective. Both parties
have their respective obligations to fulfill at completion. Pre-completion searches are
usually conducted to ensure that contractual obligations are satisfied before the
completion date.
 Date of Completion: The specific date of completion may be explicitly agreed upon and
inserted into the contract. If the date is not mentioned in the agreement, the completion is
expected to occur within a reasonable period. However, if the contract includes a "time is
of the essence" clause, the completion date must be strictly adhered to.
 "Time is of the Essence" Clauses: This clause enforces strict adherence to the
completion date. Failure to complete on the specified date may be considered a
fundamental breach of contract.

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 Completion Documents: These documents include the original title documents, a duly
signed transfer document, relevant consents, the vendor's Personal Identification Number
(PIN), photographs of the vendor or vendor's directors, copy of the vendor's ID, and a
power of attorney if applicable.
 Special Conditions: Special conditions are terms specific to the particular contract and
relevant to the transaction. They cover various issues, such as fixtures and fittings,
remedies in case of default, and conditions subject to mortgages or other arrangements.
 General Conditions: General conditions are standard terms that apply in the absence of
any specific terms. They cover a wide range of matters, including right to rescind,
preparation and content of the transfer, possession and grant, deposit and forfeiture, and
notices.
 Capacity: This section addresses the legal competence of a person or entity to sell the
property. It may include provisions for holding the deposit in escrow or as a stakeholder.
 Assignment: This clause deals with the transfer of the whole interest in the property,
either the transfer itself or the transfer of obligations and rights of the parties.
 Default: This clause outlines the consequences in case of failure to perform a legal or
statutory duty under the contract, such as payment of specified liquidated damages.
 Non-Merger: This clause ensures that each clause in the agreement stands on its own. If
one clause is deemed null and void, it will not affect the validity of other clauses.
 Stamp Duty and Related Costs: This section explains that stamp duty is based on the
value of the property. Registration charges and advocate fees are also mentioned, with
each party bearing their own costs.
 Disclaimer: The disclaimer clause embodies the "buyer beware" principle, stating that
the vendor is not obligated to point out any irregularities in the property. It is the
responsibility of the purchaser to inspect the property and conduct pre-contract inquiries.
 General Obligations: This clause covers any additional general obligations of the
parties, including how and when payment is to be made and whether the agreement can
be varied in writing or by other means.
 Miscellaneous Clauses and Provisions: This section addresses various miscellaneous
matters, such as the exercise of rights and remedies, severability of invalid clauses, and
annexation of additional agreements to the original contract.
 Execution: This is the final step where the parties authenticate the agreement by affixing
their signatures, thumbprints, or common seals, along with stating their capacity in
executing the document.

How many times can someone extend the time for one to pay when writing a default
clause of the property?

The number of times someone can extend the time for payment in a default clause of the
property depends on the specific terms agreed upon in the contract. Generally, the number of
extensions allowed may vary based on factors such as the value of the property and the
discretion of the vendor.

What considerations might influence the decision to include multiple extensions in the
default clause for a property worth a lot of money?
When dealing with a high-value property, the vendor may include multiple extensions in the
default clause to accommodate potential purchasers who need more time to secure financing
or complete due diligence. This approach helps ensure that the vendor does not lose potential
buyers due to rigid timelines.

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What is the significance of the "time is of the essence" clause in a property contract,
and how does it relate to granting extensions?

The "time is of the essence" clause emphasizes strict adherence to the specified timeline in
the contract. It means that there should be no notices or extensions, and any delay in payment
or performance may be considered a fundamental breach of the contract. However, it's
important to note that even when this clause is included, courts have recognized the
practicality of granting reasonable notice and extensions in certain situations.

What are the consents you need to acquire before transferring interest in land?
In Kenya, before transferring an interest in land, there are several consents that you may need
to acquire depending on the specific circumstances and the type of land involved. Some of
the common consents required include:
1. Consent from the Land Control Board: If the land is agricultural or falls under the
control of the Land Control Board, you will need their consent before transferring the
interest in the land.
2. Consent from the County Government: In some cases, especially for public land or
land owned by the county government, you may need their consent before transferring
the interest.
3. Consent from the National Land Commission (NLC): For certain categories of land,
particularly public land, you may require consent from the National Land
Commission before transferring the interest.
4. Consent from the Cabinet Secretary responsible for land: In specific situations, such
as when dealing with leasehold titles, you may need consent from the Cabinet
Secretary responsible for land matters.
5. Consent from Lenders or Chargeholders: If the land is subject to a mortgage or
charge, you may need consent from the lender or chargeholder before transferring the
interest.
6. Consent from Family Members or Beneficiaries: In the case of family land, customary
land, or land held in trust, you may need the consent of other family members or
beneficiaries before transferring the interest.
7. Consent from Relevant Authorities: Depending on the location and type of land, there
may be other authorities, such as environmental or planning authorities, from which
you need to acquire consent before transferring the interest.
It's essential to consult with a qualified lawyer or a professional in the land conveyancing
process to determine the specific consents required for your particular situation. The consents
needed can vary depending on the nature of the land, its location, and any encumbrances or
restrictions associated with it.

What is completion?

In conveyancing, completion refers to the final stage of a property transaction when all the
necessary legal and financial obligations are fulfilled, and ownership of the property is
transferred from the seller to the buyer. It involves the following key elements:
 Payment of Purchase Price: The buyer is required to pay the remaining balance of the
purchase price to the seller or their representative. This payment is typically made
through a bank transfer or a certified check.

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 Execution of Transfer Documents: The seller prepares and executes the necessary
transfer documents, such as a deed of transfer or a sale agreement, to transfer the legal
ownership of the property to the buyer.
 Registration of Transfer: The transfer documents, along with any other required
documents, are submitted to the relevant land registry or government authority for
registration. The registration process confirms the transfer of ownership and updates the
official records with the new owner's details.
 Payment of Stamp Duty: Stamp duty, a tax on property transfers, must be paid by the
buyer to the respective government authority. The amount is calculated based on the
purchase price or the property's market value, whichever is higher.
 Handover of Possession: Once the completion process is finalized, the seller hands over
the keys and possession of the property to the buyer, allowing them to occupy and utilize
the property.

What are the completion documents ?

Completion documents are essential legal paperwork required to finalize the transfer of
property ownership from the vendor (seller) to the purchaser (buyer). These documents play a
crucial role in ensuring the transaction is valid and legally binding. Here is a comprehensive
list of completion documents typically needed for a property transfer:
 KRA PIN Certificates: Both the purchaser and the vendor must provide their Kenya
Revenue Authority (KRA) Personal Identification Number (PIN) certificates.
 Identification Documents: Clear copies of the identification documents, such as national
identification cards or passports, are required for both the purchaser and the vendor.
 Passport Photos: Colored passport-sized photographs of both the purchaser and the
vendor are to be attached to the relevant documents presented for the property transfer.
 Clear Colored Passport Photographs: As per the Land Registration Act, clear colored
passport-sized photographs must be affixed to every document submitted for disclosure,
including those of the vendor and the purchaser.
 Sale Agreement: The original sale agreement, outlining the terms and conditions of the
property sale, is essential for completing the transfer.
 Rent Clearance Certificates: If the property is leasehold, the vendor needs to provide a
rent clearance certificate to confirm all rent payments are up-to-date.
 Rates Clearance Certificates: For freehold properties, rates clearance certificates are
required to confirm that all local government rates and taxes have been paid.
 Transfer Document: The actual transfer document, which formalizes the transfer of
property ownership, must be prepared and duly signed by both parties.
 Original Title Deed: The vendor must provide the original title deed of the property,
which will be transferred to the purchaser upon completion.
 Land Control Board (LCB) Consent: In cases where LCB consent is required (e.g., for
certain agricultural lands or controlled areas), the appropriate consent document must be
provided.
 Off-plan Purchase Documents: If the property is an off-plan purchase, documents such
as a certificate of occupation and a certificate of practical completion may be necessary to
confirm the completion of the construction or development.
 Charge Documents and Discharge Documents: If the property was previously charged
(e.g., with a mortgage or other encumbrances), corresponding charge documents and
discharge documents must be provided to ensure a clear title transfer.

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What is an encumbrance?

 An encumbrance is a restriction or limitation that is registered on the title to a property,

preventing or restricting its use, transfer, or access.
 It can include various types such as a lien, easement, caveat, or restriction.
 If it is a charge that is an encumbrance. That you cannot do anything with respect to the
property like transfer it to another person until the amount advanced or secured by that
particular loan has been repaid.
 An easement is an encumbrance that grants someone the right to use a specific portion of
the property or access it in a particular way.
 A lien is an encumbrance that secures a debt or financial obligation, preventing the
transfer of the property until the debt is repaid. A judgement that has been registered in
respect of that property, informing members of the public that this particular property is
either the subject of court proceedings or belongs to another person and this person does
not intend to transfer.
 A caveat is a registered notice that informs the public of a claim or pending legal action
regarding the property.
 A restriction is a specific limitation on what can be done with the property, while a caveat
is a general claim of ownership or control.
 Encumbrances provide information about the property's status and limitations and can
impact its value and potential use.

What is the time is of the essence clause in conveyancing contracts?

The "time is of the essence" clause is a crucial provision often included in conveyancing
contracts. This clause emphasizes the importance of strict adherence to the specified
timeframes and deadlines mentioned in the contract. It means that punctuality and timeliness
are essential for the performance of the contract, and any delay in meeting the stipulated
timelines could result in significant consequences for the parties involved.

What are the consequences of breaching?

The consequences of failing to meet the deadlines specified in the "time is of the essence"
clause in a conveyancing contract can vary depending on the specific terms of the contract
and the applicable laws. However, some common consequences may include:
1. Contract Termination: If a party fails to perform their obligations within the
stipulated timeframe, the other party may have the right to terminate the contract. In
such cases, the non-defaulting party may be entitled to cancel the agreement, and the
defaulting party could lose the opportunity to complete the transaction.
2. Penalties and Damages: The contract may specify penalties or damages that the
defaulting party must pay to the other party as compensation for the breach. These
penalties are often stated as a fixed amount or a percentage of the contract value and
are intended to compensate the injured party for any losses or inconvenience caused
by the delay.
3. Forfeiture of Deposit: In some cases, if the purchaser fails to complete the
transaction within the agreed timeframe, the vendor may be entitled to retain the
deposit paid by the purchaser. The deposit serves as a form of security, and the
contract may allow the vendor to keep the deposit if the purchaser fails to meet their
obligations on time.

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It's essential for all parties involved in a conveyancing contract to understand the implications
of the "time is of the essence" clause and to take their obligations seriously. Failure to comply
with the agreed-upon deadlines can have significant legal and financial consequences, and
seeking legal advice before entering into such contracts is advisable to protect one's interests.

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.

Difference between joint tenancy and tenancy in common

Joint Tenancy:
 Section 29 of the Land Act recognizes joint tenancy as a form of co-ownership, where
two or more individuals hold an undivided interest in the property.
 Joint tenants have an equal and undivided share in the property, with the right of
survivorship.
 Section 29(3) states that upon the death of a joint tenant, their share automatically passes
to the surviving joint tenant(s) without the need for probate or succession proceedings.
 Joint tenancy requires the "four unities" - unity of time (the joint tenants acquire their
interest at the same time), unity of title (they acquire their interest from the same source),
unity of interest (they have equal shares), and unity of possession (they have an equal
right to possess the entire property).
Tenancy in Common:
 Tenancy in common is recognized under Section 30 of the Land Act as another form of
co-ownership.
 Unlike joint tenancy, tenants in common can have equal or unequal shares in the property,
as specified in the title deed or ownership document.
 Each tenant in common has a distinct and separable share in the property, which they can
dispose of or transfer independently.
 In the event of the death of a tenant in common, their share forms part of their estate and
is distributed according to their will or the laws of intestacy.

Doctrine of survivorship/jus accrescendi

In a joint tenancy – when one party dies, the other party gets the deceased share of the
property. The surviving party takes the whole property

Subdivision
What is land subdivision, and what are some reasons for subdividing land?

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Land subdivision refers to the process of dividing land held under single ownership into two
or more parts. Some reasons for subdividing land include resale for profit, inheritance (gifting
to children or relatives), and subdivision for development purposes, where a portion of the
land is sold to obtain funds for developing the remaining portion.

How is the process of land subdivision governed, and what is the role of county
governments in controlling or prohibiting land subdivision?

The process of land subdivision is governed by the Physical and Land Use Planning Act No.
13 of 2019 (PLUPA), which repealed the Physical Planning Act cap. 286. County
governments have the authority to control or prohibit land subdivision within their
jurisdiction, as empowered by the Urban Areas Cities Act, 2011, and the County
Governments Act, 2012.

According to Section 41 of the Physical Planning Act of Kenya, what are the
requirements for subdividing private land within the area of authority of a local
authority?

According to Section 41 of the Physical Planning Act of Kenya, private land within the area
of authority of a local authority may only be subdivided in accordance with the requirements
of a local physical development plan approved for that area. An application for subdivision
must be made in the prescribed form to the local authority. The subdivision and land use
plans for the private land must be prepared by a registered physical planner and approved by
the Director.

What are some factors considered by the Land Control Board when granting or
refusing consent for the subdivision of agricultural land?

Section 9 of the Land Control Act outlines the factors considered by the Land Control Board
when granting or refusing consent for the subdivision of agricultural land. These factors
include the impact of the subdivision on economic development, maintenance of good
husbandry standards, fairness of transaction terms, and citizenship status of the proposed
transferee.

What are the key steps in the process of land subdivision, and what are the common
conditions for approval imposed by the local authority or liaison committee?

The key steps in the process of land subdivision include conducting a title-deed search,
obtaining a Registry Index Map (RIM), preparing a subdivision scheme plan, obtaining
approval from various county departments, obtaining consent from the Land Control Board
(for agricultural land), setting boundary marks, and registering the new titles. Common
conditions for approval may include the type and form of development, reservation of land
for public purposes, provision of utilities and services, co-ordination of contiguous properties,
and registration of conditions in the title deed.

LSK Conditions
What are the LSK conditions?

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The LSK conditions are a basic guide to lawyers on drafting contracts for the sale of land,
and they aid the conveyancing process.

What is the purpose of the LSK conditions?

The purpose of the LSK conditions is to serve as a guide for drafting sale agreements,
providing terms, conditions, and provisions to be included in a contract for the sale of land.
They also balance the legal rights of both the vendor and the purchaser, offering protection.
Additionally, the LSK conditions have incorporated technological advancements, such as
electronic conveyancing through email notices and RTGS (Real Time Gross Settlement).

What are the two types of conditions?

The two types of conditions are Special Conditions and General Conditions. Special
conditions are terms expressly agreed upon by the parties and vary in each contract. General
conditions, on the other hand, are standard terms usually found in every sale agreement, such
as the parties' names and roles.

How do the LSK conditions apply in contracts for the sale of land?

The LSK conditions are general conditions, and they coexist with special conditions. In case
of any conflict or inconsistency between the general and special conditions, the special
conditions will prevail. This is because the LSK conditions can be included or excluded by
the parties based on their mutual agreement, thanks to freedom of contract.

What does the LSK conditions document contain?

The LSK conditions contain a variety of matters related to contracts for the sale of land,
including provisions about rescission, deposit, completion, and possession. However, it's
important to note that parties are not legally bound to incorporate these conditions in their
contracts; they serve as guidelines.

What is the definition of "Completion" in the LSK conditions?

"Completion" in the LSK conditions refers to the act of completing the sale of the property
for consideration pursuant to the agreement. It involves transferring the interest or estate in
the property to the purchaser, granting legal possession of the property to the purchaser,
settling utility bills and transferring utility accounts, and apportioning outgoings between the
vendor and the purchaser.

What is the significance of a "Non-Merger Clause" in the LSK conditions?

The Non-Merger Clause in the LSK conditions states that any condition or special condition
to which effect is not given by the transfer and is capable of taking effect after completion
remains in full force and effect after completion. In simpler terms, certain terms and
obligations of the agreement continue even after completion.

In a sale by auction, can the vendor bid on the property?

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Yes, in a sale by auction, the vendor or a party on their behalf may bid on the property up to
the reserve price. However, the auctioneer may refuse any bid for good reasons.

What are patent defects and latent defects?

Patent defects are visible defects that can be observed through inspection, and the buyer
should take note of them under the doctrine of caveat emptor (buyer beware). Latent defects,
on the other hand, are not visible and may not be apparent during inspection. The seller has
an obligation to disclose latent defects to the buyer.

What are completion documents, and why are they essential in a conveyancing
transaction?

Completion documents, also known as deliverables, are the necessary documents obtained
from the vendor to facilitate the registration of a valid sale agreement. They represent the
final step in a conveyancing transaction, where the necessary documents are exchanged in
return for the purchase price. These documents include the Original Certificate of Lease,
Transfer of Lease, Stamp Duty Assessment and Pay-in Slip, Consent to transfer, Share
Certificate, Certified copies of various certificates and approvals, among others. They are
crucial in ensuring a smooth and legally compliant transfer of ownership.

In what circumstances would an LCB consent be required as part of the completion

documents?

LCB consent is required when buying an agricultural plot of land. It is a specific document
needed in such transactions, and its absence can affect the completion process. For any
agricultural land purchase, obtaining LCB consent is essential to ensure compliance with the
relevant laws and regulations.

What is NEMA consent, and when is it necessary in a property transaction?

NEMA consent stands for National Environmental Management Authority consent. It is

required when a property transaction involves a development that may have an impact on the
environment. NEMA assesses the environmental impact of the project and grants a license
with specific conditions to ensure proper land use and conservation. It is essential for
developers to obtain NEMA consent to demonstrate environmental compliance.

What are some of the consequences of not having clear completion clauses in a sale
agreement?

Not having clear completion clauses in a sale agreement can lead to serious legal issues. As
seen in the case of Muchira v Gesima Power Mills, unclear completion clauses can render
the sale agreement fatally defective. Ambiguities regarding completion dates, the
responsibility for providing completion documents, and cost allocation can result in disputes
and invalidate the sale agreement. It is crucial to have well-defined completion clauses to
avoid potential legal complications and ensure a smooth and valid transaction.

Key cases

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Summary of key conveyancing cases

National Bank of Kenya Limited v Wilson Ndolo Ayah:

 Mr. Ndolo executed a charge and a deed of guarantee to secure a loan from National
Bank of Kenya (NBK) for a property purchase.
 Later, he claimed that the documents were invalid because they were drawn by an
unqualified advocate.
 The court found that the advocate who drew the documents lacked a valid practicing
certificate, making the charge and guarantee null and void.
 NBK appealed, but the Court of Appeal upheld the decision, citing the need to enforce
the law and avoid perpetuating illegality.
 Final determination: The charge and guarantee were declared null and void, making
the loan irrecoverable from Mr. Ndolo.

National Bank of Kenya v Anaj Warehousing Ltd:

 NBK entered into an agreement with Anaj, and an advocate without a valid practicing
certificate prepared the documents.
 Anaj argued that the charge was void ab initio due to the advocate's lack of a
practicing certificate.
 The Court of Appeal agreed, and the matter was taken to the Supreme Court for
determination.
 The Supreme Court found that the lack of a current practicing certificate would not
invalidate the documents prepared by the advocate.
 The court emphasized the intention of the parties to be bound by the agreement,
overriding procedural technicalities.
 Final determination: The lack of a practicing certificate did not invalidate the
documents, overturning the position in the Ndolo case.

Rajdip Housing Development Ltd v Wacira Wambugu t/a Wambugu & Company
(Appeal):
 Rajdip Housing Development entered into a sale agreement with Ufundi Co-op,
represented by Mr. Wambugu as their advocate.
 The agreement included a provision for commission payment to Lobi Firm Ltd, which
Rajdip disputed.
 The lower court admitted extrinsic evidence and ruled in favor of Mr. Wambugu,
stating that Rajdip had authorized the commission agent appointment.
 The Court of Appeal found the agreement unambiguous and not requiring extrinsic
evidence.
 The court applied the contra proferentem rule and ordered Mr. Wambugu to release
the disputed funds to Rajdip.
 Final determination: The agreement was unambiguous, and Mr. Wambugu had no
authority to appoint a commission agent without Rajdip's consent.

Key Principles to note from the cases :

 Conveyancing documents should comply with legal formalities, and risks in
conveyancing transactions need to be managed effectively.
 Advocates must have valid practicing certificates to act in legal matters.
 Contracts should be unambiguous, and parties must act in good faith.
 The contra proferentem rule dictates that contracts be read against the party who
prepared them.

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  The intention of the parties to be legally bound is crucial in interpreting agreements.

Barclays Bank Plc v O'Brien (UK):

 Facts: Mr. and Mrs. O'Brien owned a home subject to a mortgage. Mr. O'Brien sought
a loan from Barclays Bank for his business. Mrs. O'Brien signed the guarantee and
legal charge without understanding the risks or being properly informed.
 Key Points: Mrs. O'Brien claimed she signed under undue influence and
misrepresentation. The bank had knowledge of the wrongful misrepresentation and
failed to take reasonable steps to remedy it.
 Final Determination: The documents were signed under undue influence and
misrepresentation, so Mrs. O'Brien was entitled to set aside the legal charge on the
matrimonial home.
Mortgage Express Limited v Bowerman & Partners (1996):
 Facts: Bowerman & Partners acted as conveyancers for Mortgage Express and the
purchaser of a property. The purchaser bought the property at a lower price and did
not inform Mortgage Express. The lender claimed damages due to the negligence of
the conveyancers.
 Key Points: The court found that Bowerman had a duty to inform Mortgage Express
of the sub-sale, and the failure to do so was negligent.
 Final Determination: Bowerman was liable to pay damages to Mortgage Express for
not informing them about the sub-sale, which led to financial losses.
Gitwany Investment Limited v Taj Mall Limited & 3 Others (2006):
 Facts: A land dispute arose from the double allocation of title deeds. Two different
investors received titles for the same land from the Commissioner of Lands.
 Key Points: The court applied the "first in time prevails" equitable principle and
found that the first title registered (Gitwany Investment Limited) was valid.
 Final Determination: Gitwany Investment Limited was declared the lawful owner, and
the second investor's title (Taj Mall Limited) was invalidated. The Commissioner of
Lands was held liable for fraudulent actions and ordered to pay the costs.
Baber A Mawii v United States International University & another (1976):
 Facts: Mawii claimed that he gave a loan to USIU through an oral agreement and
sought payment. USIU disputed the claim, and the issue of whether the claimant was
a duly authorized agent was raised.
 Key Points: The court assumed Mr. Hamilton was a duly authorized agent of USIU
based on his position. Handwritten representations were considered as signed even
without a formal signature.
 Final Determination: The court allowed the plaintiff's caveat to stand against the title
but ordered a deposit as a guarantee of good faith.
Mapis Investment (K) Limited v Kenya Railways Corporation (2006):
 Facts: Mapis Investment claimed that Kenya Railways appointed them as sole selling
agent for a property and sought commission. The court questioned whether Mr.
Shompa was a registered estate agent and if the contract was legal.
 Key Points: The contract between Mapis and Kenya Railways was found to be illegal
as both parties were not registered estate agents.
 Final Determination: The appeal was dismissed, and the cross-appeal was allowed for
different reasons. The judgment of the High Court was sustained, but the appellants
were not awarded the amount they prayed for due to the contract's illegality.

Spousal consent

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How does spousal consent impact property transactions?

Spousal consent is a legal requirement when one party in a property transaction is married. If
the person selling the property is married, they must obtain consent from their spouse before
completing the sale. Failure to secure spousal consent may lead to complications, with the
spouse objecting to the transfer of the land later on. Spousal consent protects the rights of
both spouses in the event of a property sale, ensuring that both parties are aware of and agree
to the transaction.

What are the statutory provisions supporting spousal consent in relation to property
ownership?

The statutory provisions supporting spousal consent in property ownership include Section
93(1) of the Land Registration Act, which presumes joint tenancy when both spouses
contribute to buying the property, and Section 28 of the Land Registration Act, which
recognizes spousal rights as overriding interests.

Under what circumstances is spousal consent mandatory in property transactions?

Spousal consent is mandatory in property transactions under two main circumstances. Firstly,
when land is held in the name of one spouse, but the other spouse made a direct contribution
to the land's productivity, it brings a presumption of joint ownership. Secondly, in the case of
a charge on a property, the lender is under a duty to inquire whether the borrower's spouse
was consulted and actually consented to the charge.

What are the exceptions to spousal consent in property ownership?

The exceptions to spousal consent in property ownership are:
1. If the certificate of ownership shows a contrary provision regarding joint tenancy or
ownership.
2. If the certificate of ownership clearly indicates that the spouses are joint tenants.

How does the law protect the vulnerable spouse from exploitation in property matters?

Various legal provisions protect the vulnerable spouse from exploitation in property matters.
These include Article 45 of the Constitution, the Marriage Act, the Matrimonial Properties
Act, the Land Registration Act, and the Law of Succession Act. These laws aim to safeguard
the interests of both spouses and ensure fair treatment in property transactions

Transfers And Transmissions

What is the difference between an agreement and a transfer in property transactions?

In property transactions, an agreement sets out the terms and conditions of the sale, including
the price, completion date, and consequences of default. It is a contract between the parties.
On the other hand, a transfer is the actual legal instrument that passes the estate or interest in
the land from the seller (transferor) to the buyer (transferee). The transfer must be in the
prescribed form or approved by the Registrar, and it is completed by registering the transferee
as the new proprietor in the Land Register.

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What are the formalities associated with transfers in property transactions?

The formalities associated with transfers in property transactions include the execution,
attestation, and verification of the transfer document. The transfer must be signed by the
parties involved, witnessed by an advocate of the High Court of Kenya, a magistrate, a judge,
or a notary public. If the transfer is executed outside Kenya, it must be endorsed or
accompanied by a certificate completed by a notary public or other authorized person. The
transferee must also attach various identification documents, including an identity card or
passport, passport-size photographs, and, if applicable, a marriage certificate or a certificate
of incorporation for corporate entities.

What is the effect of a transfer in property transactions?

The transfer of property does not take effect until the transferee is registered as the new
proprietor in the Land Register. Once the transfer is registered, the purchaser becomes the
registered owner of the property. Registration serves to replace the vendor as the owner,
although the vendor remains entitled to the purchase price. After registration, the purchaser
will be issued a new title reflecting their ownership of the property, which can be verified
through a search in the Land Register.

What are involuntary transfers (transmissions) in property matters, and how do they
occur?
Involuntary transfers, also known as transmissions, occur by operation of law or court order
when the proprietor of an estate becomes a judgment debtor, leading to the attachment and
sale of their land, or when the property is sold by virtue of a charge's statutory power of sale.
Transmissions can also happen in cases of bankruptcy, where the property passes to a trustee
in bankruptcy, or when a proprietor dies insolvent, and their assets, including land, are
administered in accordance with the rules of bankruptcy.

How does transmission on death occur in property matters?

Transmission on death occurs when a sole proprietor or proprietor in common dies. The
personal representative of the deceased, upon application to the Registrar and with the
production of the grant (in case of proprietor in common), can be registered as the new
proprietor in place of the deceased. The Registrar may also register a transfer by the personal
representative upon confirmation of the grant. In cases of joint tenancy, the name of the
deceased tenant is deleted from the register upon proof of death. If a person under the age of
eighteen years owns an interest in the land, their name may be entered in the register under
the name of the guardian, holding the interest in trust for the minor.

Remedies of a purchaser of land upon the National land commission revoking his title.

They manage public land on behalf of the national and county governments, initiate
investigations into present or historical land injustices and recommend appropriate redress
and monitor and have oversight responsibilities over land use planning throughout the
country NLC was officially established under The National Land Commission Act of 2012.

They will take your land for compulsory acquisition. Compulsory acquisition, also known as
eminent domain or expropriation, is a legal process through which the government acquires

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private property for public use, often in the interest of a public project or development. While
compulsory acquisition is a lawful power that governments possess, it must be exercised in
accordance with specific laws and regulations to protect the rights of property owners.
If your land is subject to compulsory acquisition, the following general steps are typically
involved in the process.
Remedies
 Compensation
 Restitution
 Relocation to an alternative land
Aggrieved Party- Appeal to the Environment and Land court.

Professional Undertakings

What is a professional undertaking?

A professional undertaking is an unequivocal declaration of intention made by a solicitor in

the course of their practice, personally or by a member of their staff, becoming personally
bound. It is a promise to do or refrain from doing something and is frequently used in legal
transactions to facilitate and expedite processes.

Explain Professional undertaking in conveyancing

In the context of conveyancing, a common scenario where a professional undertaking is given
is when the vendor's advocate promises to hold the money received from the purchaser until
the registration of the title is completed and the property is officially transferred to the
purchaser's name. Only after this event occurs, the vendor's advocate will release the money
to their client.

It's crucial to note that once an undertaking is given and the recipient has placed reliance on
it, the solicitor cannot withdraw or revoke the undertaking. This means that once a vendor has
accepted an undertaking and released the relevant documents, the party giving the
undertaking cannot back out of their promise.

Enforceable and binding undertakings between professionals in conveyancing play a

significant role at different stages of the process. They help forge a chain of intricate
transactions, ensuring that no bargains are lost, and everyone involved in the conveyancing
process can proceed without any delays or uncertainties.
When requesting a professional undertaking in the context of conveyancing, it is usually
initiated by the purchaser's advocate or the financier's advocate. The purchaser's financier's
advocate typically drafts the undertaking and sends it to the vendor's advocate for review and
agreement. If the vendor's advocate does not agree to the terms, further negotiations may
occur until both parties reach a mutual understanding.

Once both parties agree to the undertaking, the title is then sent to the purchaser's financier's
advocate to place the charge on the property. After completing this step, the title is returned
to the vendor's advocate to finalize the conveyancing process.
In conclusion, professional undertakings are essential in conveyancing transactions as they
ensure that all parties involved in the process fulfill their promises and obligations, leading to
a successful and smooth transfer of property ownership.

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What is the legal effect of a professional undertaking given by a solicitor?

Once a solicitor gives a professional undertaking, they are personally bound to fulfill the
obligations stated in the undertaking. It is enforceable against the solicitor personally, and
they cannot withdraw or back out of the undertaking once the recipient has relied on it.

How can a professional undertaking be enforced? A professional undertaking can be enforced

summarily by application to the court. The court will ensure that the solicitor honors their
undertaking, as it is considered a bond made by the solicitor on the authority of their client.

What are the principles that a solicitor should observe when giving a professional
undertaking?

When giving a professional undertaking, a solicitor should:

a) Obtain the client's express authority to give it.
b) Give the undertaking in writing and reduce it to writing if initially given verbally.
c) Only give an undertaking they have full control over the ability to fulfill.
d) Not give or accept an undertaking if they do not have the means to fulfill it.
e) Make it clear in the terms of the undertaking if they do not intend to accept personal
responsibility for its fulfillment.
f) Exercise diligence when accepting an undertaking from another solicitor.

Explain terms of an undertaking

The terms of an undertaking refer to the specific conditions or promises that are requested
and agreed upon between the parties involved in a transaction. In the context of
conveyancing, these terms are usually requested by the purchaser's financier's advocate, who
is representing the bank in a transaction where the bank is providing a loan for the purchase
of a property.
Here's how the process of requesting and issuing the terms of an undertaking typically
unfolds:
1. Request for Terms: The purchaser's financier's advocate initiates the process by
writing to the vendor's advocate and requesting the terms of their undertaking. This
request seeks to clarify and outline the specific actions that the vendor's advocate will
be obligated to perform as part of the undertaking.
2. Vendor's Response: Upon receiving the request, the vendor's advocate reviews it and
responds by providing the terms of their undertaking. In this response, the vendor's
advocate specifies the actions they commit to doing (e.g., A, B, C, D) as part of the
undertaking.
3. Counter Offer (if necessary): Sometimes, there might be negotiations or discussions
between the parties regarding the terms of the undertaking. If the purchaser's
financier's advocate is not satisfied with the initial terms proposed by the vendor's
advocate, they may respond with a counteroffer that includes the revised terms they
wish to see in the undertaking.
4. Finalizing the Terms: Once both parties reach an agreement and are satisfied with the
terms of the undertaking, they are considered final and binding. The terms clearly
outline the specific obligations and actions that the vendor's advocate is committed to
performing as part of the undertaking.

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 5. Issuing the Undertaking: After finalizing the terms, the purchaser's financier's
advocate issues the undertaking to the vendor. This formal document contains the
agreed-upon terms and serves as a written commitment from the purchaser's
financier's advocate to fulfill their obligations as outlined in the undertaking.
The undertaking serves as a crucial part of the conveyancing process, providing assurance
and security to all parties involved that the agreed-upon actions will be carried out promptly
and responsibly. It acts as a binding contract between the parties and ensures that the
transaction proceeds smoothly and without any undue risks or uncertainties.
In an exam scenario, students may be asked to provide or analyze the terms of an undertaking
based on a given conveyancing case. They would be expected to identify the specific
promises and obligations outlined in the undertaking and assess whether the terms are clear,
enforceable, and meet the necessary legal requirements. Understanding the terms of an
undertaking is vital for both legal practitioners and students to navigate the complexities of
conveyancing transactions successfully.

What is the significance of professional undertakings in legal transactions?

Professional undertakings play an essential role in mediating legal transactions and forging a
chain of intricate transactions without losing any bargains. It ensures smooth processes and
avoids inconvenience for clients.

How does the court interpret and enforce professional undertakings?

The court interprets professional undertakings liberally, taking into consideration the
behavior and intentions of the solicitor when determining if an undertaking was given or
intended. Once an undertaking is proven, the court will enforce it to protect the honesty and
reputation of the legal profession.

Is there a specific format for writing a professional undertaking letter?

There is no prescribed format for writing a professional undertaking letter. It is usually

written on the law firm's letterhead and must be clear, unequivocal, and in writing to avoid
misunderstandings. It should state the specific promises made and the personal responsibility
of the solicitor in fulfilling the undertaking.

What does the "time is of the essence" clause mean in a contract or undertaking?

The "time is of the essence" clause means that the specified time for completion in the
contract or undertaking is crucial and must be strictly adhered to. Any delay beyond the
agreed-upon time is considered a fundamental breach of the contract, leading to remedies like
rescinding the contract or seeking damages.

At what stage is the financed portion of the purchase price paid in the conveyancing
process?

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The financed portion of the purchase price is paid once both the transfer and charge
documents are registered. It is essential that the charge is registered before funds are
dispersed to avoid potential legal issues, such as conspiracy to defraud.

Tax

What is tax, and how is it imposed?

Tax is a compulsory levy imposed by the state on individuals, companies, and entities. It is
mandatory and failure to pay taxes can result in criminal proceedings. Taxes serve different
functions, including funding the state and regulating behavior by creating incentives or
disincentives for certain activities.

What are the different types of taxes in the context of land transactions?
In the context of land transactions, there are mainly three types of taxes to consider:
 Capital Gains Tax (CGT): It is a tax imposed on the gains derived from the transfer
of land or property. The rate of CGT is 15% on the gain derived from the transfer of
the land. The vendor pays this.
 Stamp Duty: Stamp duty is a tax on the instrument of transfer, and it applies to both
the transfer of land and shares. The rates differ based on whether the property is
located in a municipality or outside a municipality. You are upcountry you pay stamp
duty at 2% of the value. If you're in the municipality you pay some duty at the rate of
4% of the value of the land. The purchaser pays this.
 Value Added Tax (VAT): VAT is applicable to the transfer of commercial properties,
but not on residential properties. The standard VAT rate is 16%.
 Land Rent: In some cases, there may be land rent payable to the government or the
relevant land authority for properties held on leasehold tenure. Land rent is an annual
fee that the leaseholder is required to pay to retain the rights to the property.
 Land Rates: Land rates can be defined as the tax the government imposes on land.
The amount to be paid often varies depending on the market value of the land.
Generally, the value of land appreciates as it is serviced with amenities that may
include water, streetlights, sewerage system, and better roads

What is stamp duty?

Stamp duty is a type of tax imposed on certain legal documents and transactions, particularly
those related to the transfer of assets or property. The tax is typically payable to the
government and is calculated based on the value of the transaction or the consideration
involved.
The purpose of stamp duty is to raise revenue for the government and to validate the legal
documents used in various transactions. By affixing a physical stamp or imprint on the
document, the government indicates that the appropriate amount of stamp duty has been paid,
and the document becomes legally enforceable.
The types of documents and transactions subject to stamp duty can vary depending on the
country and its specific tax laws. Common examples of documents that may attract stamp
duty include:
1. Property transactions: This includes the transfer of real estate, such as buying or
selling land, houses, or commercial properties.

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 2. Share or stock transfers: Stamp duty may apply to the transfer of shares or stocks in a
company.
3. Leases and tenancy agreements: Renting or leasing property may also incur stamp
duty.
4. Loan agreements: Certain loan or mortgage documents may attract stamp duty.
5. Legal agreements and contracts: Various legal agreements, such as partnership
agreements or employment contracts, may be subject to stamp duty.
The rates of stamp duty can vary based on factors like the jurisdiction, the value of the
transaction, and the type of document involved. In some cases, stamp duty rates may be
progressive, meaning that the tax rate increases as the value of the transaction or asset being
transferred increases.
It is essential to consult the relevant tax authorities or seek professional advice to understand
the specific stamp duty regulations and rates that apply to your specific situation, as these can
vary significantly between different countries and regions.

How is stamp duty paid?

Stamp duty is paid at the Land Registry in accordance with the rights provided under the
stamp duty form. To calculate the stamp duty, a valuer conducts a property valuation, and the
value determined in the valuation report is used for the computation. However, before
making the final payment, the valuation must be confirmed by the Land Registry through a
process called stamp duty assessment.
The rate of stamp duty payable is determined by the Stamp Duty Act, and it is a percentage of
the property's value stated in the valuation report. Once the computation is complete, a stamp
duty form is obtained from the Land Registry, and it is sealed with the computed amount
based on the Stamp Duty Act.
Next, the payment is made through the Kenya Revenue Authority (KRA) using the taxpayer's
login details, including their KRA PIN and password. The payment is made under the
"Agency Revenue" section on the KRA's online platform, where the taxpayer can select
"stamp duty" from the list of applicable taxes.
After making the payment, the taxpayer receives a KRA payment confirmation slip. This slip,
along with the stamped duty form indicating the documents and the amount paid on KRA, is
submitted back to the Land Registry. The submission is called "booking," and it is forwarded
to the registrar for registration.
Overall, the process of paying stamp duty involves property valuation, computation based on
the Stamp Duty Act, payment through the KRA, and submission of the necessary documents
to the Land Registry for registration. This ensures that the appropriate stamp duty is paid for
the property transaction in accordance with the law.

How is Capital Gains Tax (CGT) calculated for land transactions?

CGT is calculated based on the gain derived from the transfer of the land or property. The
gain is determined by subtracting the adjusted cost from the transfer value. The adjusted cost
includes the cost of acquisition, holding, improvements, and defending the property's rights.
The resulting gain is then subjected to tax at the rate of 15%.

Who is responsible for accounting for Capital Gains Tax (CGT)?

The person transferring the property, i.e., the seller or owner of the property, is responsible
for accounting and paying Capital Gains Tax.

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What are the tax implications for the transfer of shares where the underlying real estate
is owned by a company?

When transferring shares of a company that owns real estate, the following tax implications
arise:
1. Stamp Duty: The transfer of shares attracts stamp duty at the rate of 1%.
2. VAT: There is no VAT implication for the transfer of shares.
3. Capital Gains Tax (CGT): CGT may apply based on the appreciation in the value of
the shares.

How are leases taxed in real estate transactions?

The registration of leases triggers stamp duty taxation. For leases below three years, stamp
duty is 1% of the total annual rent, and for leases above three years, it is 2% of the total
annual rent.

What are Real Estate Investment Trusts (REITs) and their tax implications?
Answer: REITs are regulated investment vehicles that pool funds to invest in real estate.
Transactions involving REITs may enjoy exemptions from stamp duty and VAT. The income
of the REIT itself may also be exempt from tax under certain conditions. It is the REIT as a
trust that benefits from the exemptions, not the individual unit holders. The aim is to
encourage capital pooling and investment in the real estate sector.

Matrimonial Property

Questions and Answers on Matrimonial Property:

How does the Matrimonial Property Act define "Matrimonial Property"? A: Matrimonial
Property includes the matrimonial home or homes, household goods and effects in the
matrimonial home, immovable and movable property that provides basic income for the
family, and any other property acquired during the marriage by mutual agreement.

What does "matrimonial home" mean according to the Matrimonial Property Act?

Matrimonial home refers to any property owned or leased by one or both spouses and
occupied by them as their family home.

How is ownership of matrimonial property vested between spouses according to the

Matrimonial Property Act?
Ownership of matrimonial property is vested in the spouses based on their contributions
towards its acquisition, and it shall be divided between them in case of divorce or dissolution
of marriage.

Can estate or interest in matrimonial property be alienated without the consent of both
spouses during the subsistence of the marriage?

No, according to the Matrimonial Property Act, no estate or interest in matrimonial property
can be alienated, whether by sale, gift, lease, mortgage, or otherwise, without the consent of
both spouses.

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Is spousal consent required for the mortgage or lease of the matrimonial home?

Yes, the Matrimonial Property Act mandates that the matrimonial home cannot be mortgaged
or leased without the written and informed consent of both spouses.

What are the types of contributions recognized by the Matrimonial Property Act?

Contributions recognized by the Act include monetary and non-monetary contributions such
as domestic work, child care, companionship, management of family business or property,
farm work, and contributions to the matrimonial home.

How does the Land Act recognize spousal contributions to land ownership?

The Land Act recognizes that if one spouse contributes through labor or other means to the
productivity, upkeep, and improvement of land held in the name of the other spouse, the
contributing spouse shall acquire an interest in that land equivalent to their contribution.

What happens if a spouse obtains an interest in land during the marriage for co-
ownership and use of both spouses?

The property shall be deemed to be matrimonial property and will be dealt with under the
Matrimonial Property Act, as per the Land Act (S. 93).

Can a disposition of land be void if the spouse's consent is not obtained?

Yes, if a disposition of land is made without the consent of the spouse, the disposition can be
void at the instance of the spouse who did not consent, even if the charge or transferee was
misled.

How does spousal consent play a role in conveyancing transactions?

Spousal consent is crucial in conveyancing to ensure that a spouse's interests are protected
and that the transaction is not voided later on due to lack of consent. Consent should be
sought when acquiring or disposing of property during the marriage.

Transmissions Upon Death

What are transmissions in the context of property ownership?

Transmissions refer to the passing of land, lease, or charge from one person to another by
operation of law, typically occurring upon the death of the proprietor, insolvency,
bankruptcy, or through a court order in the case of matrimonial property.

How do transmissions occur?

Transmissions occur either by operation of the law or through a court order.

What is joint proprietorship, and how does transmission work in such cases?

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Joint proprietorship is a form of concurrent ownership where two or more persons possess the
land with undivided interests. Upon the death of one joint owner, the property is transferred
to the surviving owner(s) under the right of survivorship.

What is the main feature of joint proprietorship regarding property transfer?

The main feature of joint proprietorship is the right of survivorship, where the interest of a
deceased joint tenant passes to the surviving joint tenant(s) until only one survivor holds the
property as the sole owner.

Are joint properties subject to testamentary laws or interstate laws?

No, joint properties are not subject to testamentary laws or interstate laws, as the right of
survivorship takes precedence over any disposition made by the deceased joint tenant's will.

What is "ownership in common" in relation to property transmission?

Ownership in common is a form of concurrent ownership where each co-owner holds an

individual undivided interest in the property. In case of the death of one owner, their share in
the property passes to their beneficiaries as stated in the will.

How does the transmission process differ between joint proprietorship and ownership
in common?

In joint proprietorship, the right of survivorship applies, and the property is transferred to the
surviving owner(s) without the need for probate or court proceedings. In ownership in
common, transmission may involve probate or court proceedings for the transfer of the
deceased owner's share to their beneficiaries.

What is the regulatory framework for property transmissions upon death?

The regulatory framework includes provisions in the Land Act, Land Registration Act, and
Law of Succession Act.

What forms and documentation are required for property transmission upon death?

The Land Registration General Regulations 2017 prescribe the relevant forms, such as LRA
38 and LRA 39, to apply for the removal of the deceased joint tenant's name from the register
and for registration as an administrator/executor, respectively. Additionally, the application
for grant under the Law of Succession Act requires detailed information about the deceased,
their assets, beneficiaries, and any existing will.

What are the steps for a personal representative to be registered as an

administrator/executor after the death of the proprietor?

The personal representative needs to apply to the Registrar in the prescribed form (LRA 39)
with the necessary documents, such as a copy of the grant of letters of administration or
probate, duly certified by the court.

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The personal representative can also apply to be registered jointly with other personal
representatives as a proprietor under transmission using Form LRA 40.

Sectional Titles

What are the two main ways in which flats, townhouses, and offices in office blocks can
be owned?

The two main ways are through registration of long-term leases under the Land Registration
Act or through registration under the Sectional Properties Act.

How are long-term leases created for these properties?

Developers acquire ownership of the land, put up housing units, and issue long-term leases
for each individual unit, where they are the Lessors and purchasers are the Lessees. If the
land is leased from the government or the County Government, the instrument created is a
Sub-Lease; if the land is freehold, the instrument created is a Lease.

How does the Sectional Properties Act regulate the ownership of buildings?

The Sectional Properties Act allows for the division of buildings into units owned by
individual proprietors and common property owned by the proprietors of the units as tenants
in common.

What is a sectional plan according to the Act?

A sectional plan is a plan registered in the Land Registry that delineates the external
boundaries of the parcel, the location of the building, and defines the boundaries of each unit
within the building. It also includes information about the title to the parcel and the floor area
of each unit.

What happens upon registration of a sectional plan?

Upon registration of a sectional plan, the Registrar will close the register of the parcel
described in the plan and open a separate register for each unit described in the plan. A
certificate of sectional property will be issued for each unit, and the share in the common
property will be apportioned to the owner of each unit.

Explain the Difference between a sublease and sectional property

In Kenya, the difference between a sublease and sectional property can be understood by
examining the provisions of the relevant laws such as the Land Act (No. 6 of 2012), the Land
Registration Act (Cap. 300), and the Sectional Properties Act (No. 21 of 2020). Here's an
explanation of each concept:
Sublease:
 A sublease refers to a lease arrangement where a lessee (the original tenant or lessee)
leases a portion or the entire leased property to another party (the sublessee) for a
specified period, while the original lease with the landlord still remains in effect.
 Under the Land Act, a sublease is recognized as a legal arrangement where the sublessee
acquires certain rights and obligations related to the subleased portion of the property.

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 The sublease is typically subject to the terms and conditions of the original lease
agreement between the lessee and the landlord, with the sublessee stepping into the shoes
of the lessee for the subleased portion.
Sectional Property:
 Sectional property refers to a type of property ownership where a building or
development is divided into individually owned units or sections, such as apartments,
offices, or shops.
 The Sectional Properties Act governs the creation, management, and ownership of
sectional properties in Kenya.
 The Act provides for the establishment of sectional plans, which define the boundaries
and ownership of each section within the development.
 Each individual owner of a section also acquires an undivided share of the common areas
and facilities of the development, such as corridors, parking areas, or common amenities.
 The ownership and management of the sectional property are regulated by the sectional
owners' association or body corporate, which is responsible for maintaining and
managing the common areas and enforcing the rules and regulations of the development.
In summary, the main difference between a sublease and sectional property lies in the nature
of the arrangement. A sublease involves a tenant leasing a portion of the property to another
party, while sectional property involves individual ownership of specific units or sections
within a larger development. The legal framework governing subleases can be found in the
Land Act and the Land Registration Act, while the Sectional Properties Act specifically
addresses the creation and management of sectional properties

How is common property shared among the owners?

The common property is held by the owners of all the units as tenants in common in shares
proportional to the unit factors for their respective units.

What is the purpose of the Corporation established under the Act?

The Corporation consists of all the owners of units in the parcel and is responsible for
carrying out duties imposed on it by the by-laws, controlling and managing the common
property, and enforcing the by-laws.

What are the duties of the Corporation?

The duties of the Corporation include maintaining insurance for buildings and improvements,
keeping the common property in good repair, enforcing by-laws and contracts, and ensuring
the property is well managed, among other responsibilities.

What documentation should be provided to a purchaser according to the Act?

A developer shall provide copies of the purchase agreement, the by-laws or proposed by-laws
of the corporation, the title to the parcel, and the certificate of sectional property in respect of
the unit or proposed unit.

How does the Act regulate the Purchase Agreement?

The Act provides detailed provisions for the contents of the Purchase Agreement, regulating
the terms of sale and moderating the freedom of contract in the sector.

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How were purchase monies handled under the old Act?

Under the old Act, purchase monies were not released to the developer directly. Instead,
payments were to be held in trust by the developer or a person acting on their behalf. The
money had to be deposited into an interest-earning trust account maintained in a bank or
licensed financial institution.

What happened to the money held in trust?

The money held in trust was meant to safeguard the interests of the purchasers. It was not to
be released until the completion of the transaction or as per the terms of the purchase
agreement. This provision aimed to protect buyers from potential mishandling of funds by
developers.

Does the new Sectional Properties Act retain the protection regarding the handling of
purchase monies?

No, the new Sectional Properties Act, enacted in 2020, removed the protections regarding
the handling of purchase monies. The requirement to hold money in trust and deposit it into
an interest-earning account is no longer mandatory.

How is common property held under the Act?

Common property is held by the owners of all the units as tenants in common. Each owner
holds a share in the common property proportional to the unit factor of their respective unit.

Can a share in the common property be disposed of or charged separately from the
unit?

No, a share in the common property cannot be disposed of or charged separately from the
unit. Any disposition or charge on a unit automatically affects the share in the common
property appurtenant to that unit, without the need for express reference to it.

What is considered as common property according to the Act?

Common property includes all rights of support, shelter, and protection, as well as provisions
for various services such as water, sewerage, drainage, gas, electricity, garbage, air,
telephone, radio, and television services. These rights and services are essential for the
reasonable use and enjoyment of the property or unit.

How can the sectional status of a building be terminated?

The sectional status of a building can be terminated either by unanimous resolution of the
corporation or through an application to the High Court. Upon termination, the unit and
sectional plan registers are closed, and the land register closed under section 5(1) of the Act is
reopened.

Tenancies And Licences

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What are tenancies, and how are they different from leases?

Tenancies are leases that do not confer ownership. They grant the tenant the right to exclusive
possession of the property for a specified period, but ownership remains with the landlord. A
lease, on the other hand, is a conveyance by which the lessor grants the lessee an interest in
land less than a freehold. The lessor retains an interest called the reversion.

What are the essential elements of a lease?

The three essential elements of a lease are:

 Exclusive Possession: The tenant must have the right to possess the property
exclusively, to the exclusion of the landlord and others.
 Determinate Term: The lease must have a defined or definable period with a
beginning and a certain ending.
 Defined Premises: The property being leased must be concretely defined or capable
of being defined.

What is a periodic tenancy, and how can it be created?

A periodic tenancy is a lease where the term is not specified, and no provision is made for
giving notice to terminate the tenancy. It continues for a recurring period (e.g., week to week,
month to month) on which rent is payable. A periodic tenancy can be created when:
1. The lessee remains in possession of the property after the lease term has expired
without a new agreement, making it periodic by default.
2. The owner permits someone to occupy the property at rent without a written
agreement, creating a periodic tenancy.

What are short-term leases, and do they need to be registered?

Short-term leases are leases for a term of two years or less without an option for renewal or
periodic leases. Short-term leases can be made orally or in writing and are not registrable
interests in land. They do not require mandatory registration, even if they are for agricultural
land.

What is the significance of rent in a tenancy agreement?

Rent is an essential element of a lease, though its absence may not affect the lease's validity.
Peppercorn rent, a nominal amount, is sometimes used in specific leases, but it is relatively
rare in commercial tenancies. Consideration (rent) must be adequate, though not necessarily
sufficient, for the lease.

What are implied rights and liabilities in a lease?

Implied rights and liabilities are provisions that automatically apply to a lease unless
specifically excluded or modified in the lease agreement. For example, implied covenants by
the lessor include the right of the lessee to peacefully and quietly possess the leased property,
the lessor's obligation to keep common areas in repair, and more. Similarly, the lessee has
implied covenants to pay rent and keep the property in a reasonable state of repair.

What are some mechanisms for the enforcement of lease obligations?

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Some mechanisms for enforcing lease obligations include:
1. Distress for Rent: The right to seize certain goods or chattels of the tenant to compel
rent payment.
2. Action for Recovery of Rent Arrears: Instituting a court action to recover unpaid rent
within the six-year limitation period.
3. Action for Damages: The landlord can seek damages for breach of covenants other
than the payment of rent.
4. Injunction: In certain cases, the landlord can seek an injunction to restrain breaches of
certain covenants.
5. Enforcement by a Tenant: The tenant can also seek remedies such as an injunction or
damages against the landlord.

How can a lease come to an end?

A lease can come to an end through various means, including:

 Expiry of Time: When the lease term reaches its defined end date.
 Surrender: The tenant voluntarily yields up the premises to the landlord. It can be
express (when effected by written instrument) or implied (when the person vacates)
 Merger: When the tenant becomes an owner, the lease merges with the reversion,
terminating the lease.
 Disclaimer: A lease may be disclaimed, meaning a party renounces their interest in the
property.
 Frustration: When events outside the parties' control make the lease impossible to
fulfill, it may be considered frustrated.
 Forfeiture: The lease can be terminated by the landlord if the tenant breaches a
material covenant.
 Notice: The lease may be terminated by either party giving notice according to the
terms of the lease or the law In the case of a contract that notice must conform to the
terms of the contract. For periodic tenancies the notice must conform to requirements
of statute.

What are controlled tenancies, and which Acts create them?

Controlled Tenancies are created by the Rent Acts, namely, the Rent Restriction Act (Cap
296) and the Landlord and Tenant (Shops, Hotels, and Catering Establishments) Act (Cap
301). These Acts aim to protect tenants from exploitation and eviction and apply to domestic
premises and business premises, respectively.

Under which circumstances are tenants protected under the Rent Restriction Act and
the Landlord and Tenant (Shops, Hotels, and Catering Establishments) Act?

The Rent Restriction Act protects tenants of domestic premises, and the Landlord and Tenant
(Shops, Hotels, and Catering Establishments) Act protects tenants of business premises. The
Acts provide additional security of tenure and control of rent for economically less powerful
tenants who lack bargaining power.

What is the essential feature of a controlled tenancy?

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The most essential feature of a controlled tenancy is that it can only be terminated or altered
in accordance with the provisions of the regulating Act. The termination or alteration of such
a tenancy must adhere to the prescribed procedures outlined in the respective Acts.

Explain the Landlord and Tenant (Shops, Hotels, and Catering Establishments Act) and
its protections.

The Landlord and Tenant (Shops, Hotels, and Catering Establishments Act) sets standards
below which voluntary agreements may not fall. It provides protection to tenants of shops,
hotels, and catering establishments. To qualify as a controlled tenancy under this Act, the
tenancy must meet certain conditions, including the period of the tenancy not exceeding five
years or containing a provision for termination within five years.

In which circumstances does the Landlord and Tenant (Shops, Hotels, and Catering
Establishments) Act not apply?

The Act does not apply to tenancies relating to premises used to run a school or a petrol
station under an operator agreement. Additionally, if the premises are residential, they fall
under the Rent Restriction Act rather than the Landlord and Tenant (Shops, Hotels, and
Catering Establishments) Act.

What is the significance of a "tenancy notice" under the Landlord and Tenant (Shops,
Hotels, and Catering Establishments) Act?

A "tenancy notice" is a notice given by a landlord or tenant to the other party regarding the
termination or alteration of a controlled tenancy. The notice must be in the prescribed form,
specify the grounds for termination or alteration, and require the receiving party to respond
within one month. The notice takes effect after two months from the date of receipt, during
which time the receiving party can refer the matter to the Business Premises Tribunal.

Explain the concept of "notice" in the context of the Landlord and Tenant (Shops,
Hotels, and Catering Establishments) Act.

"Notice" in the Act refers to the communication given by a landlord or tenant to the other
party regarding their intention to terminate, alter, or reassess the tenancy. The notice must
follow the prescribed form and provide specific grounds for the intended action. It becomes
effective after two months from the date of receipt, but its effect is suspended if the matter is
referred to the Business Premises Tribunal.

What terms and conditions are implied in controlled tenancies under the Act?

The Act outlines various terms and conditions implied in controlled tenancies, including:

- The premises being fit for habitation and complying with health laws.
- Liability to pay rent being suspended in case of destruction through no fault of the tenant.
- The tenant's right to quiet enjoyment, provided they comply with express or implied
covenants.
- The landlord being responsible for repairs to specific parts of the premises.
- The tenant being responsible for internal repairs and decorations, except for fair wear and
tear.

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- The landlord being responsible for repair, maintenance, cleaning, and lighting of common
parts.
- The tenant paying rent in advance, and the landlord paying rates, taxes, and similar
outgoings, unless otherwise agreed.
- The tenant keeping fixtures and fittings in good and tenantable repair.
- The right of the landlord to enter the premises for inspection or repair with reasonable
notice.
- Restrictions on subletting or transferring the tenancy without the landlord's consent.

Which tenancies are protected under the Rent Restriction Act?

The Rent Restriction Act protects tenants of domestic premises. However, certain types of
dwelling houses are excluded from its application, such as those gazetted as exceptions, those
let on service tenancies, and those with a standard rent exceeding two thousand five hundred
shillings per month.

What is the primary dispute resolution machinery under the Rent Restriction Act?

The primary dispute resolution machinery under the Rent Restriction Act is the Rent
Restriction Tribunal. It is responsible for resolving disputes related to controlled tenancies
and plays a crucial role in ensuring the fair application of the Act's provisions.

What is a service tenancy according to the Rent Restriction Act?

A service tenancy, as defined in Section 3 of the Rent Restriction Act, refers to a letting of a
dwelling-house by the landlord to an employee in connection with their employment.

What are the powers of the Tribunal under the Rent Restriction Act?

The Tribunal, under the Rent Restriction Act, possesses various powers, including:
 Assessing the standard rent of any premises upon application or at its own initiative.
 Fixing the date from which the standard rent is payable for certain premises.
 Apportioning rent payment among tenants sharing a premises or included in one
composite tenancy.
 Fixing the amount of service charge, if part of the rent payable.
 Permitting the levy of distress for rent.
 Investigating complaints related to tenancy made by either a tenant or landlord.

When can a landlord increase rent under the Rent Restriction Act?

According to Section 11 of the Rent Restriction Act, a landlord can only increase rent by
giving written notice to the tenant and delivering a copy of the notice to the Tribunal.

What are the conditions for the recovery of premises or the ejectment of a tenant under
the Rent Restriction Act?

Section 14 of the Rent Restriction Act provides the conditions under which an order for
recovery of any premises or the ejectment of a tenant can be made. These conditions must
align with the reasons set out in the subsections of Section 14(1) of the Act.

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Explain agricultural tenancy and its key features.

Agricultural tenancy refers to a tenancy arrangement related to agricultural land. The key
features of agricultural tenancies include:
 The tenancy must be for a minimum of six months.
 Termination of the tenancy requires a six months' notice.
 For disputes, mediation clauses are recommended over arbitration clauses due to
potential cost-effectiveness.
 Agricultural land does not fall under the purview of the Landlord and Tenant Act or
the Rent Restriction Act.
 Registration of such leases necessitates consent from the Land Control Board.
 The duration of agricultural tenancies can vary from six years, five years, three years,
or any period longer than six months.
 The amount of rent does not affect whether the tenancy falls under the Landlord and
Tenant Act or other related Acts, making it a separate and distinct category.

Explain the idea of Tenancy at Sufferance

In Kenyan law, the concept of "tenancy at sufferance" is not explicitly recognized. Instead, a
tenancy at sufferance is treated as a periodic tenancy. When a tenant continues to occupy the
property after the lease agreement has expired and without the landlord's consent, it is
considered a periodic tenancy. The tenant is obligated to pay rent until proper notice is given
and must be evicted through legal procedures. In this scenario, the tenant cannot be
summarily evicted by the landlord.

Provide a case summary of key cases related to leases

Antoniades v Villers & Another (1988)

Facts: Mr. Antoniades, the landlord, let a house to Mr. Villers and his girlfriend under
license agreements. The landlord claimed that the agreements did not create tenancies and
served a notice to vacate the premises. The occupants claimed to be tenants and sought
protection under the Rent Acts. The Court of Appeal had to decide whether the occupants had
exclusive possession and were tenants or merely licensees.
Decision: The Court of Appeal found that the occupants did not have exclusive possession,
and the agreements were licenses, not tenancies. The occupants were not entitled to
protection under the Rent Acts, and they were ordered to vacate the premises.

Harvey v Pratt (1965) Iwrl 1025

Facts: Mr. Pratt agreed to lease a property from Mr. Harvey, but the agreement lacked
essential details, such as the commencement date. Mr. Pratt did not occupy the premises, and
Mr. Harvey refused to proceed with the lease. Mr. Pratt registered the document as an estate
contract and sued Mr. Harvey.
Decision: The court held that the agreement was not a valid lease as it lacked essential
details. The absence of the commencement date rendered it uncertain and unenforceable. The
appeal was dismissed, and the registration was vacated.

Francis Mugo & 22 Others v James Bress Muthee & 3 Others (2005) Eklr
Facts: The defendants sought to bar an advocate from acting for the plaintiffs in a case. The
advocate had prepared a lease agreement between the parties, and the defendants intended to
call the advocate as a witness. The defendants argued that the advocate's dual roles
represented a conflict of interest.

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Decision: The court ruled that the advocate could not represent the plaintiffs while also being
a witness for the defendants. It was against the Advocates (Practice) Rules for an advocate to
appear in a matter where they may be required to give evidence. The advocate was barred
from acting for the plaintiffs.

South C Fruit Shop Ltd v Housing Finance Co. of Kenya Ltd [2013] Eklr
Facts: South C Fruit Shop leased premises from a landlady who had taken a loan from
Housing Finance Co. of Kenya. Housing Finance Co. sought to evict South C Fruit Shop
without giving proper notice to vacate. South C Fruit Shop claimed that they were not
notified about the landlady's loan and were entitled to proper notice.
Decision: The court ruled in favor of South C Fruit Shop, stating that they were entitled to
proper notice before eviction. The failure to notify them about the landlady's loan did not
absolve them of their tenancy rights.

Aroko v Ngotho & Another, Civil Case No. 689 of 1991 [1991] KLR
Facts: Mr. Aroko continued to occupy the property after a dispute with the landlord, even
after the specified lease period expired. The landlord did not evict him but continued to
accept rent. Mr. Aroko argued that he was a tenant by sufferance and entitled to one month's
notice before eviction.
Decision: The court held that Mr. Aroko was a tenant by sufferance, and the landlord was
obligated to give him one month's notice before eviction, as required by law.
Cases on Tenancy and Leases:

Street v Mountford (1985) AC 809: This case established that an agreement granting
exclusive possession of a property for a term at a rent creates a tenancy, regardless of how it
is labeled by the parties.

Ratwani v Deganela (1956) EA CA 37: The court held that where there is no exclusive
possession but merely permission to use the property for an agreed fee, it is a license, not a
tenancy.

London & North Western Railway Co. v Buckmaster (1874) 10 LR QB 70: The court
held that an agreement that does not amount to a demise of any portion of the property but
gives a license to use the property is not a tenancy, and the licensee does not have exclusive
possession.

Gusii Mwalimu Investment Co. Ltd & Others v Mwalimu Hotel Ltd (Civil Appeal No.
160 of 1995): This case dealt with the power of distress by the landlord. It emphasized that
the landlord cannot seize the tenant's goods without proper notice and adherence to the law's
requirements.

Charges

What is a charge?

A charge is a form of security for the payment of a debt or the performance of an obligation.
It is an interest in land that secures the payment of money or money's worth or the fulfillment
of any condition.

What does a charge permit the lender to do?

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A charge allows the lender to be in a privileged position as a secured creditor of the borrower.
In the event that the borrower becomes insolvent, the lender enjoys priority over the
borrower's unsecured creditors. This means the lender has both personal and proprietary
rights to recover the value of the charged property.

How does the concept of "priority of charges" work?

Priority of charges refers to the order in which charges are registered. An earlier registered
charge has priority over a later one. This means that if Bank A registers a charge before Bank
B, Bank A's charge will take priority over Bank B's, potentially affecting the rights of Bank
B's charge.

What is the key difference between a formal charge and an informal charge in terms of
recovery?

For a formal charge, if it is registered with powers of sale, the chargee can exercise their
remedies, including selling the property, without going to court. On the other hand, for an
informal charge, the chargee cannot sell the property without obtaining a court order.

How is a formal charge created?

formal charge is created by drafting the charge, having the parties sign it, and then
registering it.

How is an informal charge created?

An informal charge is created through a written and witnessed undertaking with the clear
intention of charging the chargor's land with the repayment of money or money's worth
obtained from the chargee. It may also involve depositing certain documents related to the
land.

What happens when a loan is fully repaid in the case of a charge?

When a loan secured by a charge is fully repaid, the chargor is entitled to discharge the
charge. They have the right to reclaim the property, and the chargee cannot hold onto the
property if the loan has been paid off. There may be a requirement to give one month's notice
or pay one extra month's interest as specified in the charge instrument.

What are some key particulars that should be included in a charge?

Some key particulars to be included in a charge are the names and addresses of the parties
involved, the amount of the loan, the commencement date, the duration of the charge, the title
number of the property, the rate of interest, the consequences of default, and the period of
repayment. Additionally, a charging clause stating the intention to charge the property is
essential in the charge instrument.

What is the priority of charges, and how does it work?

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The priority of charges refers to the order in which charges on a property are ranked in terms
of repayment. The earlier charge always has priority over subsequent charges. If a property is
charged to Cooperative Bank for 4 million and then to Absa Bank for 2 million, in case of
default, Cooperative Bank will be entitled to recover its 6 million before Absa receives
anything. Additionally, if Cooperative Bank further lends money to the borrower after Absa's
charge, Cooperative Bank will have priority over Absa for the new loan. However, if
Cooperative Bank reserves the right to tack, they can be tucked between their first charge and
the Absa charge, enabling them to recover both loans before Absa receives any remaining
funds.

What is the doctrine of tacking, and how does it differ from the right to consolidate?

The doctrine of tacking allows a subsequent lender to insist on repayment of their loan before
repayment to a prior lender. It allows a lender to combine multiple loans and recover them
before any intervening lender, provided the subsequent lender has not received notice of the
intervening charge. However, this right must be reserved in the charge instrument; otherwise,
it is lost.
On the other hand, the right to consolidate accrues to a lender with whom the borrower has
more than one charge on different securities. It allows the lender to decline the redemption of
one charge unless all other charges are also redeemed. This right must also be reserved in the
charge instrument.

What are the requirements for the registration of charges?

The requirements for the registration of charges are as follows:

 A charge instrument in the prescribed form, signed by the chargor or, in the case of a
corporation, by persons attesting the affixation of the common seal.
 The charge must contain a special acknowledgement that the chargor understands the
effect of the registration.
 A specified date for the repayment of the money secured by the charge, and if not
specified, the money shall be deemed repayable three months after the service of a
demand in writing by the chargee.
 A land rent clearance certificate, certifying that no rent is owing, must be presented,
or the land must be freehold.
 Spousal consent in Form LA 55 may be required, depending on the nature of the
charge.

What are the remedies available to chargees in case of default?

 Chargees have several remedies in case of default by the chargor:

 Sue for the repayment of the loan (an in personam remedy based on the contract).
 Appoint a receiver of the income of the charged property to collect rents and profits
and apply them towards the debt.
 Lease the charged land or sublease it, depending on the type of charge.
 Enter into possession of the charged land.
 Sell the charged land under the power of sale, subject to specific notice requirements
and auctioneer rules.

What is the equity of redemption, and how does it work?

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The equity of redemption refers to the borrower's right to redeem the charged property by
repaying the loan even after default. It is embodied in the maxim "once a Charge, always a
Charge." Even if the borrower fails to repay the charge on the contractual date of redemption,
they still have the right to redeem the property. However, if the charge is sold under the
power of sale, the equity of redemption may no longer be available, and the borrower loses
their right to redeem the property.

What does Section 89 of the Land Act state, and how does it affect the equity of
redemption?

Section 89 of the Land Act prohibits any rule of law, written or unwritten, that allows a
chargee to foreclose the equity of redemption in charged land. This means that a chargee
cannot automatically take possession of the charged land or receive rents and profits solely
due to default in payment or performance of obligations under the charge. The equity of
redemption is preserved, allowing the chargor the right to redeem the property even after a
default.

According to Section 90 of the Land Act, what remedies does a chargee have in case of
default by the chargor?

Section 90 of the Land Act outlines the remedies available to a chargee in case of default by
the chargor. If the chargor is in default for one month, the chargee may serve a written notice
on the chargor. The notice must adequately inform the chargor of the nature and extent of the
default, the amount to be paid to rectify the default (if it is a monetary default), or the action
required to rectify the default (if it is a failure to perform a covenant). If the chargor does not
comply within ninety days after the notice, the chargee may sue the chargor for any money
due under the charge, appoint a receiver of the income of the charged land, lease or sublease
the charged land, enter into possession of the charged land, or sell the charged land.

Can the chargee sue for the money secured by the charge without meeting certain
conditions? What are those conditions?

The chargee can sue for the money secured by the charge under specific conditions outlined
in Section 91 of the Land Act.
The conditions are as follows:
(a) The chargor is personally bound to repay the money.
(b) The security is rendered insufficient due to any cause other than the wrongful act of the
chargor or chargee, and the chargee has given the chargor a reasonable opportunity to provide
additional sufficient security, which the chargor failed to do.
(c) The chargee is deprived of the whole or part of the security due to a wrongful act or
default of the chargor.

Can the court postpone chargee's proceedings if the chargor has been deprived of the
security due to wrongful acts or defaults?

Yes, the court may order the postponement of proceedings brought by the chargee under
Section 91(1)(c) of the Land Act if the chargor has been deprived of the security through
wrongful acts or defaults. The court can postpone these proceedings until the chargee has

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exhausted all other remedies relating to the charged land, unless the chargee agrees to
discharge the charge.

What is the process for a chargee to exercise the power of sale under the Land Act?

To exercise the power of sale under the Land Act, the chargee must follow these steps:
 If the chargor is in default of the obligations under the charge and remains in default
after the time provided for rectification in the notice served under section 90(1), the
chargee can proceed to exercise the power to sell the charged land.
 The chargee must serve a notice to sell in the prescribed form on the chargor, and at
least forty days must elapse from the date of the service of that notice before
proceeding to complete any contract for the sale of the charged land.
 The chargee must serve a copy of the notice to sell on various parties, including the
Commission (if the charged land is public land), the holder of the land (if the charged
land is a lease), spouse of the chargor (if applicable), lessees, sublessees, co-owners,
and other chargees of money secured by a charge on the charged land.
 The chargee may proceed with the sale after the notice period if the default is not
rectified.

What duties does a chargee have when exercising the power of sale under Section 97 of
the Land Act?

When exercising the power of sale, a chargee owes a duty of care to various parties, including
the chargor, any guarantor, any chargee under a subsequent charge or under a lien, to obtain
the best price reasonably obtainable at the time of sale (Section 97(1)). The chargee must
ensure that a forced sale valuation is undertaken by a registered valuer before proceeding
with the sale (Section 97(2)). If the charged land is sold for a price that is 25% or below the
market value of comparable interests in similar land, there is a rebuttable presumption that
the chargee breached the duty of care (Section 97(3)).

What protections does the Land Act provide for purchasers of charged land from the
chargee or receiver?

The Land Act provides protections for purchasers of charged land from the chargee or
receiver. A purchaser is not answerable for the loss, misapplication, or non-application of the
purchase money paid for the charged land (Section 99(2)(a)). The purchaser is not obliged to
see to the application of the purchase price or to inquire about the default by the chargor or
the notices served by the chargee (Section 99(2)(b) and (c)). Even if the purchaser has actual
notice of certain matters, they are protected from liability unless there is fraud,
misrepresentation, or dishonest conduct on the part of the chargee (Section 99(3)).

Under what circumstances can a chargee purchase the charged land, and what
requirements must be met?

A chargee can purchase the charged land under specific circumstances outlined in Section
100 of the Land Act. With the court's leave, a chargee can purchase the property if it
satisfies the court that selling the land to the chargee is the most advantageous way to comply
with the duty of care imposed by Section 97(1) (Section 100(2)). If the charged land is sold
by public auction, the chargee may bid and purchase the land if the price bid by the chargee is

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greater than the highest bid at the auction or higher than the reserve price, whichever is
greater (Section 100(3)). The chargee must provide evidence to the Registrar, if required, to
show compliance with the provisions of Section 100 before being registered as the lawful
owner of the land (Section 100(4)).

How should the purchase money received by a chargee from the sale of charged land be
applied?

The purchase money received by a chargee from the sale of charged land should be applied in
the following order of priority as per Section 101 of the Land Act:
 Payment of any rates, rents, taxes, charges, or other sums owing and required to be
paid on the charged land.
 Discharge of any prior charge or other encumbrance subject to which the sale was
made.
 Payment of all costs and reasonable expenses properly incurred and incidental to the
sale or any attempted sale.
 Discharge of the sum advanced under the charge or remaining outstanding, including
any interest, costs, and other money due under the charge.
 Payment of any subsequent charges in order of their priority. The residue, if any, of the
money is to be paid to the person who was entitled to discharge the charge before the
sale.

What does partial discharge of charge refer to, and why is it important in property
development?

Partial discharge of charge refers to a situation where a property is released from a mortgage
or loan agreement in stages or partially rather than being fully discharged all at once. In
property development, when a developer takes a loan for a project and sells individual units
to buyers, each buyer pays off their portion of the loan, and as a result, they expect their
specific property to be discharged from the charge. This is important to safeguard buyers
against potential claims from the developer's creditors and protect their ownership rights.

How do banks and individuals differ in obtaining partial discharges?

Banks are more likely to obtain partial discharges when purchasing properties since they
rigorously ensure all legal requirements are met. On the other hand, individuals who have
occupied properties without receiving their titles or partial discharges may face the risk of the
bank claiming the property since their ownership rights have not been formally established.

What are the similarities and differences between the Land Act (LA) and the Land
Registration Act (LRA) concerning the power of sale and notice requirements?
Similarities:
 Both LA and LRA provide the charge (lender or mortgagee) with the power to sell the
charged property in case of default by the charger (borrower or mortgagor).
 Both Acts outline the procedures for the sale of the charged property and the
distribution of sale proceeds.
 Both Acts require the charge to serve notice to the charger before exercising the power
of sale.

Differences:

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  Notice Requirement: LA requires a 30-day notice to be served on the charger before
exercising the power of sale, while LRA requires a 15-day notice.
 Consent Requirement: Under LRA, the charge can exercise the power of sale without
the intervention of the court, whereas under LA, the charge must obtain a court order
to exercise the power of sale.
 Transfer Registration: LA specifically requires notices to the Registrar before the sale,
while LRA does not have this requirement.

What issues are present with the form under the Land Registration Act (LRA)
concerning partial discharge of charges, and how does it affect the transfer process?

The form provided in the LRA for partial discharge of charges seems to be defective, as it is
intended for cases where the charge takes over the land, rather than the transfer being the
charging party. The form may cause confusion and delays in the transfer process. It is crucial
to understand the specific requirements and provisions of the Act to determine when leave of
court is necessary for the transfer and avoid potential issues with the form.

What are some key cases on charges?

Stella Mokeira Matara v Thaddues Mose Mangenya & Another (2016) eKLR Civil
Appeal No. 63 of 2014:

 The case involved issues related to the validity of a charge on suit properties, spousal
consent, and the exercise of judicial discretion in dismissing an application for an interim
injunction.
 Section 78(1) of the Land Act (LA) 2012 applies to all charges on land, including those
made before the Act's commencement.
 Section 79(3) of the LA states that a charge of a matrimonial home shall be valid if
executed by the chargor and any spouse living in that home or with evidence of assent
from all such persons.
 The Court of Appeal upheld the trial court's decision that spousal consent was not
required for the charge created before the Act's commencement.

Palmy Company Limited v Consolidated Bank of Kenya Limited (2014) eKLR (Civil
Suit No 527 of 2013):
 The case involved a loan provided by the Consolidated Bank of Kenya Limited to
Palmy Company Limited for constructing residential flats.
 Issues included compliance with the chargee's power of sale, the duty to value the
property, and the amount claimed by the defendant.
 The court emphasized the importance of proper notification and adherence to legal
requirements before exercising the power of sale.
 Partial discharge of the property from the sale was considered necessary if certain parts
were excluded.

Albert Mario Cordeiro & another v Vishram Shamji [2015] eKLR (Civil Suit No. 329
Of 2014):
o The case involved the enforceability of guarantee and charge documents
signed by Mrs. O'Brien in securing a loan from Barclays Bank.
o The House of Lords ruled that the guarantee and charge documents were
unenforceable due to inadequate explanation and advice provided by the bank.

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Angwenyi & Anor v. NIC Bank Ltd (2004):
 The case involved the sale of a property offered as security for a loan and a separate
hire purchase agreement.
 The court granted a temporary injunction to protect the plaintiffs from the sale,
considering the defendant bank's questionable conduct.

Nookes v. Rice (1902):

 The case determined that a covenant prohibiting certain activities on the property
becomes void upon redemption of the mortgage.

 Overall, these cases emphasize the importance of adhering to legal requirements,

providing adequate explanations and advice, and protecting the rights of borrowers and
property owners in mortgage and charge transactions. They underscore the
significance of proper notices and notifications before exercising the power of sale and
ensuring the fair treatment of individuals involved in mortgage agreements.

What is the difference between mortgage and charge?

A mortgage is an internal term that a bank uses to describe a loan an individual has taken out
for a property. Therefore, financial institutions use this term to advance various types of
loans. The result of a mortgage is that a charge is registered on the property, so a party cannot
use the property as security for another financial institution. The charge is what gets
registered, but the title remains in the landowner's name, not in the financial institution's
name. The encumbrance section will state that the property will be charged.

What is the difference between a charge and a discharge?

A charge is a legal right or interest that a lender (chargee) holds over a property to secure a
debt or obligation owed to them by the property owner (chargor). It acts as a form of security
interest and is typically established through a written agreement, such as a mortgage or loan
agreement. The charge allows the lender to take certain actions, such as selling the property,
if the borrower fails to fulfill their obligations. It restricts the property owner's full ownership
rights until the debt is fully satisfied.

On the other hand, a discharge refers to the removal or release of the charge from the
property. This occurs when the debt or obligation secured by the charge is fully paid off, or
when both parties agree to release the charge through a legal process. When a discharge is
granted, the property is no longer encumbered by the charge, and the owner regains full
ownership rights without any restrictions or obligations associated with the charge. The
discharge is usually registered at the Land Registry, ensuring that future transactions can
proceed without the previous charge affecting the property's title.

In summary, a charge places a security interest on a property to secure a debt, while a

discharge removes this security interest once the debt is settled or released through a legal
process.

What is priority ranking in conveyancing?

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Priority ranking in conveyancing refers to the order in which charges or encumbrances on a
property are ranked based on their registration dates. When multiple charges or interests exist
on a property, the priority ranking determines which charge or interest has precedence over
others in the event of a dispute or when the property is sold or foreclosed.
In the context of the information provided, priority ranking means that the charge or
encumbrance that is registered first on the property holds a higher priority over any other
charge that is registered subsequently. This principle applies both to charges held by financial
institutions, such as loans or mortgages, and to other types of interests, like easements or
restrictive covenants.
Here's how priority ranking works in conveyancing:
 First in Time, First in Right: The principle "first in time, first in right" means that the
charge or interest that is registered first on the property will take priority over any other
charges or interests registered later. In other words, the earliest registered charge has a
higher ranking than any later registrations.
 Effect on Lenders and Borrowers: For lenders, this means that the earlier registered
charge has a higher claim on the property in case of default by the borrower. If the
borrower has multiple loans or mortgages, the lender whose charge was registered first
will have the first right to the proceeds from the sale of the property to recover their debt.
 Due Diligence by Lenders: Lenders need to conduct thorough due diligence before
providing a loan to ensure there are no existing charges or encumbrances on the property.
If an earlier charge exists, the new lender will be aware that their charge will have a lower
priority until the earlier charge is released or satisfied.
 Buyer's Concerns: For property buyers, understanding priority ranking is essential,
especially when purchasing a property with existing charges. The buyer should be aware
of any earlier registered charges and their implications on the property's ownership.
In summary, priority ranking in conveyancing ensures that the charge or encumbrance
registered first on a property has a higher priority over any other charges or interests
registered later. This concept is crucial for lenders, borrowers, and property buyers to
understand to protect their interests and avoid disputes over property ownership.

What happens when there is a sale of land from an illegal transaction?

When there is a sale of land from an illegal transaction in Kenya, the consequences can be
significant and can affect both the seller and the buyer. An illegal transaction typically
involves a transfer of land that violates the law, regulations, or contractual agreements
governing land transactions. Here are some potential consequences of a sale of land from an
illegal transaction in Kenya:
 Voidable Sale: In most cases, an illegal transaction is considered void or voidable. This
means that the sale is not legally valid, and the transfer of ownership is not recognized. If
the transaction is found to be illegal, the sale may be nullified, and the property's
ownership may revert to the original owner.
 Legal Action: The affected party, whether it is the seller or the buyer, may take legal
action to challenge the transaction's validity. This could lead to a court case to determine
the legality of the sale and the appropriate remedy.
 Loss of Ownership and Rights: If the sale is deemed illegal and voided, the buyer who
acquired the land through the illegal transaction may lose ownership of the property. They
may also lose any rights associated with the property, such as the right to develop it or
receive income from it.

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 Refund of Purchase Price: If the buyer is found to have acquired the land through an
illegal transaction, they may be required to refund the purchase price to the seller. The
buyer could also be liable for any damages incurred by the seller due to the illegal sale.
 Criminal Consequences: In some cases, illegal land transactions may involve criminal
activities, such as fraud or forgery. Those involved in such activities could face criminal
charges and potential imprisonment if found guilty.
 Inability to Transfer Title: If the sale is deemed illegal, the buyer may not be able to
transfer the title to another party, as they do not legally own the property.
It is crucial for both sellers and buyers to conduct due diligence and ensure that land
transactions are carried out in accordance with the law. Engaging the services of a qualified
lawyer and conducting thorough searches at the relevant land registry can help prevent
involvement in illegal land transactions. Buying property through reputable and trusted
channels reduces the risk of being party to an illegal transaction.

What is Quicquid plantatur, solo solo cedit?

 "Quicquid plantatur, solo solo cedit" is a Latin phrase that translates to "whatever is
planted or affixed to the land, belongs to the land." This legal principle, also known as the
principle of "situs," is commonly applied in property law to determine the ownership of
fixtures or things attached to land.
 In the context of property law, fixtures refer to items or improvements that are affixed to
the land or property in such a way that they become part of the real property and cannot
be easily removed without causing damage. Examples of fixtures include built-in
cabinets, fixed lighting fixtures, and permanent structures like fences or buildings.
 According to the principle of "quicquid plantatur, solo solo cedit," when a fixture is
attached to the land or property, it becomes part of the land and is owned by the owner of
the land. This means that even if the fixture was initially owned by someone else, once it
is affixed to the land, the ownership of the fixture transfers to the landowner. If the land is
sold or transferred to another party, the fixtures on the land are automatically included in
the transfer.
 This principle is crucial in property transactions and disputes, as it helps determine the
rights and responsibilities of the parties involved in relation to fixtures on the land. It
clarifies the ownership of fixtures and prevents disputes over items that have become part
of the land and are therefore considered part of the real property.

What is the Nemo dat Rule and its exceptions?

The Nemo dat rule, also known as "nemo dat quod non habet," is a fundamental principle of
property law that states "no one can give what they do not have." In essence, it means that a
person cannot transfer or pass on a better title to a third party than what they themselves
possess. This principle is crucial in protecting the rights of the true owner of the property and
ensuring the validity of transactions involving goods or property.
Exceptions to the Nemo dat rule in property law include:
 Estoppel (conduct of the owner): If the true owner of the property, through their actions
or conduct, leads others to believe that the person in possession has the authority to sell or
transfer the property, the principle of estoppel may apply. In such cases, the true owner
may be prevented from denying the transfer of the property to a bona fide purchaser.
 Sale under a common law or statutory power: In certain situations, the law grants
specific powers to certain individuals or entities to sell or transfer property, even if they

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 are not the legal owner. For example, a trustee in bankruptcy may be authorized to sell a
bankrupt's assets to satisfy creditors.
 Sale under a voidable title: If a person acquires property under a voidable title (a title
that can be voided or canceled by the true owner), and they sell the property to a bona
fide purchaser, the buyer may obtain a good title, even if the original seller did not have a
valid title.
 Sale by a mercantile agent: A mercantile agent is a person who is authorized to deal
with goods on behalf of the true owner, such as a commission agent or a broker. If a
mercantile agent sells goods to a bona fide purchaser, the buyer may acquire a good title,
even if the agent did not own the goods.
 Sale by a seller in possession: If a seller is in possession of goods and has the authority
to sell them, they can pass a good title to a bona fide purchaser, even if the seller is not
the owner.
 Sale by a buyer in possession: Similarly, if a buyer is in possession of goods and sells
them to a bona fide purchaser, the buyer can pass a good title, even if the buyer has not
yet paid for the goods and does not own them outright.
It is essential for buyers and sellers to be aware of the Nemo dat rule and its exceptions to
ensure that property transactions are valid and legally binding. By understanding these
principles, parties can protect their rights and avoid potential disputes over ownership and
title.

How to proceed where purchaser has full price, vendor is a willing seller but the land
has a charge

In the scenario where the purchaser has the full price, the vendor is willing to sell, but the
land has an existing charge, a professional undertaking could come into play when dealing
with the chargee (the entity or individual holding the charge).

For example, if the chargee requires the outstanding debt to be paid off before releasing the
charge, the vendors advocate may provide a professional undertaking to the chargee. This
undertaking would guarantee that the full price will be paid to the chargee upon the
completion of the sale. The chargee can rely on this commitment from the vendors advocates
a form of security, allowing them to proceed with the discharge of the charge without waiting
for the sale to be completed.

Can a foreigner own land in Kenya?

Under the Consitution of Kenya 2010, Article 65,
65. (1) A person who is not a citizen may hold land on the basis of leasehold tenure only, and
any such lease, however granted, shall not exceed ninety-nine years.

How do you do a land search online?

You can perform a land search online in Kenya through the eCitizen platform. Here's a step-
by-step guide on how to do it:
1. Visit the eCitizen website: Go to the eCitizen website at https://www.ecitizen.go.ke/.

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 2. Sign in or create an account: If you already have an eCitizen account, sign in using
your credentials. If you don't have one, you'll need to create an account to access the
services.
3. Access the Land Ministry services: Once logged in, navigate to the "Services" tab on
the eCitizen platform and click on the "Ministry of Lands and Physical Planning"
section.
4. Select "Land Search": Under the Ministry of Lands and Physical Planning services,
you should find the option for "Land Search." Click on it to proceed.
5. Enter the details: You will be required to provide specific details for the land search,
such as the title number or plot number. Make sure you have the correct and accurate
information before proceeding.
6. Make the payment: Land searches may attract a fee, which you'll need to pay through
the eCitizen platform. Ensure you have the necessary payment options available, such
as M-Pesa or credit/debit cards.
7. Receive the land search report: After completing the payment, the system will process
your request, and you should receive the land search report online. You may be able
to download and print the report for your records.
Please note that the online services and procedures might change or update over time, and it's
essential to check the eCitizen website for the most up-to-date information and guidelines on
performing a land search online in Kenya. Additionally, I recommend verifying the current
process with the Ministry of Lands and Physical Planning or a relevant authority before
proceeding with your land search.

What is controlled transactions in conveyancing?

In the context of conveyancing in Kenya, controlled transactions refer to certain types of

property transactions that are subject to regulation and oversight by the government or
relevant authorities. These regulations are in place to ensure transparency, fairness, and
compliance with legal requirements in the transfer of property.
The concept of controlled transactions is primarily governed by the Land Control Act (LCA)
in Kenya. Some key points related to controlled transactions in conveyancing include:
 Consent from the Land Control Board: Certain transactions involving agricultural land
or property in designated areas known as control zones require the prior approval or
consent of the local Land Control Board. These transactions include transfers, leases,
mortgages, and subdivisions.
 Application for consent: To obtain consent for a controlled transaction, an application
must be made to the relevant Land Control Board. The application should include the
necessary documents and information as prescribed by the LCA and any applicable
regulations.
 Consideration of public interest: The Land Control Board considers whether the
proposed transaction is in the public interest. Factors such as land use, environmental
impact, preservation of cultural heritage, and socio-economic considerations may be
taken into account during the evaluation process.
 Conditions and restrictions: The Land Control Board may impose conditions or
restrictions on the approved transaction, such as requirements for the use of the land,
development obligations, or limitations on further transfers.
 Land near the coastal line: Where your property is touching near the coastline border
consent from the county government.

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 Compliance and penalties: Non-compliance with the provisions of the LCA or failure to
obtain the necessary consent for a controlled transaction may result in penalties, including
fines or imprisonment.

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PROBATE AND ADMINISTRATION

What is the law of succession?

The law of succession is a branch of law that deals with the inheritance of property and assets
after a person's death.
The law of succession serves three fundamental philosophical purposes:
 Acquisition of property: It recognizes that individuals need to acquire and accumulate
property for their sustenance and well-being. Inheritance is one of the ways through
which individuals acquire property.
 Continuity of property ownership: Since people eventually pass away, the law of
succession ensures that the property they leave behind continues to be owned by rightful
claimants or beneficiaries.
 Control over property: Individuals have a natural desire to retain some control over
their property even after their demise. The law of succession provides a framework
through which individuals can make decisions regarding the distribution of their property
after death.

What is the The Relationship between Succession Law and Other Areas of Law?

The relationship between the law of succession and other areas of law is closely
intertwined:
 Family law: Family law and succession law are closely connected. After the death of a
family member, the distribution of their property often involves family members as
beneficiaries or heirs. In testate succession (when there is a valid will), there is usually a
moral obligation on the part of the testator (the person making the will) to provide for
their family members. Many succession disputes revolve around family law issues, such
as determining the rightful beneficiaries based on family relationships.
 Law of trusts: In the administration of estates of deceased persons, the issue of trusts
frequently arises. The property of the deceased is vested in the personal representative
(executor or administrator), who holds the assets for the benefit of the creditors and
beneficiaries. This creates a fiduciary relationship between the personal representative
and the beneficiaries. The personal representative essentially acts as a trustee for the
estate assets.
 Property law: The law of succession is concerned with the transfer of property rights
from the deceased to their surviving beneficiaries or heirs. Upon the grant of
representation (probate or letters of administration), the property vests in the personal
representative. The personal representative has broad powers over the management of the
property, including selling and investing it. The distribution of assets to creditors and
beneficiaries involves the transfer of property titles.

Overall, the law of succession plays a crucial role in ensuring that property is passed on to
rightful heirs or beneficiaries according to the deceased person's wishes (if there is a valid
will) or in accordance with the applicable laws of intestacy (if there is no will). It is essential
for individuals to understand and plan for their succession to avoid disputes and ensure the
smooth transfer of their assets after their demise

Marriage

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What is the definition of a marriage in Kenya, and how is it governed?

In Kenya, marriage is defined as the voluntary union of a man and a woman, whether in a
monogamous or polygamous union, registered in accordance with the 2014 Marriage Act.

What are the different kinds of marriages recognized under the 2014 Marriage Act?

Under S 6 of the MA 2014, a marriage may be registered under the 2014 Marriage Act, if it
is celebrated:
- In accordance with the rites of a Christian denomination;
- As a civil marriage;
- In accordance with the customary rites relating to any of the communities in Kenya;
- In accordance with the Hindu rites and ceremonies; and
- In accordance with Islamic law.

What are the declaration of marriage registration areas?

This is found in S 7 of the MA .The Cabinet Secretary may, by notice in the Gazette, declare
any area of Kenya to be a registration area for the purposes of this MA.

Can you convert a marriage from a monogamous marriage to potentially polygamous

marriage?

Under S 8 of MA, there may be a conversion of marriages.

 A marriage may be converted from being a potentially polygamous marriage to a

monogamous marriage if each spouse voluntarily declares the intent to make such a
conversion.
 A polygamous marriage may not be converted to a monogamous marriage unless at the
time of the conversion the husband has only one wife.
 A declaration under subsection (1) shall be made in the presence of a marriage officer and
shall be recorded in writing and signed by each spouse.
 A marriage officer before whom a declaration is made under subsection (3) shall
forthwith transmit a copy thereof to the Registrar.
 Where a declaration is made under subsection (1), the Registrar shall take possession of
the certificate registering the marriage as potentially polygamous and shall issue a
certificate registering the marriage as monogamous.
 The Registrar shall enter the details of converted marriages in the prescribed manner into
a register maintained for that purpose.

What does "potentially polygamous" mean in the context of marriage?

"Potentially polygamous" means that the marriage system allows for polygamy, but at the
time, the individual has only married one spouse and has the potential to enter into additional
marriages with multiple spouses.

Can an ex-husband or wife be entitled to the estate of a deceased spouse?

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No, under the LSA succession amendment of 2021, wife is replaced by spouse and former
wives no longer exist. Section 29 of the Act no longer defines "dependants" to include former
wife or wives.

Can a party have a subsisting marriage?

A party cannot have a subsisting marriage while being married to another person. According
to Section 9 of the Marriage Act, a married person is not allowed to contract another marriage
unless the first marriage is a polygamous one.
Subsisting marriages is found in S 9 of the MA. Subject to S8 MA a married person shall
not, while—
(a) in a monogamous marriage, contract another marriage; or
(b) in a polygamous or potentially polygamous marriage, contract another marriage in any
monogamous form.

What are the conditions related to capacity in a marriage?

To have the capacity to marry, parties must meet certain conditions including:
 Being of opposite gender
 Not being in a subsisting marriage
 Being of the age of 18 years or above

 Not being within prohibited degrees of relationship- Marriages conducted between related
persons are regarded as incestuous and are prohibited for health reasons in order to avoid
in- breeding. Prohibited degree arises from relationship by way of consanguinity or
affinity. Consanguinity is where there is blood relationship e.g. brother, sister, mother,
father etc. Affinity on the other hand is relationship by way of marriage, e.g. mother-in-
law, father-in-law, sister-in-law etc.
 Parties must also have the soundness of mind at the time of entering into the marriage.

What does section 10 of the MA say about consanguinity?

S10 of the MA says a person cannot marry his/her:

- Grandparent, parent, child, grandchild, sister, brother, cousin, great aunt, great uncle,
aunt, uncle, niece, nephew, great niece or great nephew;
- The grandparent, parent, child or grandchild of that person's spouse or former spouse;

- The grandparent, parent, child or grandchild of that person's former spouse;

- Adopted child/parent.
- A relationship of the half-blood is also a bar to marriage

What are the formalities required for a valid marriage?

For a marriage to be valid:

- Parties must give notice of their intention to marry.
- Consent freely to the union

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- Celebrate the marriage in a public place by a licensed person (marriage officer or church
minister),
- Register the marriage.
- The presence of competent witnesses is also required.

What makes a marriage void?

If the formalities and conditions mentioned above are not fulfilled.

S 11 of the MA states that union is not a marriage if at the time of the making of the union—
 Either party is below the minimum age for marriage
 The parties are within the prohibited marriage relationship;
 Either party is incompetent to marry by reason of a subsisting marriage;
 By order made under S 25, the court has directed that the intended Marriage is not to be
contracted;
 The consent of either party has not been freely given;
 Either party is absent from the ceremony;
 Both parties knowingly and wilfully permit a person who is not authorised to do so to
celebrate the union;
 Either party is mistaken about the identity of the other party; or
 Either party knowingly or wilfully enters into the marriage for fraudulent purposes.

What makes a marriage voidable?

Section 12 of the Marriage Act Voidable marriages. Subject to section 50, a marriage is
voidable if—
at the date of the marriage—
 either party was and has ever since remained incapable of consummating it;
 either party was and has ever since remained subject to recurrent attacks of insanity;
 there was a failure to give notice of intention to marry under section 25;
 notice of objection to the intended marriage having been given was not withdrawn or
dismissed;
 the fact that a person officiating the marriage was not lawfully entitled to officiate;
 failure to register the marriage.

When does one petition the court for both void and voidable marriages? what is a
period what is the duration to petition the court to nullify?

 You only go for nullity from 12 months down (1 year and below). After one year you are
barred from law to file for nullity. If you married on 1st of January you can only go to
court before they build 30th if 30th would be a weekday, not above.
 For divorce it is after three years. But if you want to divorce before, you can petition the
court for leave to petition for divorce before three years
 Separation is that you enter into an agreement and then you file import that you are
separating. And it is mostly for one year. After the one year if you are still not
comfortable to stay together, you can ask the court to petition for divorce.

How is property divided after divorce?

The under article 45(3) of the Constitution Parties to a marriage are entitled to equal rights
at the time of the marriage, during the marriage and at the dissolution of the marriage. During

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the divorce what is acquired during the marriage is usually split in equal shares. but note that
supreme Court have come to a determination that a case will be determined on case by case
basis.

What amounts to contribution?

As per the Matrimonial Property Act section 2 "contribution" means monetary and non-
monetary contribution and includes—
(a) Domestic work and management of the matrimonial home;
(b) Child care;
(c) Companionship;
(d) Management of family business or property; and
(e) Farm work;

What are the rights and obligations does marriage gives parties?

- Right to succession
- Right to stay in your matrimony home
- Maintenance is a right
- Spousal privilege
- Congenial rights
- Consortium
- Right to sexual intercourse.
- Right to name

Christain Marriages

What is the nature of Christian marriages according to the Marriage Act?

Christian marriages are monogamous, as stated in S 6(2) of the MA. This means that it
allows only one spouse at a time in the marriage. Furthermore, a party to the marriage must
profess the Christian religion, as per S 17 of the MA

What are the requirements related to notice of intentions to marry in Christian

marriages?

This process is regulated by Sections 25 and 26 of the Marriage Act.

Prior to the ceremony, notice of intentions to Marry & Notice of objection:

The couple will firstly post a notice of intention to marry at a public place of worship
between 21 days and three months before the ceremony containing the following:

- Names and ages of the parties and where they ordinarily reside.
- Names of the parents of the parties, if known, and the places where they ordinarily reside;
- A declaration that the partners are not within appropriate relationship;
- marital status of each party

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- in the case of divorced or widowed individuals, relevant documents like divorce decrees
or death certificates
- widow or widower, a copy of the death certificate; And
- date and venue of the marriage/ceremony

Can anyone object to a Christian marriage, and what are the requirements for such a
notice of objection?

 Yes, anyone who knows of an intended Christian marriage may give a written notice of
objection. This notice should be submitted to the person in charge of the public place of
worship where the notice of intended marriage has been posted.
 The notice of objection must contain the name of the person giving the objection, their
relationship with either of the intended parties, and the reason for objecting to the
intended marriage.
 These provisions can be found in Section 23(19)(1) and (2) of the MA.

Who is authorized to conduct the marriage ceremony in Christian marriages?

 The marriage ceremony in Christian marriages must be conducted by a licensed church

minister appointed under S 50 of the MA.
 This minister has the authority to solemnize the marriage and make it legally valid.

Civil Marriages

What are civil marriages, and how are they defined in the Marriage Act?

Civil marriages are marriages that are registered under the Marriage Act. According to S 6(1)
(b) of the MA, a marriage may be registered as a civil marriage. These marriages are
monogamous, as stated in S 6(2) of the Act.

How are civil marriages celebrated, and who performs the marriage ceremony?

 Civil marriages are celebrated by the Registrar in the place determined by the Registrar,
as mentioned in S 24 of the MA
 When a man and a woman intend to marry, they should give a written notice of their
intention to marry to the Registrar and the person in charge of the place where they plan
to marry. This notice should be given not less than 21 days and not more than three
months before the intended marriage.
 The notice must include various details, such as the names and ages of the parties, their
place of residence, names of parents, a declaration of no prohibited relationship, marital
status of each party, and the dates and venue of the marriage ceremony, as per Section
25(1) of the Act.

What happens after a civil marriage has been celebrated in the presence of a Registrar?

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 After a civil marriage has been celebrated in the presence of a Registrar, the Registrar will
complete and sign a marriage certificate in the prescribed form. The parties to the
marriage and the witnesses will also sign the marriage certificate. The Registrar will then
give two copies of the marriage certificate to the parties and retain one copy, as stated in
S 35 of the MA
 Who performs civil marriages, and what is the process for registering civil marriages?
 Civil marriages are performed by the Registrar, as stated in S 50(2) of the MA. After the
marriage has been celebrated, the Registrar will register the civil marriage, as provided in
S 54 of the MA

Customary Marriages

What are customary marriages, and how are they recognized in Kenya's legal system?

Customary marriages are marriages celebrated in accordance with the customary rites of any
of the communities in Kenya. They are recognized under the Marriage Act, and S 6(1)(c) of
the Act allows for the registration of such marriages.

When will customary law be allowed to be used?

Section 3(2) of our Judicature Act list African customary law as one of the sources of law
in Kenya.

Judicature Act S 3 – gives courts the power to apply customary law into marriages
That application can only take place if it meets these 3 guidelines– this is the test the registrar
will apply to see if customary marriage will be registered.
(i) It is not repugnant to justice.
(ii) It is not repugnant to morality.
(iii) It is not Inconsistent with codified law.

What are the requirements that make a customary marriage valid?

To be valid, a customary marriage must fulfil several conditions.

- Firstly, the customs of the communities involved must be followed.
- Secondly, the marriage must be within the parameters of the Marriage Act.
- Lastly, in most communities, the payment of dowry or bride price, as per their customs, is
an essential element of a valid customary marriage.

What types of marriages are included in customary law?

 Customary law marriages in Kenya can be formal or informal.

 Formal marriages consist of three components
- capacity (dependent on gender and tribal initiation ceremonies)
- consent from both parties and their parents
- the payment of dowry.

 Informal marriages are those that do not follow any formality and cannot be registered
under the Marriage Act. Examples of customary law marriages include

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- Wife/widow inheritance: Wife/widow inheritance is a customary practice found among
several tribes, typically triggered when a husband predeceases his wife. The primary
intent of this tradition is to provide for the deceased's widow and her children, ensuring
their care and welfare. Over time, the cultural dynamics evolved, and the inheritor often
regarded the widow as his wife, irrespective of whether he already had another wife or
not. Importantly, in this system, the children from the deceased man remain as his
descendants in terms of inheritance. They are entitled to the deceased man's property and
do not claim any inheritance from the new husband, or the 'inheritor', who has his own
lineage for such purposes.
- Levirate marriages: Levirate marriages are a specific cultural practice where, if a
husband predeceases his wife, a relative or brother of the deceased husband steps in and
assumes his role. This setup primarily ensures the continuity of the deceased's family line
and the welfare of the widow. One crucial aspect of Levirate marriages is that any
offspring born out of this new union are considered the children of the deceased husband,
not of the inheriting relative or brother. This practice ensures that the legacy and lineage
of the deceased are preserved and carried forward.
- Woman-to-woman marriages: Woman-to-woman marriages, practiced by all tribes in
Kenya, occur in situations where a woman is barren. In these circumstances, she may
marry another woman specifically for the purpose of having children. Any children born
from this union are recognized as the children of the barren woman, who assumes the
husband's role in this relationship. This form of marriage can take place regardless of
whether the husband of the barren woman is alive or deceased. If the husband is still
living, the other woman is permitted to have sexual relations with him solely for
procreation. In the event of the husband's death, the barren woman has to select a man
from the deceased husband's family for procreation purposes, or she may leave the
decision to the woman she marries to choose whom she wants to have children with.
- Sororate unions: Sororate unions, notably practiced among the Luo tribe, occur when a
wife predeceases her husband. In such cases, her family may offer her younger sister as a
replacement to assume the role of the deceased wife. This often happens when the family
is unable to return the bride price and thus provide their daughter as a substitute. Sororate
unions can also be initiated when a wife is unable to have children, and she invites her
sister to marry her husband with the primary purpose of procreation. The younger sister's
role, therefore, extends to both companionship and the preservation of the family lineage
through having children.
- Elopement (later registered if accepted): Elopement is a practice where individuals
engage in a marriage process without the initial consent of their parents, typically because
the parents have refused their approval. This often involves the couple gradually carrying
out the customary law procedures related to marriage. Over time, after recognizing their
limited influence or inability to deter the union, the parents may eventually accept the
situation. In essence, elopement is a mode of marriage where the couple takes the
initiative and proceeds with their intentions despite initial parental resistance.
- Forcible marriages: Forcible marriages typically occur in families where only daughters
are present, and it's the cultural obligation of the last daughter to produce male heirs for
her parents. Particularly practiced by the Nandis and Kipsigis tribes, this form of marriage
binds the youngest daughter to remain at home and bear children, especially male ones,
with a man of her choice. These children then belong to her father's lineage. Notably, the
man involved is aware that he won't be able to claim any rights over the children.
Generally, the woman often chooses a man who is already married for this purpose.
Despite not being formally married, her societal status aligns with that of a married
woman, and she carries the responsibility of perpetuating her family lineage.

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- Child marriages (later registered when of age of majority and married): Child
marriages, often later officially registered when the individuals reach the age of majority,
involve children being betrothed to each other at a young age, with dowry payment
occurring while they are still minors. Once they attain maturity, the bride is then taken to
her husband's home. This practice is typically prevalent among prominent families who
wish to solidify their bonds or during times of famine when resources are scarce. It has
been notably common among the Kisii, Kuria, Kalenjin, Pokot, and Teso tribes.
- Posthumous marriages: Posthumous marriages, a practice notably common among the
Kisii tribe, involve a unique tradition where a dowry is paid for a lady after the intended
groom's death. She is then brought to the deceased man's home, and a marriage ceremony
is performed with the deceased before his burial. Following this, she assumes the role of a
wife within the family compound. Any children she has thereafter are recognized as
belonging to the family of the deceased man. Essentially, this practice ensures the
continuity of the deceased's lineage and provides a familial structure for the woman.

What are the conditions that apply when contracting a customary law marriage?

Several conditions apply when contracting a customary law marriage

Capacity:
- Under the MA parties must be 18
- Marital Status of Parties is important. For a man, he may be single or married since
customary law allows for polygamy. However women are required to be single in most
African communities. This means she ought to be unmarried.
- Consent is essential. Under customary law, consent was required both from the spouses
and their families. One was married into a family, so that the families’ consent was
essential in marriage.
- Under the current system, one can only marry outside the prohibited degrees established
in the MA for all types of marriages.

What are the formalities involved in a customary law marriage?

Customary law marriages involve certain formalities:
- The parties undergo a betrothal ceremony where the intention to marry is expressed, and
an agreement is secured.
- The payment of dowry is made after the betrothal. Token amount is sufficient S43 MA
- The marriage is celebrated through a formal ceremony, cohabitation, or elopement,
depending on the customs and practices of the community involved.

How are customary marriages registered, and what are the requirements for
notification?

 To register a customary marriage, the parties must notify the Registrar within three
months of completing the relevant ceremonies or steps required to establish the marriage's
status in the community.
 The notification should specify the customary law applied in the marriage and contain a
written declaration signed by the parties in the presence of two adult witnesses who
played key cultural roles in celebrating the marriage.
 The signing can be done through other means, such as thumb impressions.

Hindu Marriages

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What is the definition of a Hindu according to the Marriage Act, and which religions
fall under the category of Hindu marriages?

As per the Marriage Act, "Hindu" includes a person who follows Hinduism in any form, such
as Virashaiva, Lingayat, Brahmo, Prarthana, or Arya Samaj. Additionally, Buddhists of
Indian origin, Jains, and Sikhs are also considered Hindus for the purpose of Hindu
marriages.

What are the conditions regarding capacity to contract a Hindu marriage?

To contract a Hindu marriage, the parties must meet certain conditions of capacity. These
include

- Neither party being married to another person

- Both parties being of sound mind at the time of marriage
- Both parties having attained the age of 18 years
- The parties not being within the forbidden degrees of consanguinity and affinity under the
Marriage Act.

What are the formalities required to contract a Hindu marriage?

Traditionally, two forms of rites may be performed when a Hindu marriage is being
celebrated. The rites include:

 Saptapadi ceremony: Under this ceremony the bride and the bridegroom go round a
sacred fire seven times and on the seventh round the marriage is deemed to have been
celebrated; and
 Anand Karaj ceremony: Here parties go round their holy book known as the Granth
Sahib four times and on the fourth round the marriage is deemed to be complete and
binding.

Additionally, Hindu marriages must be registered, and the person authorized to officiate the
marriage is required to record the details and deliver the record to the Registrar for
registration.

How are Hindu marriages registered, and who can officiate these marriages?

Hindu marriages are registered by the person authorized by the Registrar and in accordance
with Hindu religious rituals of one of the parties involved. S47 of the MA provides for the
officiation of Hindu marriages by authorized persons who perform the ceremonies as per
Hindu religious customs.

What are the matrimonial rights and duties in Hindu marriages?

In Hindu marriages, the parties have the right to consortium, similar to civil and Christian
marriages. The wife also has the right to maintenance. Traditionally, the wife has a duty to
cohabit with her husband and submit herself to his authority as per Hindu customs.

How does the Marriage Act address Islamic marriages, and what does it say about the
rights granted under Islamic law?

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The Marriage Act of 2014 now addresses Islamic marriages, but it does not extensively
regulate the practice. According to S3 of the Act, parties to an Islamic marriage shall only
have the rights granted under Islamic law. Additionally, any provision of the Act that is
inconsistent with Islamic law and practices shall not apply to individuals who profess the
Islamic faith.

What are the conditions relating to capacity to contract an Islamic marriage?

 To contract an Islamic marriage, the parties must be a biological man and woman who
have reached the age of puberty.
 A Muslim man may marry up to four wives, but not simultaneously. A woman must be
single, which includes widowed or divorced, and she must wait for about four months
before contracting another marriage, during a period called "Iddat."
 Consent of the parties and the absence of prohibited degrees of consanguinity and affinity
are also important factors.

What are the formalities required to contract an Islamic marriage?

 An Islamic marriage under the Marriage Act must be officiated by a kadhi, sheikh, or
imam authorized by the Registrar and celebrated in accordance with Islamic law.
 The officiating person is responsible for recording the details of the marriage, issuing a
certificate of marriage to the parties, and delivering the record and certificate to the
Registrar.
 In the Islamic law context, an offer and acceptance must be made in the presence of
witnesses, and the man is required to pay a form of compensation known as "Mahar" to
the wife.

What rights and duties are bestowed upon the parties in Islamic marriages?
 In Islamic marriages, the wife is entitled to a dowry, and the husband has a legal
obligation to maintain her to the standards she is used to.
 Both spouses have the right to each other's consortium and to enforce performance of
marital duties.
 The husband also has the right to exercise marital authority over the wife and children. In
the case of a man having multiple wives, he is obligated to treat each wife with kindness
and equality.

What is the importance of registering marriages, and when did the requirement for
registration come into effect in Kenya?

The registration of marriages is essential as it formalizes the marital union and provides legal
recognition to the relationship. In Kenya, the requirement for marriage registration came into
effect on August 1, 2017, through a legal notice placed in the newspapers by the then
Attorney General. It mandated that all marriages must be registered to be considered formal.

What were the transitional provisions under the Marriage Act regarding the
registration of marriages contracted under previous laws?

The transitional provisions under the Marriage Act outlined certain requirements for the
registration of marriages contracted under previous laws. Registrars of Marriages and
Assistant Registrars were required to send all registers of marriages and divorces to the
Registrar as soon as possible after the commencement of the Act. Parties to marriages under

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customary law, the Hindu Marriage and Divorce Act, or the Islamic Marriage and Divorce
Registration Act, which were not registered before the commencement of the Act, were given
three years to apply for registration.

Did the registration requirement apply to all individuals married under any marriage
system?

Yes, the registration requirement applied to all individuals married under any marriage
system. All individuals who were married, regardless of the type of marriage system they
followed, were required to register their marriages within the stipulated timeframe.

What were the rules for individuals who had previously registered their marriages
under the repealed Cap 150?

Individuals who had previously registered their marriages under the repealed Cap 150
(Marriage Act 150) were not required to re-register their marriages. If they had already
obtained marriage certificates under the old Act, they did not need to go through the
registration process again.

How did the Supreme Court address the issue of unregistered marriages concerning
matrimonial property and inheritance?

The Supreme Court decided that unregistered marriages would be decided on an individual
basis, meaning each case would be treated independently. There was no umbrella criterion for
all marriages not registered, whether for the living who want to share matrimonial property or
for the deceased who want to inherit. Decisions on such matters would be made based on the
specific circumstances of each case.

What is the historical evolution of matrimonial property laws in Kenya?

The historical evolution of matrimonial property laws in Kenya started with the Matrimonial
Causes Act, which was later repealed and replaced by the Matrimonial Property Act in its
current form. Before the Matrimonial Property Act, decisions on property division after
divorce were based on case law, which often disregarded non-monetary contributions of
spouses. The Matrimonial Property Act sought to address this issue and introduced provisions
recognizing non-monetary contributions and dividing property based on the contributions of
each spouse.

What is the difference between joint tenancy and tenancy in common, and why is it
significant in matrimonial property?

Joint tenancy and tenancy in common refer to different forms of co-ownership of property. In
joint tenancy, all parties are considered to own 100% of the property collectively, and when
one party dies, the surviving parties automatically acquire the deceased's share. In tenancy in
common, parties can have different shares of ownership. The significance in matrimonial
property lies in how property ownership is treated in the event of the death of one of the
spouses and during divorce proceedings.

What is the definition of matrimonial property?

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Matrimonial property, as per Section 6 of the Matrimonial Property Act, refers to the
matrimonial home or homes, household goods, and any other immovable or movable
property that is jointly owned and acquired during the subsistence of the marriage.

How does the Law of Succession Act address the distribution of furniture in the
matrimonial home when a spouse dies?

Section 36 of the Law of Succession Act addresses the distribution of furniture in the
matrimonial home when a spouse dies intestate. It provides that the surviving spouse shall be
entitled to the personal and household effects of the deceased absolutely. The surviving
spouse will also have a life interest in the remainder of the net intestate estate, subject to
certain conditions.

How does the Constitution of Kenya promote equality and freedom from discrimination
in relation to matrimonial property?

Article 27 of the Constitution of Kenya promotes equality and freedom from discrimination,
stating that every person is equal before the law and has the right to equal protection and
benefit of the law. This includes equal rights and opportunities in political, economic,
cultural, and social spheres. Section 3 of the Marriage Act further emphasizes this by stating
that parties to a marriage have equal rights and obligations at the time of the marriage, during
the marriage, and at the dissolution of the marriage.

What are the grounds for divorvce in Kenya?

Under the Kenyan law, specifically the Marriage Act of 2014, a marriage may be dissolved
on the following grounds:
1. Adultery: If it can be proven that a spouse had voluntary sexual intercourse with a
person other than their spouse, the aggrieved party may file for divorce.
2. Cruelty: If a spouse is physically or mentally abusive or violent, or behaves in a way
that makes cohabitation unbearable, a divorce may be granted.
3. Desertion: If one spouse abandons the other for a continuous period of at least three
years immediately preceding the date of the petition, it is grounds for divorce.
4. Exceptional depravity: This refers to misconduct by a spouse that is of such a nature
that it would be unfair to require the petitioner to live with them.
5. Irretrievable breakdown of the marriage: This is a general ground, where the court
needs to be satisfied that a marriage has broken down beyond repair.
6. Two years separation: The petitioner has been separated from the respondent for a
continuous period of at least two years immediately preceding the date of the petition.
7. Incurable mental illness or insanity: If a spouse suffers from an incurable mental
disorder or insanity, the other party may seek a divorce.
In all of these cases, the burden of proof lies with the party seeking the divorce, and they
must be able to demonstrate to the court that the marriage should be dissolved on these
grounds.

What is the law of maintenance of an ex in Kenya?

 In Kenya, the law concerning the maintenance of a former spouse following a divorce
is covered under the Matrimonial Property Act of 2013 and the Marriage Act of 2014.

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  Under these laws, both parties have an equal claim to the matrimonial property. In the
case of divorce, the matrimonial property is divided based on the contributions of
each spouse, which can be either monetary or non-monetary, such as domestic work
and child care.
 In terms of spousal support, Kenyan law does not generally award lifetime alimony or
maintenance to a divorced spouse. However, under specific circumstances, a court
may order one party to provide financial assistance to the other. This typically
happens if one party is unable to support themselves due to factors like old age,
illness, or lack of employable skills. The amount and duration of such support would
be determined by the court based on the specific circumstances of the case.
 In the case of children, both parents are legally obligated to support their children
financially until they become adults, irrespective of their marital status. The amount
of child support is determined by the court and usually depends on factors such as the
needs of the child, the income and financial resources of the parents, and the standard
of living the child is accustomed to.
 As with any legal matter, specific cases can vary greatly, so it's always advisable to
consult with a legal professional to understand the potential outcomes in any given
situation.

Exempted From The Law Of Succession

What is the property excluded from the LSA

 Property under Islamic law,

 Co-ownership of property/ Survivorship
 Nominations
 Section 32 of the Law of Succession Act
 Gifts in contemplation of death/ Donatio Mortis Causa

Explain all of the exempted property.

Property excluded from the Law of Succession Act (LSA) under Kenyan law includes the
following:

(I) Property under Islamic law: According to Section 2(3) of the LSA, the provisions of
the Act do not apply to testamentary or intestate succession to the estate of any person who,
at the time of their death, is a Muslim. Instead, the devolution of the estate of a Muslim
person shall be governed by Islamic law. However, Part VII (7) of the LSA, which relates to
the administration of estates, still applies to Muslims. This provision is in line with Section 2
of the LSA, which establishes the universal application of the Act to all cases of intestate or
testamentary succession, except where explicitly provided otherwise.

(II) Co-ownership of property/ Survivorship:

- Joint tenancy: Under section 2 of the Land act joint tenancy means a form of concurrent
ownership of land where two or more persons each possess the land simultaneously and
have undivided interest in the land under which upon the death of one owner it is
transferred to the surviving owner or owners. The law of succession does not apply to
joint tenancy as there is no succession or intestate or anything to say to parties be
applicable to the law of succession. Under section 49 of the Land Act (substantive law

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 for transfers) on the transmission on death of joint proprietor. If one of two or more joint
proprietors of any land, lease or charge dies, the Registrar shall, on proof of the death,
delete the name of the deceased from the register by registration of the death certificate.
Therefore, these parties will not be governed by the Law of succession.
- Tenancy in common: Under section 2 of the Land Act tenancy in common means a
form of concurrent ownership of land in which two or more persons possess the land
simultaneously where each person holds an individual, undivided interest in the property
and each party has the right to alienate or transfer their interest.
- Survivorship: It applies to joint tenancies where the property is jointly owned, and the co-
owner of the property is a beneficiary joint tenant. Whether that property is a real
property or personal property their interest will automatically pass to the surviving joint
tenant upon their death. Upon the demise of one of the tenants the interest automatically
merges without the surviving tenant. That's why it's important that all the property in the
home is jointly owned so at the time of one spouses’ death the other can rely on survival
ship. S 60 of the Land Act says a widow just have to take the death certificate of the
spouse who died, and you take it to the registrar.

What happens when two or more people die simultaneously?

S 43 of the LSA talks about the presumption of survivorship. Where two more persons have
died in circumstances rendering it uncertain which of them survived the other or others, the
deaths shall, for all purposes of this Act, be presumed to have occurred in order of seniority,
and accordingly the younger shall be deemed to have survived the elder.

(III) Nominations: Nominations involve appointing someone to receive certain assets on

one's behalf after death. This process applies to various entities such as insurance policies,
SACCOs, retirement benefit schemes, bank accounts, company shares, and more. Nominees
of immovable property are considered mere trustees entitled to receive the assets on behalf of
the legal heirs, as established in the case of Woodward v Woodward.

(IV) Section 32 of the Law of Succession Act:

Excluded property
The provisions of this Part shall not apply to-
(a) agricultural land and crops thereon; or
(b) livestock,
In the various Districts set out in the Schedule:
- West Pokot
- Wajir
- Turkana
- Garissa
- Marsabit
- Tana River
- Samburu
- Lamu
- Isiolo
- Kajiado
- Mandera
- Narok

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  Property identified under section 32(a) is perishable and not durable, making it
unsuitable for bequeathing.
 According to section 32(b), agricultural land that one holds title to can be bequeathed,
with a limitation of up to a minimum of five acres. This limit is set to prevent
excessive subdivision of land, which could affect productivity.
 For selling agricultural land, consent from the Land Control Board is necessary.
 In 12 identified counties, land is held on a communal basis, and individual
bequeathing isn't permitted. The land in these areas is typically used communally,
often for pasturing.
 Within these counties, certain areas have been demarcated from the communal lands
for development. Township initiatives allow people to purchase and build on these
parcels of land.
 The advantage of such demarcation is that the purchased parcels come with titles,
making them bequeathable. In these instances, inheritance follows testacy or intestacy
laws, rather than customary law

(V) Gifts in contemplation of death/ Donatio Mortis Causa:

 Gifts in contemplation of death are governed by Section 31 of LSA.

 For such a gift to be valid, specific conditions must be met, as established in the case of
Kayne v Moon.

A gift made in contemplation of death shall be valid, notwithstanding that there has been no
complete transfer of legal title, if-
 the person making the gift is at the time contemplating the possibility of death, whether or
not expecting death, as the result of a present illness or present or imminent danger; and
 a person gives movable property (which includes any debt secured upon movable or
immovable property) which he could otherwise dispose of by will; and
 there is delivery to the intended beneficiary of possession or the means of possession of
the property or of the documents or other evidence of title thereto; and
 a person makes a gift in such circumstances as to show that he intended it to revert to him
should he survive that illness or danger; and
 the person making that gift dies from any cause without having survived that illness or
danger; and
 the intended beneficiary survives the person who made the gift to him:

 Notably, the gift cannot be revoked by a subsequent will and cannot be given away as a
gift under a will to someone else.
 Additionally, if the donor dies from any cause other than suicide without having survived
the contemplated illness or danger, and the intended beneficiary survives the donor, the
gift becomes valid.

What is the difference between Gift inter vivos and donatio mortis causa
Gift inter vivo means that the transfer of the property becomes operative during the lifetime
of the donor whereas a donatio mortis causa is a gift made in contemplation of the death of
the donor and it passes to the donee after the death of the donor. Donatio mortis causa
resembles a gift inter vivos in that it takes effect when the delivery takes place but it only
becomes absolute if the donor dies.

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What was the primary purpose of the Law of Succession Act in Kenya?

The primary purpose of the Law of Succession Act was to unify and create uniformity among
all existing laws, including Islamic, customary, statutory, and Hindu laws.

What does Section 3 of the Law of Succession Act cover?

Section 3 of the Law of Succession Act covers the interpretations used in the Act.

How did the 2022 amendment of the Law of Succession Act alter the language of the
law?

The 2022 amendment of the Law of Succession Act replaced the term "wife" with "spouse"
to align with the language used in the Marriage Act.

What does Section 3(2) of the Law of Succession Act state about the concept of
'children'?

Section 3(2) of the Law of Succession Act states that references to "child" or "children"
include a child conceived but not yet born (as long as the child is subsequently born alive),
any child born to a woman out of wedlock, and in relation to a male, any child whom he has
expressly recognized or in fact accepted as his own or for whom he has voluntarily assumed
permanent responsibility.

What was the significance of the cases Re Ruenji's Estate and Re Ogola's Estate prior to
the introduction of Section 3(5) of the Law of Succession Act?

Prior to the introduction of Section 3(5) in the Law of Succession Act, the cases of Re
Ruenji's Estate (1977) and Re Ogola's Estate (1978) highlighted an issue where women
married under customary law to men who had previously married under statutory law were
denied claims to their husband's estate upon his death.

How did Section 3(5) of the Law of Succession Act affect women married under a
system of law that permits polygamy?

Section 3(5) of the Law of Succession Act, added as an amendment in 1981, stated that a
woman married under a system of law which permits polygamy is considered a wife for the
purposes of this Act, even if her husband has contracted a previous or subsequent
monogamous marriage to another woman. This meant that she and her children could inherit
from the husband's estate.

How did the case of Irene Njeri Macharia v. Margaret Wairimu Njomo influence the
interpretation of Section 3(5) of the Law of Succession Act?

The case of Irene Njeri Macharia v. Margaret Wairimu Njomo clarified that Section 3(5) of
the Law of Succession Act is meant to protect women who marry men under customary law,
who are already married to or subsequently marry another woman under statute. The woman
married under customary law is regarded as a wife for succession purposes, even if by virtue
of Section 37 of the Marriage Act, the man had no capacity to marry her.

What does Section 6 of the Marriage Act 2014 stipulate?

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Section 6 of the Marriage Act 2014 stipulates the different types of marriages and indicates
that one must stay within one marriage system therefore Re Ruenji's Estate (1977) and Re
Ogola's Estate (1978) is now good law again. This is because the position in 2023 under
succession law has changed. It is worth mentioning that “notwithstanding the provisions of
any other written law” mentioned in Section 3(5) of the LSA refers to section 37 of the
previously enacted Marriage Act, , which has since been repealed. The current law in effect
is the MA of 2014, which contradicts section 3(5) of the LSA According to the doctrine of
implied repeal, when two statutes have conflicting views, the later one is given priority.
Section 9 (a) of the MA states that a married person shall not, while in a monogamous
marriage, contract another marriage.

If a German national is living in Kenya and are renting a house but they have bought a
car. How will my property be decided when they die?

Section 4(B) LSA all movable property all movable property of a deceased person shall be
regulated by the law of the country of domicile of that person at the time of their death.

If a German national is living in Kenya and they have bought a house. How will my
property be decided when they die?

Section 4(A) LSA all immovable property in Kenya of a deceased person regulated by the
law of Kenya whatever the domicile is of that person.

Testate Succession

How is testate succession achieved?

Testate succession occurs where a person arranges to ensure that upon their death the
property passes to persons of their choice. These arrangements are made through a valid and
enforceable will, and the person who manages the property of a testate is called an executor.
This person is appointed by the testator in the will itself.

What is the legal definition of a will under the Law of Succession Act (LSA)?

According to Section 3 of the LSA, a will is the legal declaration by a person of their
intention or wishes regarding the disposition of their property after death, duly made and
executed in accordance with the provisions of the LSA. This includes a codicil, which is a
testamentary instrument that explains, alters, or adds to the will's dispositions and
appointments.

How is a codicil related to a will?

As per Section 2 of the LSA, a codicil is a testamentary instrument that explains, alters, or
adds to a will's dispositions and appointments. It is part of the will where the testator makes
corrections or additions without nullifying the original will.

What is the difference between a will & codicil?

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A will and a codicil are legal documents that deal with the distribution of an individual's
estate after their death, but they serve different purposes. A will is the primary document
where an individual, referred to as the testator, outlines how their assets should be distributed
and any other final wishes. It can cover various aspects, from the allocation of financial assets
to the care of minors and pets. On the other hand, a codicil is not a standalone document but
an extension or amendment to an already existing will. If a testator needs to make minor
changes or additions to their will—like including a new beneficiary or modifying the
executor—they can do this through a codicil without having to draft a new will entirely.
However, both a will and a codicil must adhere to the legal requirements of the respective
jurisdiction, including being signed and witnessed, to be legally enforceable.

What are the key characteristics of a will?

A will is a testamentary document that has no legal effect until the maker's death. The key
characteristics of a will include:
- its intention to take effect upon death;
- it only takes effect upon death;
- it only operates as a declaration of intention;
- it is ambulatory; and
- it is always revocable.

What are the types of wills ?

Form of Wills (Section 8 LSA): This section stipulates that a will may be made in either of
two forms - oral or written.
Oral Wills (Section 9 LSA): This section provides the conditions under which an oral will is
valid. Specifically, it mandates that:
 The will must be made in front of at least two competent witnesses (Section 9(1)(a)).
 The testator must pass away within three months from the date of making the oral will
(Section 9(1)(b)).
 However, an exception is made for members of the armed forces or merchant marine on
active service. Their oral wills remain valid if they die during the same period of active
service, even if this occurs more than three months after making the will.
 An oral will is not valid if it contradicts a written will made by the testator that hasn't
been revoked, regardless of whether the written will was made before or after the oral will
(Section 9(2)).

What are the benefits of having a will?

A will helps avoid intestacy and potential conflicts among beneficiaries. It also ensures that
property is distributed according to the wishes of the testator, providing a greater degree of
control over the property's disposition.

Can you explain what a conditional will is?

A conditional or contingent will only becomes effective if a specified event occurs. If the
event does not occur, the will does not take effect. The event is often the motivation for
making the will, rather than a precondition for its operation.

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What is the difference between a conditional will and a deathbed gift (DMC)?

In a conditional will, the expectation of death motivates the creation of the will, whereas in a
DMC, the donor must be facing an imminent and expected death for the gift to be valid. In a
conditional will, death is not a precondition for the will to be effective.

What is a joint will and how does it work?

A joint will is created when two or more people express their wishes upon death in one
document. Typically, joint wills are executed by spouses, who agree to pass all their assets to
each other. The main advantage of joint wills is the peace of mind it provides, as both parties
know exactly what will happen to their assets upon their deaths.

Who is eligible to make a will as per the Law of Succession Act?

According to Section 5 of the LSA, any person of sound mind who is not a minor can dispose
of their free property by will. The law also states that women, married or unmarried, have the
same capacity to make a will as men do.

How is an executor appointed in a will?

Section 6 of the LSA allows a person to appoint an executor or executors in their will. The
executor is responsible for carrying out the execution of the will of the deceased person. If no
executor is appointed, the law of succession provides its own rules for who can petition the
court for grants.

Capacity

What is the common law perspective on the capacity to create a will?

At common law, a will is invalid unless made by a person who, at the time of making the
will, had capacity to do so. Persons deemed incapable typically include infants and those of
unsound mind. However, if someone with a mental condition that otherwise incapacitates
them makes a will during a lucid interval, that will is valid.

How is capacity defined under Section 5(1) of the Law of Succession Act (LSA)?

According to Section 5(1) of the LSA, any person is capable of disposing of his property by
will, provided they are of sound mind and not a minor. Thus, minors and those of unsound
mind are not capable of making a valid will under this Act.

What criteria were established in the Banks v Goodfellow case to determine

testamentary capacity?

The case of Banks v Goodfellow established a three-part test to determine testamentary

capacity. The testator must understand the significance of making a will, be capable of
recalling the properties they need to dispose of, and be able to remember their intended
beneficiaries, including those they are morally bound to provide for.

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What is the impact of insane delusions on testamentary capacity, as shown in the Dew v
Clerk and Banks v Goodfellow cases?

According to the Dew v Clerk and Banks v Goodfellow cases, a person who suffers from
insane delusions holds beliefs that no rational person could hold, and these beliefs cannot be
eradicated by reasoning. However, such delusions only affect testamentary capacity if they
impact how the testator disposes of their property. The delusion itself doesn't necessarily
negate capacity unless it influences the property's disposition.

How does the burden of proof differ between common law and the Law of Succession
Act when opposing a will?

At common law, the burden of proof to demonstrate testamentary capacity lies with the
executor of the will. Under the Law of Succession Act, specifically sections 5(3) and 5(4), the
burden of proof shifts to the person alleging that the testator was not of sound mind or lacked
sufficient testamentary capacity at the time of creating the will.

How does the case of Vijay Chandrakant Shah vs. the Public Trustee CA No. 63 of 1984,
contribute to understanding the concept of 'lucid moments' in the context of
testamentary capacity?

In this case, the testator was suffering from a severe illness at the time of executing his will.
However, the Court of Appeal held that the will was valid as it was executed during a 'lucid
moment'. It highlighted that even if a person suffers from a mental or physical illness, their
will remains valid as long as it was made during a moment of clarity and lucidity.

Can you provide an example where a person's mental state affected the validity of a
will?

An example can be found in the Howard v Baker case, where a testator had executed his will
on his deathbed, leaving his entire estate to his second wife to the exclusion of all other
family members. He was suffering from a disease that had affected his brain. The court found
that he did not have a sufficient recollection of his other family members, leading to the
invalidation of the will.

How does the Re Nightingale case illustrate the impact of insane delusions on
testamentary capacity?

In the Re Nightingale case, a father excluded his son from his will because he irrationally and
wrongly believed that his son was trying to kill him. This was considered an insane delusion
that affected his capacity to distribute his property through his will, and as a result, the will
was deemed invalid.
What does Section 6 of the Law of Succession Act (LSA) pertain to, and how can a
person appoint an executor by will?

Section 6 of the LSA pertains to the appointment of an executor by will. A person can
appoint an executor or executors through their last will. The executor is the individual
responsible for carrying out the execution of the deceased person's will, and this appointment
must be made by the testator.

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Is it possible to appoint an executor through means other than a will? If so, what are
those alternative methods?

While Section 6 of the LSA allows the appointment of an executor through a will, the
phrasing of the section suggests that other means of appointing an executor might be
possible. However, it is uncommon to appoint an executor through other methods, as a
properly drafted will should typically include the appointment of an executor.

What happens if a testator fails to appoint an executor in their will?

If a testator does not appoint an executor in their will, the process of petitioning the court will
be necessary. The situation will be treated as if there was no will, as there is no appointed
executor to carry out the will's contents. The court will then determine who is eligible to
petition for grants under Section 66 of the LSA.

What is the significance of appointing executors when it comes to simplifying the

process of executing a will?

Appointing executors in a will streamlines the process of executing the will. It provides
clarity on who is responsible for carrying out the testator's wishes, ensuring a smoother and
more efficient administration of the estate.

What is testamentary capacity, and how can its absence impact the validity of a will?

Testamentary capacity refers to the mental capacity of a testator to understand the

consequences of making their will. If a person lacks testamentary capacity, as outlined in the
case of Banks v Goodfellow, their will may be deemed invalid. One of the requirements for
testamentary capacity is that the testator must know and approve the contents of the will at
the time of execution.

What are the circumstances in which knowledge and approval may be absent,
rendering a will invalid?

Knowledge and approval may be absent in cases of fraud, coercion, or mistake. If the testator
signs the will without understanding its contents due to coercion, undue influence, or fraud,
the will could be considered invalid under Section 7 of the Law of Succession Act.

What does Section 7 of the Law of Succession Act cover, and what are the consequences
of a will being caused by fraud, coercion, importunity, or mistake?

Section 7 of the Law of Succession Act deals with wills that have been caused by fraud,
coercion, importunity, or mistake. It states that any will or part of a will made under such
circumstances is invalid.

What exceptions exist to the rule of knowledge and approval regarding the validity of a
will?

The case of Estate of Wallace provides an exception to the rule of knowledge and approval.
A will can be valid, even if the testator lacked knowledge and approval at the time of
execution, if the following conditions are met:

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 The testator knew and approved the contents of the will at the time they gave instructions
to the advocate to draft the will.
 The will was prepared in accordance with the testator's instructions.
 At the time of execution, the testator understood that they were executing a will for which
they had previously given instructions.

Can you provide an example of a case where lack of knowledge and approval at the
time of execution did not render the will invalid?

In the case of Estate of Wallace, the testator, who was seriously ill, had written a document
entitled "last wish." Although he knew and approved the contents when he prepared the
document himself, he didn't recognize the will when it was brought to him later for execution.
The court upheld the validity of the will because it was made in accordance with his earlier
instructions, and he understood that he was signing a document prepared based on those
instructions at the time of execution.

How can a will be found void?

(i) Mistake
(ii) Coercion or undue influence
(iii) Fraud
(iv) Forgery

What are some circumstances that may invalidate a will based on suspicion?

Some suspicious circumstances that may invalidate a will include cases where the will is
written by a person who benefits from it (Tyrrell v Clinton), instances of coercion or undue
influence exerted on a testator, especially if the testator is sick, frail, or elderly (Beth
Wambui v Gathoni), and situations where a testator with little experience in financial
matters leaves a sizable estate to a person who heavily influenced them, such as a family
solicitor (Wintle v Nye). Additionally, a will may be considered suspicious if it is drafted in
the home of a beneficiary and excludes close family members based on questionable grounds
(Barry v Bartley), or when a testator's mental capacity and ability to make decisions are
doubtful due to certain circumstances (Julius Wainaina Mwathi v Beth Mbene Mwathi &
another).

What is the legal effect of a mistake in a will?

A mistake relating to the entire will renders it invalid, while a partial mistake can be
corrected, or that specific portion of the will can be revoked. In the case of Goods of Hunt
(1875), the will was not granted probate as the testator executed the wrong will by mistake,
intending to execute her own will but inadvertently executing her sister's will. However, in
Re Morris (1970), a mistake in a codicil was allowed to be corrected when the testatrix had
intended to make alterations to her will, but the solicitor made a drafting error. The court
allowed the correction as the mistake was a small and specific portion of the will.

How does the law distinguish between undue influence and legitimate persuasion in the
context of a will?

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Undue influence occurs when a testator is coerced into making a will or specific provisions
against their true intentions, while persuasion involves appealing to the testator's affections,
gratitude, or other legitimate factors without overpowering their volition. In Hall v Hall
(1869), the court stated that persuasion, as long as it does not overpower the testator's
judgment, is not unlawful. However, any pressure that overcomes the testator's free will
constitutes undue influence. Wingrove v Wingrove (1885) further clarified that certain
influences, such as those arising from affection or family ties, are legitimate and can be
pressed on a testator without amounting to undue influence.

How does fraud affect the validity of a will?

Fraud can invalidate a will if a testator makes decisions based on false statements made by
an intended beneficiary regarding their character or conduct. For instance, in the Estate of
Posner (1953), a gift made to a beneficiary who fraudulently misrepresented herself as the
testator's wife was invalidated. Similarly, in the case of Maingi v Maingi (1984), the testator
fraudulently appointed a woman as executrix and trustee of his will, falsely claiming that he
was divorced from his first wife and thereby disinheriting her completely. The court held that
the appointment was fraudulent and illegal, rendering the executorship impossible.

How does forgery impact the validity of a will, and what standard of proof is required
to allege forgery?

If a will is forged, meaning the testator did not have knowledge of or approve its contents,
the will becomes void. In the case of Ndolo v Ndolo (1995), a higher standard of proof is
required to allege forgery compared to ordinary civil cases. While it is not as high as "beyond
a reasonable doubt," it falls somewhere in the middle between this standard and the standard
of proof required in civil cases.

Forms of a will

What are the different forms that wills can take in Kenyan law, and what are the
limitations of an oral will?

In Kenyan law, wills can be made either orally or in writing. An oral will is valid if it is made
before two or more competent witnesses, and the testator dies within three months from the
date of making the will. However, for an oral will made by a member of the armed forces or
merchant marine during active service, it remains valid even if the testator dies more than
three months after making the will. The limitation of an oral will is that the testator must die
within three months of making the will. After this period, it becomes difficult to prove the
contents of the oral will, as memory is not reliable over extended periods.

Rufus Ngethe Munyua Public Trustee v Wambui - The court considered a situation where
a deceased person gave instructions regarding the disposal of their assets, which were
reduced into writing by a witness. The court held that such instructions amounted to an oral
will, as it failed to meet the formal requirements of a written will.

What are the formal requirements of a written will according to Section 11 of the Law
of Succession Act?
According to Section 11 of the Law of Succession Act, the formal requirements of a written
will are as follows:

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 The testator must sign or affix their mark to the will, or it may be signed by another
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 them, must
be placed in such a way that it appears to give effect to the writing as a will.
 The will must be attested by two or more competent witnesses, each of whom must have
seen the testator sign or affix their mark to the will, or have seen another person sign the
will in the presence and by the direction of the testator. Each witness must sign the will in
the presence of the testator, but it is not necessary for all witnesses to be present at the
same time.

What is attestation of wills?

Attestation of wills refers to the act of witnessing a testator (the person making the will) sign
their will and then signing it yourself as confirmation that you've witnessed the testator's
signature. It is a formal declaration that the will has been duly executed by the testator and
that it accurately reflects their wishes.

How attestation done ?

(Section 11(c) LSA) A will must be attested by at least two competent witnesses. Each
witness must either:
o Have seen the testator sign or affix their mark to the will,
o Have seen another person sign the will at the testator's direction and testator's
presence,
o Or have received a personal acknowledgement from the testator of their
signature or mark, or of the signature of the other person who signed.

Each witness must then sign the will in the testator's presence. It's not necessary for both
witnesses to be present at the same time when signing, and there is no particular form of
attestation required.
By ensuring proper attestation, you help protect the validity of the will and safeguard the
testator's intentions regarding the distribution of their estate upon their demis

How does the court interpret the term "signature" in relation to wills?
The term "signature" in relation to wills is widely interpreted by the courts to cover any mark
of the testator intended as a signature. It does not necessarily have to be a traditional name
signature; it can be a thumbprint, initials, an assumed mark, or even a rubber stamp mark in
the testator's name. The courts have held that part of a signature may sometimes be sufficient
to validate a will.
Case Law: Re Cookes Estate - The court held that words placed at the end of the will, such as
"your loving mother," were considered a valid signature.

What are the requirements for the incorporation of papers by reference in a will
according to Section 12 of the Law of Succession Act?

Section 12 of the Law of Succession Act deals with the incorporation of papers by reference
in a will. To incorporate a document by reference into a will or codicil, the following
conditions must be satisfied:
 The testator must refer to the other document clearly in the will, indicating that it
expresses a part of their intentions.

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 The document referred to must exist at the date of executing the will and must be clearly
identified in the will as the document to which it refers.
Incorporation by reference allows documents satisfying these conditions to be considered part
of the will, even if they are not executed separately.

Can a beneficiary or a spouse of a beneficiary be a witness to a will under the Kenyan

Law Succession Act (LSA)?

Yes, a beneficiary or a spouse of a beneficiary can be a witness to a will under the LSA.
Section 13(1) of the LSA states that a will shall not be considered invalid or insufficiently
attested merely because it was attested by a beneficiary or a beneficiary's spouse. However, in
such cases, the signatures of the beneficiaries must be further attested by at least two
additional competent and independent witnesses.

What happens if a beneficiary acts as a witness to a will under Kenyan law?

According to Section 13(2) of the LSA, if a beneficiary acts as a witness to a will, they may
lose their gift under the will unless their signatures are attested by two other independent and
competent witnesses. In other words, the beneficiary's gift may be invalidated if they act as a
witness without proper additional attestation.

In the case of Sarah bequeathing property to Patricia and Anisa, can Patricia and Anisa
also act as attesting witnesses?

Yes, Patricia and Anisa can act as attesting witnesses to the will. However, to ensure the
validity of the attestation, four new witnesses are required, with two witnesses attesting to
Patricia's signature and two witnesses attesting to Anisa's signature. This additional
attestation by independent witnesses ensures the validity of the will.

In the case of "In The Matter Of The Estate Of George Mbugua Ngare (1995)," why
was the will considered valid despite a beneficiary acting as a witness?

In this case, the will was considered valid because, in addition to the beneficiary's signature
as an attesting witness, two other independent and competent witnesses also attested to the
will. This additional attestation fulfilled the requirement of having independent witnesses,
even though a beneficiary acted as one of the witnesses.

Is it necessary for both witnesses to be present at the same time during the execution of
the will?

No, both witnesses do not have to be present at the same time during the execution of the
will. Section 11(c) of the LSA allows for separate attestations. Each witness needs only to
satisfy themselves that they saw the testator signing a will and that it is, indeed, a will.

What is the effect of incorporating a document by reference in a will under the LSA?

When a testator incorporates a document by reference in a will, the referenced document is

considered as forming part of the will or codicil in which it is referred to. For incorporation to
be effective, the document must be in existence at the time of executing the will, be referred
to in the will as being in existence, and be clearly identified.

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In the case of "The Goods Of Lady Truro (1866)," how did the court interpret the
reference to the inventory in the will?

In "The Goods Of Lady Truro (1866)," the court interpreted the reference to the inventory
as a gift "contained in an inventory signed by me and deposited herewith." The court ruled
that although the inventory was dated later than the will, a later codicil republished the will,
and the words in the reference were construed as past, making the reference valid.

Can an executor of a will also be a witness to prove its execution or validity under the
LSA?

Yes, an executor of a will can also be a witness to prove the execution of the will or its
validity under Section 14 of the LSA. Being an executor of the will does not disqualify a
person from being a witness in such proceedings.

How does the LSA treat wills executed before the commencement of the Act (1981)?

Section 15 of the LSA states that any written will executed before the commencement of the
Act (1981) shall be treated as properly executed if it was executed according to the
requirements of the law in force at the date of execution. This applies whether the testator
dies before or after the commencement of the Act.

Under what circumstances will a will be treated as properly executed under Section 16
of the LSA?

Section 16 of the LSA provides that every will, whether of movable or immovable property
and whether executed before or after the commencement of the Act, shall be treated as
properly executed if its execution conformed, either at the time of execution or at the time of
the testator's death, to the law in force: a. In the state where it was executed; or b. In the state
where the property is situated; or c. In the state where, at the time of its execution or the
testator's death, he was domiciled; or d. In a state of which the testator was a national either at
the time of its execution or on his death.

Privileged wills

What is the definition of a privileged will and what are its essential elements?

A privileged will is a will that is considered valid even without complying with the strict
legal formalities of a will. It does not necessarily require the usual formalities, such as being
signed by two witnesses. However, it still requires the testator to have the capacity to make a
will, and both formality and capacity are essential for a will's validity. Privileged wills are
permitted under certain circumstances, such as during active military service when finding
proper witnesses might be challenging.

What is the significance of making an oral will during active military service?

LSA Section 9 allows for an oral will made by a member of the armed forces or merchant
marine during a period of active service to be valid if the testator dies during the same period
of active service, even if the death occurs more than three months after making the will. This

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privilege is granted due to the difficult circumstances faced by individuals in active service,
where arranging formal witnesses for a will might not be feasible.

Can you provide examples of cases where privileged oral wills were considered valid?

In Re Stable (1919), a deceased Lieutenant expressed his intention of leaving his belongings
to his fiancée in the presence of a witness, and the court considered it a valid privileged oral
will. Similarly, in Re Jones (1981), a soldier made a statement to his companions during a
dangerous patrol, expressing his desire to leave his possessions to his fiancée, and the court
upheld it as a valid privileged will, despite not being in active service during a military
operation.

How is "actual military service" defined in relation to privileged wills?

Section 3 of the LSA defines "active service" as service with the armed forces or merchant
marine on a field of military operations or at sea, or proceeding to or from such field or sea,
or under orders to proceed to such field or sea, or being in some place for the purpose of
proceeding to such field or sea. The definition includes various situations related to military
operations and travel to or from such operations.

In the case of Re Wingham (1948), how was "actual military service" interpreted?

In Re Wingham, a pilot died during a training exercise while preparing for military service
during WW2. The court ruled that the training exercise, although not part of active military
operations, constituted "actual military service" because it was associated with the process of
preparing for military duty. Therefore, the oral will made during that time was deemed valid
as a privileged will.

Can individuals of all ranks in the armed forces avail the privilege of making privileged
wills?

Yes, the privilege of making privileged wills is not restricted to individuals of the highest
rank. In cases like Re Nibs, Eda Stanley, and Sarah Hale, both a nurse and a typist serving
with the marines on a ship were allowed to make privileged wills because they were sailing to
a place of war, and they had received orders to do so.

Under what circumstances can members of the armed forces create a privileged written
will?

Members of the armed forces can create a privileged written will if they have testamentary
capacity, and it is only required to be attested by one witness, as per Section 219 of the
Armed Forces Act.

Can you provide an example of a case where a privileged written will was considered
valid?

In the case of Gattward vs. Knee (1920), a battalion soldier wrote an undated letter
expressing his intention to leave everything to a specific person if he were to die in action
during the war. The court held that this letter constituted a privileged will and was admissible
to probate, validating the soldier's wishes.

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Revocation, Alteration And Revival Of Wills

What is the rule behind revocation of a will

S17 of the LSA a testator can revoke their will as long as they have capacity to do so.

S18 of the LSA Revocation of will

(1) Save as provided by section 19, no will or codicil, or any part thereof, shall be revoked
otherwise than by another will or codicil declaring an intention to revoke it, or by the
burning, tearing or otherwise destroying of the will with the intention of revoking it by the
testator, or by some other person at his direction.
(2) A written will shall not be revoked by an oral will.

What is the main principle behind revocation of a will, and what are the two ways a will
can be revoked?

The main principle behind revocation of a will is that a will is a mere declaration of intention
and can be rendered ineffective. A will can be revoked either voluntarily or involuntarily.
Voluntary revocation can be done through express revocation (by making another will or
codicil declaring the intention to revoke it), or implied revocation (by making a later will or
codicil inconsistent with the earlier one).

Involuntary revocation occurs when a testator gets married, which automatically revokes the
will, unless the will explicitly states it was made in contemplation of that marriage.

What are the three methods of voluntary revocation, and what are the requirements for
each method?

The three methods of voluntary revocation are express revocation, implied revocation, and
revocation by destruction. Each method has specific requirements:
(i) Express revocation: A testator can revoke a will wholly or partially by making another
will or codicil declaring the intention to revoke it. The testator must have the mental capacity
and intention to revoke, and a mere statement that the will is the last will and testament is not
sufficient for express revocation.
(ii) Implied revocation: A will or codicil is impliedly revoked by a later will or codicil to the
extent that the latter is inconsistent with the earlier one. This can happen when the testator
writes a new will that contradicts the terms of the previous will or when a codicil varies the
terms previously contained in the will. (iii) Revocation by destruction: A will can be
revoked by destroying it through burning, tearing, or any other means, either by the testator
or someone else at the testator's direction. For this method, the testator must have the capacity
to revoke and the intention to do so. Both actual destruction and the intention to revoke must
be present for this method to be effective.

Can a will be revoked orally, and what does the Doctrine of Conditional Revocation
entail?

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No, a written will cannot be revoked orally according to Section 18(2) of the LSA. The
Doctrine of Conditional Revocation deals with situations where the intention to revoke a will
is subject to a condition. It distinguishes between absolute intention and conditional intention
to revoke. If a testator mistakenly believes that the revocation of the old will is dependent on
the effectiveness of a new will, and the new will is not executed, the revocation may be
deemed conditional, and the old will may still remain valid. The determination of whether
revocation is absolute or conditional depends on the facts surrounding the intention to revoke
and may involve a matter of construction in the case of express revocation or a matter of fact
in the case of actual destruction.

How does marriage affect the validity of a will, and are there any exceptions to this
rule?

Section 19 of the LSA states that a will shall be revoked by the marriage of the maker. When
a testator gets married, the existing will is automatically revoked. However, there is an
exception to this rule. If a will is expressly stated to be made in contemplation of marriage
with a specified person, the marriage will not revoke the will. In such cases, the will remains
valid even after the testator's marriage.

Can revocation of a will be inferred from the testator's divorce?

While the information provided doesn't mention a specific section related to revocation due to
divorce, we can infer that revocation of a will can be implied if the testator has divorced their
spouse. Divorce may affect the validity of the will, particularly if the will includes provisions
related to the former spouse. However, the specific implications and legal consequences of
divorce on the will would depend on the relevant laws and regulations of the jurisdiction
where the will was made.

What is the effect of alterations made in a will after its execution?

According to Section 20 of the LSA, alterations made in a will after its execution will have
no effect unless they are signed and attested as required for the execution of a written will
under Section 11. If the alterations are signed and attested properly, the will as altered will be
deemed to be duly executed.

How can a will be altered using a codicil

A codicil is a document used to alter a will. It is commonly used to revoke only specific parts
of a will. To make a valid alteration using a codicil, the codicil must refer in some way to the
specific alteration being made in the will.

Is an alteration made before the execution of a will valid?

An alteration made before the execution of a will can be valid, provided it is final and not
deliberative. If the alteration is in pencil, it is presumed to be merely deliberative, and without
evidence to the contrary, it would not be valid. However, there is a presumption that
alterations made before the execution of the will have been made after execution unless the
alteration fills in a blank space in the will.

How can the presumption of an alteration being made before or after the execution of a
will be rebutted?

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The presumption of an alteration being made before or after the execution of a will can be
rebutted by either extrinsic evidence or evidence from the will itself. If it can be shown that
the alteration fills in a blank space in the will, it is presumed to have been made before the
execution of the will.

Can a codicil alone validate an alteration made in a will?

No, a codicil alone cannot validate an alteration made in a will. For an alteration to be
validated by a codicil, the codicil must refer to the specific alteration being made in the will.

How can alterations made after the execution of a will be considered valid?
Alterations made after the execution of a will will be valid if they have been duly executed in
accordance with the formalities required for the execution of a will. This means that the
testator and the witnesses must place their initials in the margin next to the alteration, or the
signature of the witnesses and the testator should be put at the end of a memorandum
contained in the will, which refers to the alteration.

What is the effect of an unattested alteration made after the execution of a will?
The effect of an unattested alteration made after the execution of a will depends on whether
the original wording is apparent or not apparent. The original wording is apparent if it can be
deciphered by an expert through natural means, without physically interfering with the will.

How is a will treated if an unattested alteration is apparent, and the original wording
can be deciphered?

If an unattested alteration is apparent and the original wording can be deciphered, the will is
admitted to probate with the original wording, ignoring the alteration.

What happens if an unattested alteration is made, but the original words are not
apparent?

If an unattested alteration is made, and the original words are not apparent, the general rule is
that probate of the will is granted with a blank space, indicating the absence of the specific
alteration.

What does Section 21 of the Law of Succession Act state regarding the revival of a will?

Section 21 of the Law of Succession Act outlines the rules for the revival of a will.
Subsection (1) states that no will, which has been completely revoked in any manner, can be
revived except through its re-execution. Subsection (2) specifies that if only a part of the will
has been revoked, that part can only be revived through re-execution or by a subsequent will
or codicil that shows an intention to revive it.

How can a testator revive a will, codicil, or any revoked document under the Law of
Succession Act?

According to the Law of Succession Act, a testator can revive a will, codicil, or any revoked
document, as long as it has not been destroyed. Revival can be achieved through the re-
execution of the will with proper formalities or by a duly executed codicil. In both cases,
there must be a clear intention to revive the previously revoked document.

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What is the difference between reviving a partially revoked will and a completely
revoked will?

When a part of a will has been revoked, that specific part can be revived through re-execution
or by using a subsequent will or codicil with an intention to revive it, as stated in Section
21(2) of the Law of Succession Act. However, if the entire will has been revoked, it can only
be revived by re-executing the entire will, according to Section 21(1).

In the case of involuntary revocation under Kenyan law, what is the only method of
revocation?

The only method of involuntary revocation under Kenyan law is the revocation by marriage.
This form of revocation occurs automatically by operation of the law and does not require the
testator to have the mental capacity or intention to revoke. When the testator gets married,
any will or codicil made before the marriage is automatically revoked.

How does the revival of a will or codicil affect the document's effectiveness, as described
in the case of Re Hardyman?

In the case of Re Hardyman, it was established that when a will or codicil is revived, it speaks
from the date on which it was revived. This means that any references to persons in the
revived document are considered to refer to persons at the date of revival, not at the original
date of the will or codicil.

What did the court determine in the case of Re Reeves (1928) regarding the revival of a
will's effect on references to property?

In the case of Re Reeves (1928), the court found that the revival of a will has an impact on
references to property. When a will is revived, it speaks from the date of revival, affecting
any references to property in the will or codicil, which are considered to relate to the state of
affairs at the date of revival.

Construction Of Wills

What is the main objective of the construction of a will, and how does the court
approach it?

The main objective of the construction of a will is to ascertain the testator's intentions as
expressed in the will. The court's role is to interpret the words, phrases, and expressions used
in the will and determine their meaning and effect. In cases where there are contested clauses
or ambiguity in the will's contents, the court attempts to give effect to what the testator
wanted. This process is known as construction or interpretation of the will.

Under which section of the Law of Succession Act are wills construed, and how many
modes of interpreting wills are specified in the First Schedule?

Wills are construed in accordance with Section 22 of the Law of Succession Act (LSA). The
First Schedule to the LSA contains 78 modes of interpreting wills.

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What is the benevolent approach to the construction of wills, and how does it differ
from declaring a will void for uncertainty?

The benevolent approach to the construction of wills involves the judge referring to the 78
modes of interpretation listed in the First Schedule of the LSA. The judge utilizes the relevant
modes to resolve any ambiguity or uncertainty in the will's clauses. This approach aims to
give effect to what the testator intended, even if the language used in the will is not entirely
clear.
In contrast, if a will uses words or phrases that can be interpreted in two or more ways,
without indicating the testator's intended sense, the court faces two options. The court can
either declare the will void for uncertainty or decide on one of the available interpretations to
be given to the disputed clause.

What are the rules of construction of wills, and how are they applied by the court?

The rules of construction of wills are principles and guidelines used by the court to interpret
the testator's intentions as expressed in the will. Some of these rules include:
 The Court construes Wills, it does not Remake Them: The court's duty is to
interpret the words used in the will, even if the result appears unfair or unjust. The
court does not seek to make new provisions for the testator's lawful dependents but
construes the will as it stands.
 Words are Construed in their Ordinary Natural Sense: The court attributes the
primary and ordinary meaning to words in the will, regardless of whether it may lead
to a capricious meaning.
 The Will must be Read as a Whole: The meaning of clauses is determined from the
entire will, and the court seeks to give effect to the testator's overall intentions
expressed in the document.
 The Will must Speak for Itself: The court ascertains the testator's intention solely
from the words used in the will itself, and generally does not admit extrinsic evidence
to explain or alter its meaning.

Explain the "armchair rule" in the context of construing wills, and when is it applied?

The "armchair rule" allows the court to put itself in the testator's position at the time of
making the will. The objective is to understand the words of the will as the testator would
have understood them at that time. The rule is primarily used to identify the beneficiary or
subject matter of a gift in the will. It is applied by the court by construing the will without
considering surrounding circumstances and then applying the apparent effect of the will to
those circumstances to ensure alignment with the testator's intentions.
However, the armchair rule can only be used to confirm the apparent effect of a will or to
shed light on vague terms. It cannot be used to alter the meaning of clear and unambiguous
words in the will. In situations where words in the will are ambiguous, the court can consider
direct or circumstantial evidence to explain the meaning of those words. This is known as
"ambiguous words" or "latent ambiguity."

What are the key bullet points of the First Schedule of the LSA on Construction of
Wills?

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 Wording of will: The intention of the testator must be ascertainable from the wording of
the will; technical words are not necessary.
 Meaning of clause to be collected from entire will: Interpretation of any clause should
consider the entire will, and if irreconcilable clauses exist, the last one prevails.
 Will speaks from death as to property comprised in it: The will is deemed to speak and
take effect at the time of the testator's death, except for specific legacies.
 Negative words insufficient to exclude person entitled on intestacy: A mere negative
statement in the will is not enough to exclude an intestate heir; there must be an actual
gift to someone else.
 Express gift cannot be controlled by reason assigned, etc.: An express and positive gift
cannot be overridden by subsequent ambiguous words or recitals, except in cases of
ambiguity or doubt.
 Implication admissible only in absence of express disposition: Implication is allowed only
when there is no explicit disposition and cannot control an express one.
 Words may be supplied, rejected, etc.: Words in the will can be transposed, supplied, or
corrected for clerical errors based on the context and general scheme of the will.
 Technical words: Technical words are presumed to be used in their technical sense, unless
the context indicates otherwise.
 Words in general: Words are construed in their ordinary and grammatical sense, unless
the will indicates a different intention.
 Words occurring more than once: Repeated words are presumed to have the same
meaning unless context or application to different subjects indicates otherwise.
 Additional words: Additional words or phrases add to the meaning of the will unless the
context suggests otherwise.
 Words construed so as to make them operative: When a clause has two possible
meanings, the one with some effect is preferred.
 Intention to be given effect to: The testator's intention must be given effect as far as
possible, even if not fully achievable.
 Rules of construction not to be strained to validate gift: Rules should not be stretched to
validate a gift, but if the will allows two constructions, the one rendering the gift valid is
preferred.
 Inconvenience or absurdity of gift: Inconvenience or absurdity in a gift does not alter the
construction if the terms are clear; ambiguous terms are construed rationally.
 Construction not to be varied by subsequent events: Events after execution do not change
the will's construction, but circumstances foreseeable at execution may be considered for
interpretation.
 Presumption against intestacy: The testator is presumed to intend against intestacy, and a
construction avoiding intestacy is preferred.
 Presumption as regards gift over: A gift over is presumed to take effect unless clear
intention indicates otherwise.
 Independent gifts: Independent gifts are construed separately, unless the will indicates an
intention to connect them.
 References to child, etc., to include illegitimate child, etc.: Terms like "child," "son,"
"daughter," etc., include illegitimate children, unless the will suggests otherwise.
 References to application of Islamic law to mean law of sect or school of testator: Islamic
law mentioned in the will refers to the sect or school of Islamic law to which the testator
belonged, unless stated otherwise.
 Particular rules of construction: Specific rules of construction apply only if not
contradicted or implied by the will, and they are subject to the will's terms.

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Doctrines in LSA

What are the two doctrines or principles provided under Section 23 of the Law of
Succession Act (LSA)?

The two doctrines or principles provided under Section 23 of the Law of Succession Act are:
 The doctrine of lapse.
 The doctrine of ademption.

Explain the doctrine of lapse as provided under the Law of Succession Act.

The doctrine of lapse, as stated in paragraph 1(1) of the 2nd Schedule to the Law of
Succession Act, applies when a beneficiary under a will predeceases the testator. In such a
case, the gift intended for the deceased beneficiary will lapse. If the gift is not a residuary
gift, the property will fall into residue. However, if the gift is a residuary gift, the property
will pass according to the rules of intestacy unless there is a substitutional gift of the residue.
This doctrine can be avoided if it can be proven that the beneficiary survived the testator,
even for a short period. The doctrine of commorientes may be applied when the
circumstances of death create uncertainty about whether the beneficiary survived the testator.

Can the doctrine of lapse be excluded by stating in the will that a gift is not subject to it?
Provide relevant case law.

No, the doctrine of lapse cannot be excluded by stating in the will that a gift is not subject to
it. This principle is established under paragraph 1(2) of the 2nd Schedule to the Law of
Succession Act. A relevant case is "Re Ladd," which held that an express gift to the estate of
a deceased beneficiary is possible, implying that the doctrine of lapse still applies even if the
testator attempts to exclude it in the will.

How does the doctrine of lapse apply to gifts made to beneficiaries as joint tenants and
tenants in common? Cite relevant case law.

If a gift is made to beneficiaries as joint tenants, the gift will not lapse unless all the joint
tenants predecease the testator. This is because the surviving joint tenant(s) take the share of a
deceased joint tenant by survivorship. Conversely, if a gift is made to beneficiaries as tenants
in common, the share of a beneficiary who predeceases will lapse. This is because tenants in
common have distinct shares in the property, and the rule of survivorship does not apply. A
relevant case is "Morley vs. Bird," which confirmed the non-lapse of joint tenancy gifts by
survivorship.
What are the exceptions to the doctrine of lapse provided in the 2nd Schedule to the
Law of Succession Act? Provide examples for each exception.

The exceptions to the doctrine of lapse as provided in the 2nd Schedule to the Law of
Succession Act are as follows:
(a) Gifts made in discharge of a moral obligation recognized by the testator (paragraph 2(1)
(a)). Example: If the testator morally bequeathed a disabled friend to improve their quality of
life, and the friend dies, the gift will not lapse.
(b) Gifts in favor of any child or other issue of the testator, for an estate or interest not
determinable at or before the death of the child or other issue (paragraph 2(1)(b)). Example:
If a testamentary gift is made to a child, and the child dies but leaves behind surviving issue,

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the gift will pass to the surviving issue as if the deceased child died immediately after the
testator.
(c) Gifts in favor of a described class of persons, where any member of that class survives
and takes a vested interest (paragraph 2(1)(c)). Example: If the testator bequeaths property to
a class of friends, and one of them dies, the surviving members of the class will inherit the
property.
(d) Gifts to several named persons who do not constitute a class, but an intention in the will
indicates they should take as joint tenants or only the survivors should take (paragraph 2(1)
(d)). Example: If the testator makes a gift to named individuals as joint tenants or with a
provision that only the survivors will take, the gift will not lapse if any of them survive the
testator and are capable of taking the whole.

What is the significance of Section 43 of the Law of Succession Act regarding the
principle of survivorship?

Section 43 of the Law of Succession Act establishes the principle of survivorship. It provides
that if two or more persons have died in circumstances rendering it uncertain which of them
survived the other, the deaths shall be presumed to have occurred in order of seniority, with
the younger person deemed to have survived the elder. However, in the case of spouses who
die in such circumstances, they are presumed to have died simultaneously. The burden of
proving that a legatee or an under a will has survived the testator falls upon the person
alleging survivorship.

Give an example of a situation where a bequest should not lapse based on the exceptions
provided in the 2nd Schedule of the Law of Succession Act.

If a testator makes a gift in favor of any child or other issue, and the child or other issue
predeceases the testator but leaves behind surviving issue, the gift will not lapse. For
example, if a testator leaves a property to their child, and the child dies before the testator, but
the child's children (the testator's grandchildren) are living at the testator's death, the
grandchildren will be entitled to the gift, and it will not lapse.

What is the doctrine of ademption, and what provision of the law governs it?
The doctrine of ademption is a legal principle that operates in the context of wills and
bequests. It is provided for in section 23 of the Law of Succession Act. The operation of the
doctrine is further detailed in the 2nd Schedule to the Act.

Explain the circumstances under which a gift is considered "adeemed" under the
doctrine of ademption.

Under the doctrine of ademption, a gift is considered "adeemed" when property that has been
specifically bequeathed in a will no longer belongs to the testator at the time of their death or
has been converted into property of a different kind. In such cases, the gift cannot take effect,
and it fails due to the subject matter being withdrawn from the operation of the will.

According to paragraph 8(1) of the 2nd Schedule to the Law of Succession Act, under
what circumstances will a specific gift fail for ademption?

A specific gift will fail for ademption under paragraph 8(1) if the subject matter of the gift
does not form part of the testator's estate at the time of their death. Ademption is likely to

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occur when the property has been sold, given away, or destroyed during the testator's
lifetime.

Can you provide an example where ademption may occur due to a change in the nature
of the subject matter of the gift?

Yes, an example of ademption occurring due to a change in the nature of the subject matter is
when a testator holds shares in a company, and the company is taken over after the execution
of the will. In such cases, the court must determine whether there has been a change in form
or a change in substance. If there is a change in substance, ademption will occur.

How does the doctrine of ademption apply when there is a contract to sell the subject
matter of a specific gift?

A contract to sell the subject matter of a specific gift will cause the gift to fail for ademption,
even if the contract is not completed until after the testator's death. However, if the testator
made a contract to sell the subject matter of the gift before executing the will, the beneficiary
will be entitled to the proceeds of the sale. Additionally, if a testator grants a third party an
option to purchase property that is the subject matter of a specific gift during their lifetime,
the gift will adeem whether or not the option is exercised.

Are there any exceptions to the doctrine of ademption? Explain one of these exceptions.

Yes, there are exceptions to the doctrine of ademption. One exception is when property
specifically bequeathed undergoes a change between the date of the will and the testator's
death due to a wrongful conversion caused by someone else, such as theft. In such cases, the
gift will not be adeemed. However, if the change in property is caused by the authority of any
written law, whether or not approved by the testator, ademption will occur, unless the written
law effecting the conversion provides otherwise. An example of this would be if the land
subject to the gift has been acquired through compulsory acquisition by the government.

What is the purpose of the doctrine of election, and how is it provided for under the
law?

The doctrine of election serves to prevent individuals from rejecting the validity of an
instrument while simultaneously trying to claim benefits from it. It is provided for under
Section 24 of the LSA (Law of Succession Act) which deals with beneficiaries under
testamentary gifts or dispositions. According to Section 24, if a person, through a will,
purports to dispose of property that does not belong to them and bequeaths a gift to the
person to whom that property actually belongs, the legatee (recipient) accepting the gift may
elect to either give effect to the testator's attempted disposition or enforce their proprietary
rights against that disposition. The procedure and circumstances of such election are
governed by the provisions in the Third Schedule.

What are the key principles of election as outlined in the Third Schedule, and how can
an election be implied?
The key principles of election outlined in the Third Schedule are as follows:
 A person who receives a gift in a will where the property does not belong to the
testator may elect to either accept the gift and give effect to the testator's disposition

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 or enforce their proprietary rights against that disposition (Principle of election,
paragraph 1).
 If a legatee elects to enforce their proprietary rights, they must compensate the person
whom they have thereby disappointed, not exceeding the value of the gift bequeathed
to the person electing to enforce their proprietary rights (Principle of election,
paragraph 2).
 The testator's ignorance of their lack of title to the property is immaterial to any case
of election (Principle of election, paragraph 3).
 A legatee is not bound to elect until all circumstances that may influence their election
are known to them, and if a person elects in ignorance of material facts, they are not
bound by that election (Principle of election, paragraph 4).
 Election may be implied or inferred from acts or from failure to dissent, but such an
inference shall not arise unless the legatee actually knows of their right to elect
(Principle of election, paragraph 5).

In the case of Williamson v Williamson, how did the court interpret the doctrine of
election when dealing with joint tenancy property in a will?

In the case of Williamson v Williamson, the court addressed the application of the doctrine of
election concerning joint tenancy property in a will. The court held that where a testator
attempted to dispose of property that would have otherwise passed by survivorship (joint
tenancy property), the doctrine of election could not be applied to defeat the operation of law
(survivorship feature). The court based its decision on the premise that the survivorship
feature of joint tenancy was created by statutory law, whereas the doctrine of election is a
judicially applied rule derived from Roman-based civil law. The court, therefore, concluded
that statutory law takes precedence over common law rulings, and, in this case, refused to
allow the doctrine of election to defeat the survivorship feature of joint tenancy.

Intestate succession
How does Section 26 of the LSA address the provision for dependents who are not
adequately provided for in a will or on intestacy?

Section 26 of the LSA deals with the provision for dependents who are not adequately
provided for in a will or on intestacy. If a person dies after the commencement of the Act and
succession to their property is governed by its provisions, a dependent may apply to the court
for a review of the disposition of the deceased's estate made by the will, gift in contemplation
of death, or the law of intestacy. The court, upon considering the application, may order that
reasonable provision be made for the dependent out of the deceased's net estate if it finds that
the existing disposition does not adequately provide for the dependent's needs.

What does Section 29 of the LSA define as a "dependent," and how does it affect the
provision for such individuals?

Section 29 of the LSA defines a "dependent" for the purposes of Part III of the Act. A
dependent includes the wife or wives, former wife or wives, and the children of the deceased,
whether or not maintained by the deceased immediately prior to his death. It also includes
other relatives such as parents, step-parents, grandparents, grandchildren, step-children,
children whom the deceased had taken into his family as his own, brothers, sisters, half-
brothers, and half-sisters, who were being maintained by the deceased immediately prior to

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his death. In the case of a deceased woman, her husband can also be considered a dependent
if he was being maintained by her before her death.
The definition of a dependent under Section 29 determines who may have the right to apply
to the court for a review of the disposition of the deceased's estate under Section 26.

What does Section 26 of the Law of Succession Act (LSA) in Kenya address?

Section 26 of the LSA deals with the provision for dependants who have not been adequately
provided for by will or on intestacy when a person dies after the commencement of the Act.

Under what circumstances can a court order reasonable provision for a dependant
under Section 26 of the LSA?

A court can order reasonable provision for a dependant if it is of the opinion that the
disposition of the deceased's estate through their will, gift in contemplation of death, or under
the law of intestacy does not make reasonable provision for that dependant. The application
for such an order can be made by or on behalf of the dependant.

What types of provisions can the court make for a dependant under Section 27 of the
LSA?

The court has complete discretion to order a specific share of the estate to be given to the
dependant or make other provisions such as periodical payments or a lump sum. The court
can also impose conditions it deems appropriate.

What factors does the court take into account when making an order for provision
under section 28 of the LSA?

The court considers the following factors:

(a) The nature and amount of the deceased's property.
(b) The past, present, or future capital or income from any source of the dependant.
(c) The existing and future means and needs of the dependant.
(d) Whether the deceased made any advancement or gift to the dependant during their
lifetime.
(e) The conduct of the dependant in relation to the deceased.
(f) The situation and circumstances of the deceased's other dependants and beneficiaries
under any will.
(g) The general circumstances of the case, including the testator's reasons for not making
provision for the dependant.

Who qualifies as a "dependant" as per Section 29 of the LSA?

For the purposes of Part III of the LSA, "dependant" refers to the following:
(a) The wife or wives, or former wife or wives, and the children of the deceased, regardless
of whether they were maintained by the deceased immediately before their death.
(b) Such of the deceased's parents, step-parents, grandparents, grandchildren, step-children,
children whom the deceased had taken into their family as their own, brothers, and sisters,
and half-brothers and half-sisters, who were being maintained by the deceased immediately
prior to their death.

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 (c) In the case of a deceased woman, her husband if he was being maintained by her
immediately before her death.

Is there a limitation of time for making an application for dependency?

Yes, there is a limitation of time. No application shall be brought after a grant of

representation in respect of the estate to which the application refers has been confirmed as
provided by Section 71 of the LSA.

What does Section 34 of the LSA state about intestacy?

Section 34 of the LSA defines intestacy, stating that a person is deemed to die intestate in
respect of all their free property if they have not made a valid will that is capable of taking
effect.

In cases where an intestate has left one surviving spouse and child or children, what
entitlements does the surviving spouse have according to Section 35 of the LSA?

According to Section 35 of the LSA, where an intestate has left one surviving spouse and
child or children, the surviving spouse is entitled to: (a) The personal and household effects
of the deceased absolutely; and (b) A life interest in the whole residue of the net intestate
estate, with the exception that if the surviving spouse is a widow, this interest ceases upon her
re-marriage.

Under Section 35 of the LSA, what power does the surviving spouse have during the
continuation of the life interest?

The surviving spouse, during the continuation of the life interest provided by Section 35(1),
has a power of appointment of all or any part of the capital of the net intestate estate by way
of gift taking immediate effect among the surviving child or children. However, this power
cannot be exercised by will or in a manner that takes effect at any future date.

What recourse does a child have if they believe the power of appointment under Section
35(2) has been unreasonably exercised or withheld?

If a child believes that the power of appointment under Section 35(2) has been unreasonably
exercised or withheld, they or their representative (if a minor) may apply to the court for the
appointment of their share. The court will have the authority to award the applicant a share of
the capital of the net intestate estate, taking various factors into consideration as outlined in
Section 35(4).

What happens to the net intestate estate if there is no surviving spouse or children,
according to Section 39 of the LSA?

According to Section 39 of the LSA, if an intestate has left no surviving spouse or children,
the net intestate estate will devolve upon the kindred of the intestate in a specific order of
priority. The priority order is as follows: (a) Father, or if deceased, (b) Mother, or if deceased,
(c) Brothers and sisters, and any child or children of deceased brothers and sisters, in equal
shares, or if none, (d) Half-brothers and half-sisters and any child or children of deceased

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half-brothers and half-sisters, in equal shares, or if none, (e) The relatives who are in the
nearest degree of consanguinity up to and including the sixth degree, in equal shares.

How is the net intestate estate distributed if the deceased was polygamous, as stated in
Section 40 of the LSA?

If the intestate has married more than once under any system of law permitting polygamy, the
net intestate estate shall be divided among the houses according to the number of children in
each house. This division includes adding any surviving wife as an additional unit to the
number of children. The distribution within each house will then follow the rules set out in
Sections 35 to 38 of the LSA.

How is the estate of a polygamous marriage divided ?

The Law of Succession Act governs the distribution of an estate upon the intestate's death,
including in the context of polygamous marriages. According to Section 40 of the LSA:
 Division among Houses (Section 40(1)): If a person who has entered into more than
one marriage under a system of law permitting polygamy dies without a will, their
personal and household effects and the remaining net intestate estate should first be
divided among the different houses. The division should be based on the number of
children in each house, considering any surviving wife as an additional unit to the
number of children.
 Distribution within Each House (Section 40(2)): After the initial division among
houses, the distribution of the personal and household effects and the remaining net
intestate estate within each house should proceed in accordance with the rules set out
in sections 35 to 38 of the LSA. These sections lay out the share allocations to
surviving spouses, children, and other relatives in varying circumstances.

According to Section 41 of the LSA, what happens to the property devolving upon a
child or children?

Property devolving upon a child or children, as mentioned in Section 41 of the LSA, shall be
held in trust in equal shares for all or any of the children of the intestate who attain the age of
eighteen years or marry under that age. Similarly, the issue of any child who predeceases the
intestate and who attains the age of eighteen years or marries under that age will also be
entitled to a share, which shall be divided equally through degrees.

How are previous benefits provided to a child, grandchild, or house taken into account
under Section 42 of the LSA?

Section 42 of the LSA states that any property paid, given, settled, appointed, or awarded to a
child, grandchild, or house during the intestate's lifetime or by will, shall be taken into
account when determining their share of the net intestate estate. This means that previous
benefits will be considered in the final distribution of the estate to ensure a fair division.

How to deal with an estate of a person who has died intestate

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When dealing with the estate of a person who has died without a will (intestate), there are
several rules and procedures in place, which seem to be governed by the laws of Kenya in
this case:
Section 35: In a monogamous marriage, where the couple has children, the surviving spouse
is entitled to the deceased's personal and household effects. The spouse also has a life interest
in the whole residue of the net intestate Estate.
Section 36: If the deceased leaves behind a surviving spouse but no children, the surviving
spouse is entitled to:
 The deceased's personal and household effects
 The first 10,000 Kenyan Shillings or 20% (whichever is greater) of the residue of the
net intestate Estate
 A life interest in the remaining 80% of the residue of the Estate
Section 38: If the deceased leaves behind a child or children but no spouse, the net intestate
estate goes to the child or children.
Section 39: If the deceased leaves no surviving spouse or children, the estate goes to the
deceased's kindred or blood relatives, in a specified order of priority.
Section 40: If the deceased was polygamous, the estate is divided among the houses based on
the number of children in each house. The personal and household effects and the residue of
the Estate should first be divided among the houses. Then, the remaining estate is divided
according to the number of children in each house.

Grants

What is a grant of representation and in what scenarios is it required?

A grant of representation is a court-issued certificate confirming that a particular individual is

to act as the personal representative of a deceased person, to administer their estate. It's
needed when a person dies, leaving behind an estate that needs administration.

What is the difference between grants of probate and grants of letters of administration
as stipulated in Section 53 of the LSA?

 According to S53 LSA , there are two types of grants: grants of probate and grants of
letters of administration.
 A grant of probate is issued when a deceased person has left a valid will, whereas a grant
of letters of administration is issued when the deceased person has died intestate (without
leaving a will) or when a will exists but does not appoint any executors or those
appointed are unable or unwilling to act.

How does the authority of an executor differ from an administrator in the context of the
estate of a deceased person?

 An executor is a personal representative appointed by a will to distribute the property of a

deceased person according to the terms of the will. The executor's authority comes from
the will itself, while the grant of probate simply confirms this authority.
 An administrator, on the other hand, is appointed by the court in cases of intestacy, and
their authority is derived from the grant of letters of administration.
 Executors and administrators are not to be confused with beneficiaries. Beneficiaries are
those who benefit from the estate's distribution, while executors and administrators are
tasked with administering the estate.

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How is the appointment of executors conducted according to Section 6 of the LSA?
What categories of people are typically considered for the role?

 Executors are usually appointed expressly through a will, as per Section 6 of the Law of
Succession Act.
 Individuals often chosen as executors include spouses, advocates, banks, friends, and the
Public Trustee.

Can executors be implicitly appointed, and if so, under what conditions?

Executors can be implicitly appointed in certain scenarios, where the will implies that a
certain person should carry out the duties of an executor. These are known as 'executors
according to the tenor of the will'.

What are the considerations when appointing specialist executors?

Specialist executors are appointed when the estate comprises certain types of property. It is
advisable that such executors be experts in their fields. This category includes advocates,
banks, trust corporations, and the Public Trustee.

What are the guidelines for the number of executors and administrators?

Rule 25(6) of the Probate and Administration Rule states that a grant may be issued to a
single person or jointly to up to four people. Section 56(1)(b) of the Law of Succession Act
limits the number of executors who can take out a grant to a maximum of four.

How are disputes among executors or administrators resolved?

If a dispute arises among executors or administrators, it may need to be resolved via a hearing
before a judge or magistrate.

Who is ineligible to take out a grant of representation?

According to section 56(1)(a) of the LSA , a minor, a person of unsound mind, and a
bankrupt are ineligible to take out a grant of representation.

What happens in intestacy cases when the person who should get the grant is a minor?

According to Rule 32(1) of the Probate and Administration Rules, in intestacy cases where
the person to whom a grant ought to be made is a minor, administration should be made to an
adult or adults for the use and benefit of the minor until he attains the age of eighteen.

Who can apply for letters of administration?

Section 66 of the LSA stipulates that the following categories of persons may apply for and
be granted letters of administration:
- surviving spouse or spouses,
- children,
- parents,

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- siblings, half siblings, other relatives (in the nearest degree of consanguinity up to the
sixth degree) of the deceased,
- the Public Trustee and creditors.

What is the purpose of sections 35, 36, 37, 38, 39, and 40 of the Law of Succession Act?

The sections 35, 36, 37, 38, 39, and 40 of the Law of Succession Act provide a guide in
determining to whom the grant of letters of administration should be made between various
competing claimants during intestate succession.

What is the capacity of a married woman in terms of estate administration according to

section 18 of the Married Women’s Property Act, 1882?

Under section 18 of the Married Women’s Property Act, 1882, a married woman has the
capacity to act as an executrix or administratrix, alone or jointly with any other person or
persons, of the estate of a deceased person, without her husband, as if she were a feme sole.

Who is an executor de son tort and what are their rights and liabilities?

An executor de son tort is any person who acts as executor or administrator in the
administration of an estate without authority. They have no rights over the estate, but they are
liable to creditors and beneficiaries of the estate to the extent that the assets pass through their
hands. Their liability ceases when they hand over the assets to the lawful personal
representative.

What is the role of a citation in relation to an executor de son tort or a person who is
intermeddling in an estate?

A citation can be issued to an executor de son tort, or a person who is entitled to apply for a
grant in intestacy, who has intermeddled in the estate of the deceased to show cause why he
should not take a grant. It can compel such a person to take a grant and should be brought
after three months from the date of the death of the deceased.

Grant of Probate

Under what circumstances is a grant of probate made, and what is the effect of such a
grant?

A grant of probate is made under section 53(a) when it is proved that the deceased had left a
valid will, whether oral or written. The grant should cover all the property to which the will
provides. The effect of a grant of probate is twofold: it serves as proof of the terms and
proper execution of the will, and it confirms the executor's authority to act. However, it's
important to note that the executor's authority actually derives from the will itself.

Can an executor administer the estate of the deceased before obtaining a grant of
probate? If so, why is obtaining a grant of probate still important?

Yes, theoretically, an executor can administer the estate of the deceased before obtaining a
grant of probate. They can collect assets, distribute the estate, sue and be sued, and exercise
administrative powers conferred by the will or statute. However, in practice, obtaining a grant

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of probate is crucial because it serves as evidence of the executor's authority to act effectively
in discharging their duties. This was established in the case of Lalitaben Kantilal Shah vs.
Southern Credit Banking Corporation.

Can a will appoint multiple executors, and do they all need to take out a grant of
probate?

Yes, a will can appoint multiple executors. However, they do not all have to take out a grant
of probate. Any executor who decides not to take out a grant must renounce their right to
probate. If some executors do not apply for the grant or renounce their right, they may later
apply to be joined by endorsement to the grant (rule 19(1) of the Probate and Administration
Rules).

What is the doctrine of relation back, and how does it apply to grants of probate?

The doctrine of relation back applies to grants of probate. As per the explanation provided in
Lalitaben Kantilal Shah vs. Southern Credit Banking Corporation, under section 80(1) of the
LSA, once a grant of probate is issued to a party, all the intermediate acts that the party has
undertaken without the grant of probate will be validated. This is because the executor's title
is derived from the will, and all the estate and interest in the testator's property vests in the
executor upon the testator's death. Therefore, any act performed by the executor before
probate is a mere authentication of their title and is considered valid once probate is granted.

Grant of Letters of Administration with Will Annexed

What is a grant of letters of administration with the will annexed, and in what situations
is it issued?

A grant of letters of administration with the will annexed (or grant cum testamento annexo) is
issued when a deceased individual has a valid will but lacks a proving executor. This
situation arises when the will does not appoint an executor, the appointed executor has pre-
deceased the testator, the appointed executor renounces their role, or the cited executor fails
to obtain a grant of probate (Section 53(a)(ii) of the LSA.

The executor applies for the grant via a petition accompanied by the original will, two copies
of it, and the original death certificate. The application is filed in the High Court, followed by
an advertisement order in the Kenya Gazette. If no objections are made within 30 days, a
letter for grant is issued. The grant is confirmed after six months.

Who is eligible to receive a grant of letters of administration with the will annexed, and
what is the order of priority for such appointments?
The eligible recipients in order of priority for a grant of letters of administration with the will
annexed are as follows:
 The universal or residuary legatee
 A personal representative of a deceased residuary legatee
 The person(s) entitled to the administration of the deceased's estate if they had died
intestate
 The Public Trustee
 Any other legatee and creditors (Sections 63, 64, and 65 of the Law of Succession Act).

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How does a grant of letters of administration with the will annexed differ from a grant
of probate in terms of its legal implications and authority?

A grant of letters of administration with the will annexed serves as conclusive proof of the
will's terms and its proper execution. In contrast, a grant of probate merely confirms the
authority of the appointed executor. The significant difference lies in the fact that the grant of
administration with the will annexed empowers the administrator with authority, effectively
vesting the deceased's property in their name. This distinction arises because the
administrator receives their appointment from the court through the grant of letters of
administration, as opposed to being directly designated in the will.

Grant of Simple Administration

What is the purpose of a grant of simple administration, and in what situations is it

typically issued?

A grant of simple administration is made in cases of total intestacy (deceased without a will)
or when a will is invalidated. It is also issued when a will fails to effectively dispose of any of
the deceased's property.

How does the order of priority for a grant of simple administration align with the order
of entitlement to an estate on intestacy?

The order of priority for a grant of simple administration follows the order of entitlement on
intestacy. Spouses, descendants (children), and ascendants (parents) have preference in that
order, followed by siblings and their descendants, and relatives up to the sixth degree of
consanguinity.

In Re Kibiego (1972) EA 179, the court held that the widow is the proper person to obtain
representation to her husband's estate because she is the one who can rightfully, properly, and
honestly safeguard the assets of the estate for herself and her underage children.

A personal representative of a deceased person who falls within the categories set out in
Section 66 of the Law of Succession Act can be preferred over a living person when the
entitled person dies before taking out a grant.

Section 66 of the LSA Preference to be given to certain persons to administer where

deceased died intestate

When a deceased has died intestate, the court shall, save as otherwise expressly provided,
have a final discretion as to the person or persons to whom a grant of letters of administration
shall, in the best interests of all concerned, be made, but shall, without prejudice to that
discretion, accept as a general guide the following order of preference -

a. surviving spouse or spouses, with or without association of other beneficiaries;

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b. other beneficiaries entitled on intestacy, with priority according to their respective
beneficial interests as provided by Part V;
c. the Public Trustee; and
d. creditors:

Provided that, where there is partial intestacy, letters of administration in respect of the
intestate estate shall be granted to any executor or executors who prove the will.

What is the effect of a grant of simple administration, and how does it differ from a
grant of probate?

A grant of simple administration is conclusive evidence that the deceased died totally
intestate and without leaving a will. Unlike a grant of probate, which merely confirms
authority, a grant of simple administration confers authority to act and vests the deceased's
property in the administrator.

Does a grant of letters of administration have a retrospective effect, according to Section

80(2) of the Law of Succession Act?

No, a grant of letters of administration, with or without the will annexed, takes effect only
from the date of the grant and does not have a retrospective effect.

Can a person, whether a spouse or not, sue on behalf of the intestate estate of a deceased
person without a grant of representation?

No, as established in Troustik Union International and another vs. Mrs Jane Mbeyu and
another. Nairobi CACA. No. 145 of 1991, a person cannot sue on behalf of the intestate
estate of a deceased person unless they have a grant of representation at the time of filing the
suit.

Grants to the Public Trustee

Under what circumstances can grants of representation be made to the Public Trustee,
as outlined in section 6(2) of the Public Trustee Act?

Grants of representation can be made to the Public Trustee in several circumstances,

including: when the deceased died intestate with no one taking out probate or representation;
when beneficiaries or dependants cannot agree on who should take out representation; when
the deceased has died testate but failed to appoint an executor; when those named as
executors in the will have died, renounced probate, or are unwilling to act; when probate
hasn't been obtained within six months from the deceased's death; when the Public Trustee is
appointed as executor by the deceased; and when the deceased's estate is left unadministered
and the personal representatives are either dead or unwilling to complete the administration
of the estate.

What is the significance of section 46 of the LSA?

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Section 46 of the LSA comes into play when a deceased person has died without a will
(intestate) and no one has taken out probate or representation. In such cases, the Public
Trustee may be granted representation.

What happens when the deceased dies testate, but fails to appoint an executor?

If the deceased dies testate (leaving a will) but fails to appoint an executor, the Public Trustee
may be granted representation to administer the estate.

In what scenarios can the Public Trustee be appointed as an executor?

According to the case of Willingstone Muchigi Kimari vs. Rahab Wanjiru Mugo, the Public
Trustee can be appointed as an executor in situations where the deceased's estate is left
unadministered and the personal representatives are either dead or unwilling to complete the
administration of the estate.

How is the termination of the Public Trustee's role as an administrator done?

The case of Saleh bin Mohamed bin Omar Bakor vs. Noor binti Sheikh Mohamed bin Omar
Bakor explains that the role of the Public Trustee as an administrator ends when the
registrar's certificate is issued under rule 3 of the Public Trustee's Rules. The issuance of the
certificate makes the Public Trustee functus officio and the grant stands revoked.

What does it mean when the Public Trustee becomes functus officio under rule 3 of the
Public Trustee's Rules?

When the Public Trustee becomes functus officio, it means their role or authority in a certain
matter has ended. In the context of the Public Trustee's Rules, rule 3 states that the Public
Trustee's role as an administrator ends when the registrar's certificate is issued, rendering the
Public Trustee functus officio and the grant is revoked.

Limited grants

What is a limited grant ?

 A limited grant is a grant that does not give the personal representative authority (or
confirm the authority, in the case of a grant of probate) to act with respect to the whole
estate in all respects until the administration is completed. It may be described as a
restricted grant.
 Section 54 of the LSA allows the court to limit a grant of representation that it has
jurisdiction to make.
 A grant may be limited as to special purpose, or property, or time, or it may be one of the
various special types.
 The various classes of limited grants are set out in the 5 th Schedule to the Law of
Succession Act.

Explain each limited grant:

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(a) Limited as to purpose
Such limited grants are provided for under paragraphs 1 and 12 of the 5 th Schedule. There
are several types of grant that are each limited as to purpose in different ways.

(i) Grant ad colligenda bona- A grant ad colligenda bona is normally made where the assets
of the estate are of perishable or precarious nature and which need quick attention. The grant
ad colligenda bona is intended to give the administrator power only to collect and preserve
the grant estate, pending the making of a full grant. It is made where some urgent action is
needed in relation to the assets of the estate and there may be delay in obtaining grant. A
grant of letters of administration ad colligenda bona cannot confer the grantee the status of a
personal representative of a deceased person. It is used when there are perishable assets that
need immediate attention, such as a flower business or a milk business. The purpose is to
ensure that perishable goods are managed until the final determination of the succession case.

(ii) Grant ad litem - It is granted to enable someone represent the estate where the estate has
been sued or intends to sue. It is sought where it is necessary to make an estate a party to a
suit. It is usually taken out where a third party wishes to make the estate a defendant in an
action and no person entitled to a grant will take one out

(iii) Grant pendente lite - It is granted where there is a pending suit, particularly a dispute as
to the validity of the will or right to administer. It is limited to the duration of the pendency of
the suit. It allows the administrator appointed by the court to administer the estate until the
action is completed. It is limited in purpose in that it does not give authority to the
administrator to distribute the estate and it is also limited in time in, to the completion of the
pending proceedings. It allows the applicant to take actions necessary to defend or protect the
estate's interests while awaiting the final judgment of the succession proceedings. For
example, it can be used to access funds from the estate to take care of dependents' immediate
needs like school fees.

(iv) Grant de bonis non administratis - This is granted where the personal representative has
not completed the administration of the estate either because he has died or for some other
reason part of the estate has been left unadministered. A grant limited to the purpose of
administering the unadministered part may be issued. Where an administrator dies and the
estate is not fully administered, any of the beneficiaries entitled to the estate might file for
letters de bonis non. Heirs have a right to a grant of administration de bonis non after the
death of the personal representative.

(v) cessate grant - This is made under paragraph 21 of the 5 th Schedule, when the original
grant was limited as to time and that period has now expired, provided that the
administration of the estate is still incomplete.

(vi) temporary grant by a resident magistrate under section 49 - A resident magistrate

grants this in cases of apparent urgency and it is limited to collection of assets situated within
his jurisdiction and payment of debts. It differs from the grant ad colligenda bona in that it is
limited to collection of assets and payment of the debts of the estate, and not collection and
preservation of the assets. Its life is limited to six months.

(b) Limited as to property

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 It may be granted where a person dies leaving property of which he was the sole or
surviving trustee or in which he had no beneficial interest on his own account and leaves
no general representative or one who is unable or unwilling to act as such, letters of
administration limited to that property may be granted to the person beneficially
interested in the property or to another on his behalf.
 A grant limited to property may be also be made under rule 28 of the Probate and
Administration Rules, where the whole estate of a deceased person, whose domicile is
outside Kenya, comprises of immovable property situated in Kenya.
 It may also be granted where a testator appoints executors only of certain assets in a
specified area. Such executors obtain probate limited to that property. It is usually made
in cases where the estate includes settled land or because the testator has chosen to
appoint executors who are experts in a particular type of property to deal with part of the
estate.
 In situations where a specific property is involved in the deceased's estate, an applicant
may seek this limited grant to perform specific actions related to that property. For
example, it could involve managing and cultivating crops on the property until the
succession matter is concluded. Whereby there issued by the court requiring the particular
administrator to do something specific in the property. Maybe to continue growing crop,
maybe to harvests some maise in the property pending you know the administration of the
estate.
(c) Limited as to time- This limited grant provides the applicant with powers for a specified
period, such as one year or six months, to handle specific matters concerning the deceased's
estate. Once the granted time period expires, the powers granted by the limited grant cease to
exist.

(i) Grant durante aetate minore - Where either the executors or the administrators are
minors and as such they are not entitled to a grant in their own right. A will may limit the
time within which the representative is to act as executor e.g. during the minority of the
testator’s children, a grant may be made in the circumstances limited to the duration of the
minority. The grant automatically expires when the minor reaches 18 years old, unless some
other time is specified by the court.

(ii) Grant durante absentia - Where the personal representative is outside the jurisdiction,
the court may, grant representation to another person limited to the duration of the absence
of the personal representative.

(iii) Grant where will is unavailable - Where the deceased had made a will, but the same is
lost, misplaced or otherwise unavailable either because the will is outside jurisdiction or held
in a foreign court, until the original or more authentic copy is found or availed.

(iv) Administration for use and benefit of a person of unsound mind - Where a sole
executor or sole universal or residuary legatee or a person who would be solely entitled to the
estate of the intestate according to the rules of intestacy is mentally incapacitated, a grant of
letters of administration will be made, under paragraph 9 of the 5 th Schedule, to the person to
whom the care of his estate has been committed by a competent authority or if there is no
such person to any other person as the court thinks fit for the use and benefit of the person of
unsound mind, with power reserved for the incapacitated executor or administrator to take out
a grant when their disability ceases.

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(v) temporary grant limited to collection of assets and payment of debts - This is
provided for under section 49 of the Law of Succession Act and rule 37 of the Probate
and Administration Rules. It is related to the grant ad colligenda bona, the only difference
between them being that the limited grant under section 49 goes beyond collection of assets
to cover payment of debts. It is made pending the making of a full grant, and its life is six
years.

(vi) special limited grant Legal Notice No. 39 of 2002 - This type of limited grant is
provided for under the Probate and Administration (Amendment of the 5 th Schedule) Rules
through Legal Notice No. 39 of 2002. The limited grant is made in special circumstances
where the urgency of the matter is so great that it would not be possible for the court to make
a full grant in sufficient time to meet the necessities of the estate. It is not clear in what
respects the special limited grant differs from a grant ad colligenda bona18or the temporary
limited grant made under section 49(3) of the Laws of Succession Act.

How are objections to the issuance of a grant made?

Objections can be made within 30 days after the application is published in the Kenya
Gazette. The objector files his objections, in triplicate, to the High Court registry. The
registrar informs both the applicants and the objector about the objection and directs the
objector to respond to the petition for grant. The matter is then referred to the court. If the
objector wishes to withdraw his objections, a notice to withdraw is filed.

Foreign Grants

What is a foreign grant?

 A grant of representation obtained in Kenya only enables the personal representatives to

deal with the deceased’s property that is in Kenya.
 If the deceased has assets outside Kenya, it is necessary to obtain in that country a
separate grant that fulfils the probate requirements of that country.
 However, whether grants issued in Kenya can deal with property located in foreign
jurisdictions depends largely on the law in those jurisdictions.

Are foreign grants recognised in Kenya?

The Law of Succession Act allows, to a limited extent, the recognition of foreign grants in
Kenya. Section 4(1)(a) rules out the recognition of foreign grants with relation to real
property. The provision states that succession to immovable property in Kenya of a deceased
person shall be regulated by the law of Kenya, the domicile of the deceased at the time of his
death notwithstanding. Section 4(1)(b) provides that succession to the movable property of a
deceased person, wherever situated, shall be regulated by the law of the country of the
domicile of the person at the time of his death. 19This would mean that foreign grants are
recognised in Kenya to the extent only of movable property.

What is the procedure for depositing foreign grants with the High Court in Kenya?

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In Kenya, the procedure for depositing foreign grants with the High Court involves a
resealing process to make the foreign grant valid and enforceable within the Kenyan
jurisdiction. Here's a clear and succinct breakdown of the steps:
 Obtain a Foreign Grant: When a foreigner dies abroad but owns property in Kenya,
or when a Kenyan domiciled abroad has assets in Kenya, a foreign grant is obtained
from the relevant foreign court for estate administration and succession purposes.
 Initiate Resealing Process: The foreign grant cannot be used to administer the
deceased's assets in Kenya until it is resealed by the High Court of Kenya. Resealing
renders the foreign grant valid in Kenya.
 Deposit with the High Court: As per Section 77(1) of the Law of Succession Act,
foreign grants must be deposited at the principal registry and the Mombasa registry of
the High Court in Kenya. The foreign grants are sealed with the court's seal.
 Notice and Objections: Notice of the resealing application is published in the Kenya
Gazette, allowing for objections within a specified time. If no objections are raised,
and all requirements are met, the court orders the sealing.
 Endorsement and Certification: Once sealed, the foreign grant is endorsed by the
court's registrar under the court's seal, confirming its validity for use in Kenya.
 Procedure for Kenyan Nationals: A Kenyan who dies abroad applies for a grant in
their domicile country or in Kenya if they predominantly reside there. The issued
grant is then filed and minuted. If no objections arise, letters are issued.
 Procedure for Foreigners with Kenyan Property: Foreigners who die abroad but
have property in Kenya apply for a grant in their domicile country and file it with the
High Court of Kenya for resealing. After filing and minuting, a notice is published in
the Kenya Gazette, and if there are no objections, letters are issued.
 Application Requirements: The resealing application must follow Section 77 of the
Law of Succession Act and Rule 42 of the Probate and Administration Rules of 1980.
It should be supported by various documents, such as a certificate from the Estate
Duty Commissioner, an inventory of the deceased's assets and liabilities in Kenya,
evidence of domicile, and proof of death.
 Grants Presented in Other Countries: Grants made in the High Court of Kenya
may be presented in another country for resealing if required.

Who has the authority to reseal foreign grants in Kenya, and what is the purpose of
resealing?

The High Court of Kenya or the Minister, through a notice in the official gazette, may
designate other relevant authorities of foreign countries to reseal foreign grants. The purpose
of resealing foreign grants is to eliminate frauds and conflicts, as mentioned obiter in the case
of In Re Estate of Naftali (deceased) (2002) 2 KLR 684 (Waki J).

Under what type of property does sealing mostly happen?

The process of resealing a foreign grant in Kenya most commonly happens in relation to
immovable property, such as land and buildings, that are located in Kenya but owned by
someone who was domiciled and died abroad, or a foreigner who died abroad. The resealing
is necessary because a foreign grant is not recognized and cannot be used to administer the
deceased’s assets based in Kenya. To be deemed valid and enforceable, it must be resealed by
the High Court of Kenya.

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In which courts can a suit be brought against an administrator in his official capacity?

As a rule, a suit can only be brought against an administrator in his official capacity in the
courts of the country from which he derives authority to act.

Administration of an Estate without Grant

Under what circumstances can an estate be administered without a grant of

representation?

For fairly small estates not exceeding Kshs. 20,000.00 in gross value, a grant of
representation is not mandatory. The estate may be administered without it, as per section
8(1) of the Public Trustee Act.

Who has the authority to administer estates without a grant of representation in the
specified cases?

The Public Trustee is empowered to administer estates without a grant of representation for
estates not exceeding Kshs. 20,000.00 in gross value, where the deceased has died intestate or
died testate leaving a will in circumstances requiring the Public Trustee to apply for a grant
under section 6 of the Public Trustee Act.

What is the threshold for issuing a certificate of summary administration by the Public
Trustee?

Under section 8(2) of the Public Trustee Act, the Public Trustee may issue a certificate of
summary administration if the gross value of the estate does not exceed Kshs. 4,000.00. This
certificate is issued on the application of any person to whom a grant may be made under the
provisions of the Law of Succession Act.

What is the purpose of the certificate of summary administration?

The certificate of summary administration allows for the administration of small estates
(with a gross value not exceeding Kshs. 4,000.00) without the need for a full grant of
representation. It streamlines the process for such estates and facilitates their distribution to
rightful beneficiaries.

Which sections of the law grant authority to the Public Trustee for administering
estates without a grant?

The authority for the Public Trustee to administer estates without a grant is derived from
section 8(1) and section 8(2) of the Public Trustee Act.

How can someone make an application for the removal of an executor?

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 The Law of Succession Act and the Probate and Administration Rules in Kenya provide
the legal framework for appointing and removing an executor or administrator of an
estate.
 If the executor proves incompetent, fraudulent, or otherwise unsatisfactory, the
beneficiaries can apply for their removal.
 Rule 73 of the Probate and Administration Rules provides the court with the inherent
power to make necessary orders for justice and to prevent court process abuses.
 Section 76 of the Law of Succession Act enables the court to revoke or annul a grant if
the executor fails to meet certain requirements, such as timely confirming the grant and
diligently proceeding with the estate administration.
 The court can act on its own initiative (suo motu) to remove an executor, particularly if
it's unlikely that the estate will be properly administered due to the executor's conduct.
 An application for the removal of an executor typically requires the consent of all other
beneficiaries.
 However, if disputes among administrators obstruct the estate's diligent administration,
the court can override this requirement and appoint new administrators.
 The executor is legally obliged to adhere to certain guidelines, including confirming the
grant within a year, diligently administering the estate, and producing accounts as
required by law.
 Non-compliance with these guidelines, as well as failure to cooperate with co-
administrators and beneficiaries, can result in the court-ordered removal of the executor.
 The court also has the supervisory power to oversee the administration of the estate,
including the power to remove executors who hinder the process due to unnecessary
disagreements or conflicts with beneficiaries.

Who is an intermeddler?

What is the relation of criminal law to probate?

 The importance of the existence of the two elements of a crime incases of murder. A
person who murders another cannot benefit from the property of the person he has
murdered under section 96 of the LSA. The murderer is treated as though he died before
the deceased.
 Intermeddling with the property of a deceased is a crime.

What happens when a grant is obtained fraudulently?

The court will order the grant to be revoked by reason of fraud.

Section 76 of the LSA

This section outlines various conditions under which a court might revoke or annul a grant of
representation:

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 a. If the proceedings to obtain the grant were substantially defective. This could
be due to procedural errors or mistakes in the process.
b. If the grant was obtained fraudulently, such as through false statements or
concealing important information.
c. If the grant was obtained based on a false claim that was essential for
justifying the grant, even if the falsehood was made in ignorance or
inadvertently.
d. If the person who received the grant has, without reasonable cause, failed to
confirm the grant within the prescribed time frame, has not been diligent in
administering the estate, or has failed to provide the court with an inventory or
account of administration as required, or has submitted a false inventory or
account.
e. If the grant has become useless or inoperative due to circumstances that arose
after the grant was made. This could occur, for example, if the assets of the
estate have been completely depleted, or if the estate has been fully
administered and there is no further need for the grant.

Explain the presumption of marriage in Kenya

Mary Nyambura Kangara vs Paul Ogari Mayaka, the Supreme Court affirmed that the
doctrine of presumption of marriage still exists in Kenya but insisted it is the exception rather
than the rule and ought to be used sparingly and only when there is compelling evidence to
support it. The court set out eight conditions that must be satisfied to presume a marriage and
they are:

1. The parties must have lived together for a long period of time.
2. The parties must have the legal capacity to marry.
3. The parties must have intended to marry.
4. There must be consent by both parties.
5. The parties must have held themselves out to the outside world as being a married
couple.
6. The onus of proving the presumption is on the party who alleges it.
7. The evidence to rebut the presumption has to be strong, distinct, satisfactory and
conclusive.
8. The standard of proof is on a balance of probability.

Balance of proof falls on them to prove that they have been living together as a married
couple

The court also noted that society is changing, and more couples are living together for long
periods, in interdependent relationships, without getting married. The court emphasized that
in those kinds of situations, a presumption of marriage can never be made as the intention to
marry does not exist.

The court went on to state that perhaps it is the right time for parliament to work with the
office of the Attorney General to recognize adult interdependent relationships and enact
Statute that deals with cohabitees in long-term relationships; their rights, and obligations.

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Who is an administrator, executor and trustee and how are they appointed?
An administrator, executor, and trustee are key roles involved in the management and
distribution of a person's assets after their passing. Each of these roles serves distinct
functions and may be appointed through different means.
 Executor: An executor is a personal representative designated by the testator (the person
who created the will) to carry out the wishes outlined in their will upon their death. The
executor's primary responsibility is to ensure that the deceased's assets are distributed
according to the provisions stated in the will. They have the legal authority to manage the
estate and handle matters such as paying off debts, taxes, and distributing assets to the
beneficiaries as specified in the will. The appointment of an executor is typically done
through the testator's will, where they explicitly name the individual(s) they want to take
on this role. This appointment is made official through the legal process known as
probate, during which the court validates the will and grants the executor the necessary
authority to carry out their duties.
 Administrator: In situations where a person passes away without leaving a valid will
(intestate), or if the will does not name an executor, the court appoints an administrator to
oversee the administration of the deceased's estate. The administrator's role is similar to
that of an executor; however, their appointment is determined by the court rather than the
testator. In intestate cases, the court will appoint an administrator to ensure that the estate
is managed and distributed properly among the legal heirs according to the laws of
intestacy (laws that govern the distribution of assets when there is no valid will).
 Trustee: There are two primary types of trustees:
a) Trustee for minors: This type of trustee is appointed to hold and manage assets on behalf
of a minor who is not legally allowed to manage their own affairs. The trustee's duty is to
safeguard and administer the minor's assets until they reach the age of majority or a specified
age mentioned in the trust document.
b) Public Trustee: The Public Trustee is an office within the Attorney-General's chambers
and is responsible for administering the estates of individuals who have either appointed the
Public Trustee as their trustee or those who have not appointed any specific trustee in their
will. This arrangement is often chosen by individuals who lack appropriate candidates for the
role of executor or trustee among their acquaintances or family members.

Explain the meaning of propounding a will

Propounding will means to take legal action to have it authenticated as part of probate, it
includes a formal inspection of the will by the court.

When a person passes away in Kenya, their will typically needs to go through the probate
process to ensure that it is legally recognized and its instructions are carried out. The process
of propounding a will in Kenya involves the following steps:
 Filing a Petition: The person who has possession of the will or an interested party, such
as a beneficiary or executor named in the will, initiates the process by filing a petition
with the High Court of Kenya. The petition requests the court to accept and recognize the
will as the valid last will and testament of the deceased person.
 Notice to Interested Parties: Once the petition is filed, the court requires the petitioner
to give notice to all interested parties, including beneficiaries, heirs, and potential
challengers, informing them about the existence of the will and the intent to probate it.
This notice allows interested parties to contest the will if they have objections or believe
it is invalid.

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 Hearing and Evidence: A hearing is scheduled by the court where interested parties can
present evidence either supporting or contesting the validity of the will. This may involve
witnesses, experts, and documentary evidence to establish the authenticity and validity of
the will or raise any issues regarding its execution, capacity of the testator, or potential
undue influence.
 Court Decision: Based on the evidence presented, the court will make a decision
regarding the validity of the will. If the court is satisfied that the will meets the legal
requirements and there are no substantial objections or challenges, it will admit the will to
probate, officially recognizing it as the valid will of the deceased person.
 Executor Appointment and Probate Process: Once the will is propounded and
admitted to probate, the court can appoint an executor or personal representative to
administer the estate in accordance with the instructions outlined in the will. The probate
process continues with the gathering and distribution of assets, payment of debts and
taxes, and fulfilling the wishes of the deceased as expressed in the will.

What is the difference between grant of probate and grant of letters of administration?

The grant of probate applies when a person dies leaving a valid will, allowing the named
executor to administer the estate. The grant of letters of administration, on the other hand,
applies when a person dies without a valid will, enabling an administrator to manage and
distribute the estate in accordance with the laws of intestacy.

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344
COMMERCIAL

What is a partnership?

A partnership is defined by Section 2 of the Partnerships Act, 2012 as the relationship that
exists between persons who carry on business in common with a view to making a profit. It is
an arrangement between two or more people coming together with the intention of earning
profits from a certain business. The persons involved can be natural (biological individuals)
or artificial (bodies corporate, juridical persons, or creatures of law).

What three elements must be present in a partnership?

Three elements must be present for a relationship to be considered a partnership:

1. The partnership must involve persons (natural or artificial) who carry on business in
common.
2. The aim of carrying on the business must be to make a profit.
3. The partnership must be based on a contractual relationship between the persons
involved.

Why are partnerships important?

Partnerships are a form of business association and a vehicle for carrying out commercial
activities. They are important to professionals such as lawyers because the law requires that
advocates establish partnerships.

What bodies are excluded from being partnerships?

Section 3 The Partnership Act of 2011 in Kenya excludes limited liability partnerships,
bodies corporate (incorporated under the Companies Act or formed under an enabling
statute), and foreign limited partnerships from being considered as partnerships.

What are the types of partnerships?

There are three types of partnerships:

- General partnerships (PART 2 of the Partnership Act, 2012)

- Limited partnerships (PART 3 of the Partnership Act, 2012)
- Limited liability partnerships. (Limited Liability Partnership Act (2011))

The limited liability partnership is a unique form as it borrows aspects from different business
associations, making it hard to categorize.

What laws mainly regulate partnerships in Kenya?

Partnerships in Kenya are mainly regulated by:

- The Partnership Act (2012) which governs general and limited partnership
- Limited Liability Partnerships Act (2011) that governs limited liability partnerships.

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Which has priority, the statutes of the partner's contractual agreements?

The partners' contractual agreements take precedence over the act as long as what is
contracted is not unlawful or contrary to any statutes. The act will only intervene if the
objects of the organization are unlawful, if the contracted matters are illegal, or if there is no
partnership deed or the deed is silent on certain issues.

What are the advantages of a partnership over a company or any other type of business
arrangement?

- Partnerships are less costly to set up

- Partnerships have fewer business requirements and documentation
- In partnerships partners not only bring in money but also expertise and knowledge.
- Partnerships have fewer procedures for winding up, which makes them an easier way of
making profits.

Who is a partner?

- A partner is a person carrying on business in common with a view to making a profit.

- They must be over the age of majority and have full mental capacity (contractual
capacity).
- In case of professional partnerships (e.g., lawyers, accountants), the partners need to have
the particular qualifications of their profession.

Why is it important not to consider someone a partner because of their title?

- It's essential not to consider someone a partner merely because of their title because there
are instances where the title "partner" is given to persons who are not partners in the strict
legal sense, such as salaried or fixed share partners.
- The important factors are whether their rewards are contingent on profits and whether
they contribute towards meeting the organization's needs.

What is the partners employee status?

- A partner within the meaning of the Act cannot also be an employee (s8(2) Partnership
Act).
- This is based on the legal theory that a partnership is a relationship between partners, and
a partner being employed by himself and his partners is a legal impossibility.

How is General Partnership registered?

To register a General Partnership (GP), you need to register it as a business name under the
Registration of Business Names Act. The registration process is done through the business
registration services website.

What happens to a General Partnership upon registration?

Upon registration, a General Partnership (GP) becomes a business entity. However, it does
not become a body corporate with perpetual succession and does not acquire a separate legal

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entity personality from its partners. The partnership retains its identity as a collection of
individuals, and any liabilities and obligations are shared among the partners.

How is a Limited Partnership registered?

To register a Limited Partnership, you also need to do it under the Registration of Business
Names Act. The registration process involves submitting an application to the Registrar,
along with a statement signed by one or more general partners specifying various details
about the partnership.

What happens to a Limited Partnership upon registration?

Similar to a General Partnership, upon registration, a Limited Partnership does not become a
body corporate with perpetual succession and does not acquire a separate legal entity
personality from its partners. The partnership retains its identity as a collection of individuals,
and any liabilities and obligations are shared among the partners.

How is a Limited Liability Partnership registered?

To register a Limited Liability Partnership (LLP), you must follow the procedures outlined in
the Limited Liability Partnership Act (2011). The process involves lodging a statement with
the Registrar, which is signed by each person who proposes to be a partner of the proposed
LLP, and it must contain specific information about the partnership.

What happens to a Limited Liability Partnership upon registration?

Upon registration, a Limited Liability Partnership (LLP) becomes a body corporate with
perpetual succession. It acquires a separate legal entity personality from its partners, meaning
it is distinct from the individual partners. Therefore, any changes in the partners do not affect
the existence, rights, or obligations of the LLP. The LLP gains the ability to sue and be sued,
own and hold property, and perform other acts and activities as a body corporate may
lawfully do. Additionally, the LLP is required to acquire and maintain a common seal for
executing necessary documents.

What is the liability for General Partnerships (GP)?

In a GP, each partner has unlimited liability, which means that they are personally liable for
all the debts and obligations of the partnership. If the partnership incurs a debt, each partner's
personal assets could be used to settle the business debts. This liability extends to court
orders, arbitral awards, judgments, or other orders made against the partnership. However,
the partnership is not bound by an act or omission of a partner who has no authority to act on
behalf of the partnership, and the individual who engaged with the unauthorized partner
either knew about this lack of authority or was unaware of the partner's association with the
partnership. Moreover, if a partner causes loss or injury while acting in the ordinary course of
the business of the partnership or with its authority, the partnership is liable for this loss or
injury. But partners can escape personal liability for actions taken by another partner outside
the terms of the partnership deed, as this is seen as acting without authority and contrary to
the partnership's interests.

What is the liability for Limited Partnerships (LP)?

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An LP consists of one or more general partners with unlimited liability and one or more
limited partners with limited liability. A general partner in an LP is liable for all the debts and
obligations of the partnership, similar to a GP. However, a limited partner's liability is limited
to the amount they contributed to the partnership when they joined. Limited partners are not
permitted to draw out or receive back their capital contributions to the partnership.

What is the liability for Limited Liability Partnerships (LLP)?

In an LLP, all partners have limited liability. A partner is not personally liable, directly or
indirectly, for the partnership’s obligations arising from contracts, torts, or other sources. A
partner is also not personally liable for the wrongful act or omission of another partner of the
LLP. The liabilities of an LLP are paid out of the property of the partnership. If a partner of
an LLP is liable to a person other than another partner as a result of a wrongful act or
omission, the LLP is liable to the same extent as that partner. However, an LLP is not bound
by any actions taken by a partner who does not have the authority to act on behalf of the LLP.

Explain the management of the business for General Partnerships

For General Partnerships, the management of the business is shared among all partners, who
can all participate in the business of the partnership. This can be somewhat unclear in terms
of accountability. Decisions regarding ordinary matters related to the partnership business are
decided by the majority of the partners, while any change in the nature of the business
requires the agreement of all partners. Each partner acts as an agent of the partnership for its
business purposes, and each one's responsibility for the partnership is defined in the
partnership deed.

Explain the management of the business for Limited Partnerships

In Limited Partnerships, a limited partner does not participate in the management of the
partnership business. Instead, this responsibility lies with the general partners. Decisions on
ordinary matters related to the business are made by the general partners, or if there is more
than one general partner, a majority of them. Just like in General Partnerships, any change in
the nature of the business requires the agreement of all partners. Each partner, despite their
management role, is an agent of the partnership for the purpose of its business.

Explain the management of the business for Limited Liability Partnerships (LLPs)

The management of the business is conducted by a designated manager. This manager

handles the day-to-day activities. They can enter into contracts in the name of the partnership,
they manage the day-to-day activities of the partnership, the administrative aspect appointing
employees, dismissing employees, determining the location of the business, the lease
agreements

For substantive agreements such as transferring property, the managing partner has to seek
the consent of all other partners. Any changes in the LLP must be approved by all partners,
documented in writing, and submitted to the registrar of companies. In addition to these
responsibilities, the manager must also sign a declaration about the LLP's solvency within 15
months after registration and once every calendar year thereafter. Furthermore, the LLP is
required to keep a record of all its transactions and accounts. Just like in the other partnership
types, each partner acts as an agent of the partnership for its business purposes.

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Where would a unanimous decision in a partnership agreement be necessary?

A unanimous decision in a partnership would be necessary in the following instances:

 Changing the type of partnership: For instance, transitioning from a general partnership to
a limited partnership, or from a limited partnership to a limited liability partnership,
would require the agreement of all partners.
 Altering the business strategy: If the partnership considers pursuing a different line of
work or targeting a new market, a unanimous decision would be necessary. For example,
if a law firm decided to shift its focus to becoming a strategic advisor or consultant, all
partners would need to agree.
 Setting thresholds for decision-making: While not every decision may require unanimous
consent, the partnership deed might specify certain thresholds for different types of
decisions. These could range from simple majority decisions for day-to-day operations to
supermajority (2/3 or 75%) decisions for more significant changes that impact the core of
the partnership. However, as much as possible, broad consensus and agreement on issues
is encouraged in a partnership to ensure smooth operations and maintain harmony among
partners.

What happens after the death of a General Partner ?

In a General Partnership, when a partner (General Partner) dies, the following happens:
 Liability for debts and obligations: The estate of the deceased General Partner becomes
liable for any debts and obligations incurred by the partnership after the General Partner
became a partner. This means that the deceased General Partner's estate will be
responsible for settling any outstanding debts and obligations that arose during their time
in the partnership.
 Transfer of debts and obligations: The debts and obligations of the partnership, which
were incurred after the General Partner joined the partnership, become the responsibility
of the remaining General Partners. The surviving General Partners will have to address
and clear these obligations to continue the operations of the partnership.

What happens after the death of a Limited Partner?

In a Limited Partnership, when a partner (Limited Partner) dies, the following happens:
 Liability for debts and obligations: Similar to General Partnerships, the estate of the
deceased Limited Partner is liable for any debts and obligations incurred by the
partnership after the Limited Partner became a partner. This means that the estate of the
deceased Limited Partner will be responsible for settling any outstanding debts and
obligations that arose during their time in the partnership.
 Transfer of debts and obligations: The debts and obligations of the partnership, which
were incurred after the Limited Partner joined the partnership, do not automatically
become the responsibility of the remaining Limited Partners. Unlike General Partners,
Limited Partners have limited liability, and their personal assets are not generally at risk
to cover partnership debts.

What happens after the death of a Limited Liability Partner?

In a Limited Liability Partnership (LLP), when a partner (Limited Liability Partner) dies, the
following happens:

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  Cessation of Partnership: The deceased Limited Liability Partner ceases to be a
Partner in the LLP upon their death. Their involvement in the partnership comes to an
end.
 Distribution of assets: Unless the partners agree otherwise in the partnership
agreement, the estate of the deceased Limited Liability Partner is entitled to receive
the capital contribution made by the partner to the LLP and any profits they were
entitled to at the time of their death.

What does holding out mean, and what are its consequences on a partnership?

"Holding out" as partners refers to a situation where individuals are portrayed or represented
as partners in a partnership, even if they are not formally designated as such. This
representation can be through written communication, oral statements, or conduct exhibited
by the individuals themselves or others associated with the partnership. Even if these
individuals are not technically partners in the legal sense, if they allow themselves to be
portrayed as partners or do not correct such portrayals, they may be held liable as if they were
actual partners.
Consequences of "holding out" as partners:
 Liability for partnership debts: When individuals are held out as partners and
represent themselves as such, they may become liable for the debts and obligations of
the partnership. This means that if the partnership incurs debts during the time these
individuals are being portrayed as partners, they can be held responsible for those
debts, similar to actual partners.
 Liability to third parties: The individuals held out as partners can be held liable to
third parties who have relied on the representation of them being partners. If someone
provides credit to the partnership or alters their position based on the belief that these
individuals are partners, then the "holding out" individuals can be held accountable
for any adverse consequences that arise from such transactions.
 Oral, written, or conduct-based representations: The way individuals are held out
as partners can be through various means, such as written materials like business
cards or website information, oral introductions to clients, or through the conduct of
the partnership itself. Regardless of the method of representation, the liability
consequences remain the same.
 Impact on third-party dealings: The liability of the individuals held out as partners
extends to anyone who has given credit to the partnership based on the belief that
these individuals are actual partners. This means that any third party dealing with the
partnership on the faith of such a representation can seek recourse against the
"holding out" individuals in case of default or non-payment by the partnership.
It's important for individuals to be cautious about allowing themselves to be portrayed as
partners in a business if they are not officially part of the partnership. The consequences of
"holding out" can be significant, exposing them to potential legal and financial liabilities for
the partnership's actions. Partnerships should also be clear in their representations and ensure
that only actual partners are identified as such to avoid any misunderstandings or unintended
liabilities.

What is the duty of good faith that a partner has?

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 Under the Partnership Act, a partner has a duty to act in good faith towards the partnership
and the other partners in relation to all matters affecting the partnership. This duty
encompasses several key responsibilities:
a. Trust and cooperation: Partners are expected to trust one another and cooperate in the
best interest of the partnership to carry on business successfully.
b. Disclosure to prospective partners: Partners must disclose to prospective or incoming
partners any relevant information that would reasonably be expected to influence their
decision to join the partnership.
c. Full information and true accounts: Partners are required to render true accounts and
provide complete information concerning the partnership to each other and their legal
representatives. This ensures transparency and equal access to relevant information among all
partners.

What are the actions required under the duty of good faith?
a. Render true accounts and full information: Partners must provide accurate and
complete accounts of the partnership's financial performance and share all relevant
information with each other, ensuring that no partner has an unfair advantage or is kept in the
dark about partnership matters.
b. Account for any unauthorized benefits: If a partner derives any benefit from a
transaction concerning the partnership or uses partnership property, the firm name, or a
business connection for personal gain without the consent of the other partners, they are
obligated to account for and return those benefits to the partnership.
c. Account for profits from competition: If a partner carries on a business in competition
with the partnership without the consent of the other partners and makes profits from it, they
are required to account for and pay over those profits to the partnership.

d. Forfeiture of profit shares for breach of fiduciary duty: In the UK, if a partner breaches
their fiduciary duty to the partnership, the remedy of forfeiture of the partner's entitlement to
profit shares in the partnership may apply.

How do partners in a general partnership cease to be a partner?

In a general partnership, partners can cease to be a partner through the following means:
a) Death: If a partner passes away, their partnership interest will cease to exist.
b) Expulsion: The co-partners have the authority to expel a partner under certain
circumstances, such as when a court order is made against the partner, or if the partner's
shares in the partnership are subject to attachment in execution for a debt that is not a
partnership debt. A notice of not less than 3 months should be given by the partnership to the
partner they intend to expel.
c) Dissolution: If the partnership is dissolved for any reason, all partners will cease to be
partners.
d) Court Order: If the court issues an order under section 44(1)(a) or (b) to remove a person
as a partner, that individual will cease to be a partner.
e) Bankruptcy or Sequestration: If a bankruptcy order or an award for sequestration is
made against a partner, they will cease to be a partner in the general partnership.
A partner may also choose to resign voluntarily by issuing a resignation, which should be
published in a newspaper of nationwide circulation to inform the public about their departure
from the partnership.

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How do partners in a limited partnership cease to be a partner?
In a limited partnership, partners can cease to be a partner through the following means:
a) Deregistration: If a partner is deregistered as a limited partner, they will no longer be a
part of the limited partnership.
b) Death: If a limited partner passes away, their partnership interest will cease to exist.
c) Dissolution: If the limited partnership is dissolved for any reason, all partners, including
limited partners, will cease to be partners.
It is important to note that partners in a limited partnership cannot be expelled under the
provisions of section 29 as is the case in a general partnership.

How do partners in a limited liability partnership cease to be a partner?

In a limited liability partnership (LLP), partners can cease to be a partner through the
following means:
a) Death: If a partner dies, their partnership interest in the LLP will cease to exist.
b) Dissolution: If the LLP is dissolved for any reason, all partners will cease to be partners.
c) Complying with LLP Agreement: A partner may cease to be a partner by complying
with the requirements specified in the relevant LLP agreement.
d) Resignation: In the absence of an LLP agreement specifying resignation requirements, a
partner can resign by giving not less than ninety days' notice to the other partners about their
intention to resign as a partner.

It is worth noting that bankruptcy, by itself, is not a cause for a partner to cease being a
partner in the LLP. However, if a partner is adjudicated bankrupt, there may be restrictions on
the partner acting as a manager of the partnership under Part VI.
What are the common provisions in partnership agreements?
The common provisions in a partnership agreement are essential for governing the
relationship between partners and ensuring clarity in various aspects of the partnership. Some
key areas that a partnership agreement should cover include:
 Parties: Identify the names and details of all the partners involved in the partnership.
 Partnership Name and Nature of Business: Clearly define the name of the
partnership and specify the nature of the business they intend to engage in.
 Commencement and Duration: Establish the date when the partnership begins its
operations and, if applicable, specify the duration or the conditions under which the
partnership will terminate.
 Capital, Profits, and Losses: Address how the capital will be contributed by
partners, the distribution of profits and losses, and how losses will be shared among
partners.
 Partnership Property: Define the assets and property owned by the partnership and
outline how they will be managed and utilized.
 Banking and Accounts: Specify the procedures for banking, accounting, and
financial reporting within the partnership.
 Management and Decision Making: Determine how management responsibilities
will be allocated among partners and define the decision-making process for major
partnership matters.
 Dispute Resolution: Outline the mechanisms for resolving disputes between partners,
such as mediation or the appointment of a third-party arbitrator.
 Duties and Responsibilities of Partners: Clearly state the roles, duties, and
responsibilities of each partner within the partnership.
 Admission and Exit of Partners: Describe the process for admitting new partners
into the partnership and how existing partners can exit or retire from the partnership.

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  Termination and Winding Up: Detail the conditions and procedures for dissolving
the partnership and distributing its assets upon termination.
Language around money, management and decision making, and the nature of the business
are particularly crucial aspects that require clear and precise language to avoid
misunderstandings.

How can a partnership deed be amended?

Amending a partnership deed requires following the provisions set out in the existing
agreement. The process may differ based on the number of partners and the specific
thresholds defined in the deed. Typically, the steps to amend a partnership deed are as
follows:
 Proposal: A partner seeking to amend the partnership deed drafts a proposal outlining
the proposed changes to specific clauses or agreements.
 Circulation: The partner circulates the proposal among all the partners, providing
them with a detailed memorandum of the proposed amendments.
 Meeting: A meeting of the partnership is called, giving partners adequate notice, to
discuss and vote on the proposed amendments.
 Voting: Partners cast their votes on the proposed changes, and the outcome is
determined based on the thresholds defined in the partnership deed.
 Consent: If the partnership deed requires unanimity, all partners must consent to the
amendments for them to take effect. If the partnership has a prescribed threshold, the
amendments will proceed based on the specified voting results.
 Documentation: Once the amendments are approved, the partnership deed should be
formally updated to reflect the changes, and all partners should receive copies of the
amended deed.

Regular reviews of the partnership deed, preferably every three years, can help ensure that the
agreement reflects the current consensus and accommodates any necessary changes due to
evolving circumstances within the partnership.

What are the common provisions in partnership agreements?

The common provisions in a partnership agreement are essential for governing the
relationship between partners and ensuring clarity in various aspects of the partnership. Some
key areas that a partnership agreement should cover include:
 Parties: Identify the names and details of all the partners involved in the partnership.
 Partnership Name and Nature of Business: Clearly define the name of the
partnership and specify the nature of the business they intend to engage in.
 Commencement and Duration: Establish the date when the partnership begins its
operations and, if applicable, specify the duration or the conditions under which the
partnership will terminate.
 Capital, Profits, and Losses: Address how the capital will be contributed by
partners, the distribution of profits and losses, and how losses will be shared among
partners.
 Partnership Property: Define the assets and property owned by the partnership and
outline how they will be managed and utilized.
 Banking and Accounts: Specify the procedures for banking, accounting, and
financial reporting within the partnership.

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  Management and Decision Making: Determine how management responsibilities
will be allocated among partners and define the decision-making process for major
partnership matters.
 Dispute Resolution: Outline the mechanisms for resolving disputes between partners,
such as mediation or the appointment of a third-party arbitrator.
 Duties and Responsibilities of Partners: Clearly state the roles, duties, and
responsibilities of each partner within the partnership.
 Admission and Exit of Partners: Describe the process for admitting new partners
into the partnership and how existing partners can exit or retire from the partnership.
 Termination and Winding Up: Detail the conditions and procedures for dissolving
the partnership and distributing its assets upon termination.

Language around money, management and decision making, and the nature of the business
are particularly crucial aspects that require clear and precise language to avoid
misunderstandings.

How can a partnership deed be amended?

Amending a partnership deed requires following the provisions set out in the existing
agreement. The process may differ based on the number of partners and the specific
thresholds defined in the deed. Typically, the steps to amend a partnership deed are as
follows:
 Proposal: A partner seeking to amend the partnership deed drafts a proposal outlining the
proposed changes to specific clauses or agreements.
 Circulation: The partner circulates the proposal among all the partners, providing them
with a detailed memorandum of the proposed amendments.
 Meeting: A meeting of the partnership is called, giving partners adequate notice, to
discuss and vote on the proposed amendments.
 Voting: Partners cast their votes on the proposed changes, and the outcome is determined
based on the thresholds defined in the partnership deed.
 Consent: If the partnership deed requires unanimity, all partners must consent to the
amendments for them to take effect. If the partnership has a prescribed threshold, the
amendments will proceed based on the specified voting results.
 Documentation: Once the amendments are approved, the partnership deed should be
formally updated to reflect the changes, and all partners should receive copies of the
amended deed.

Regular reviews of the partnership deed, preferably every three years, can help ensure that the
agreement reflects the current consensus and accommodates any necessary changes due to
evolving circumstances within the partnership.

Ways of Dissolving a General Partnership (GP):

 The number of partners falls below two.
 The partnership is for a fixed term, and the term expires.
 Pursuant to a Court order on the application of a partner.

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  An order is made by a Court under section 51(1) on the application of the Minister.
 An order is made by a Court under section 51(2) of the Act.
 The partners agree to break up the partnership.
 Partners publish a notice accordingly.
 The partnership will be deemed dissolved if all partnership property is distributed to
persons entitled to it, trust property is transferred to the person entitled to it, there are
no outstanding liabilities against the partnership, and no claims are outstanding by or
against the partnership.
Ways of Dissolving a Limited Partnership:
 The winding up of a limited partnership shall be conducted by a general partner,
unless the Court orders otherwise.
 Limited partnerships can expel a partner under Section 29 of the Partnership Act if
specific conditions are met:
o An order is made against the partner under section 44, or
o The partner's shares in the partnership are subject to an attachment in
execution in respect of a debt that is not a partnership debt.
Ways of Dissolving a Limited Liability Partnership:
 The managing partner must sign a declaration explaining why the Limited Liability
Partnership should be dissolved.
 The declaration is lodged with the registrar of companies.
 Limited Liability Partnerships are formed under an agreement called an Limited
Liability Partnerships agreement.
 Dissolution is achieved by lodging the dissolution declaration with the registrar of
companies.

What are the Key Features of a Limited Liability Partnership (LLP)?

Body Corporate:
 An LLP is a separate legal entity with unlimited capacity to conduct lawful activities.
 It can sue and be sued in its own name, own property, and carry out acts that a body
corporate can do.
Limited Liability:
 Partners in an LLP enjoy limited liability, up to the amount of their financial
contribution to the LLP.
 Partners are not personally liable for the debts and obligations of the LLP, except for
their own acts of negligence or personal wrongdoings.
Membership of an LLP:
 An LLP has partners or members instead of shareholders or directors.
 Natural persons or body corporates can be members of an LLP, and there must be at
least two members.
Relationship between Partners:
 The rights and duties of the LLP and its members are governed by an agreement
between the members and the LLP.
 In the absence of any specific agreement, the default provisions in the First Schedule
of the LLP Act apply.
Default Provisions in the LLP Act (Schedule 1):
 All members are entitled to share equally in the capital and profits of the LLP.
 The LLP must indemnify members for payments made and personal liabilities
incurred in the ordinary conduct of LLP business or for preserving LLP business or
property.
 Every partner may participate in the management of the LLP.

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  No member is entitled to remuneration for acting in the business or management of
the LLP.
 New members can join only with the consent of all existing partners.
 Ordinary matters related to the business can be decided by a majority vote of the
partners, with each partner having one vote.
 Partners must provide true accounts and information to other members.
 Competition and conflict of interest rules apply to members' personal businesses.
 No majority of members can expel any member unless a power to do so is agreed
upon explicitly.

Governance and Decision-Making:

 Partners have flexibility in determining the management structure and decision-
making process.
 Voting thresholds and procedures for major decisions can be defined in the
partnership agreement.
Common Seal:
 An LLP is required to have a common seal bearing its name, which is used to
authenticate important documents.

What is the difference between Limited partnership and LLP?

 Liability Protection: In an LP, only limited partners enjoy limited liability, while
general partners have unlimited personal liability. In an LLP, all partners benefit from
limited liability, irrespective of their role or level of involvement.
 Management and Control: In an LP, general partners have the authority and
responsibility for managing the partnership, while limited partners are typically
passive investors. In an LLP, all partners can actively participate in managing the
business.
 Flexibility: LPs often have more flexibility in terms of the partnership agreement and
decision-making, as the general partners have greater control. LLPs generally require
more formalities and may have stricter governance requirements.

What is the difference between a LLP and General Partnership?

A Limited Liability Partnership (LLP) and a General Partnership are both forms of business
partnerships, but they have some key differences in terms of liability, management, and legal
structure. Here are the main distinctions between the two:
Liability:
 General Partnership: In a general partnership, all partners have unlimited personal
liability for the debts and obligations of the partnership. This means that if the
partnership incurs debts or faces legal issues, each partner's personal assets can be at
risk to settle those liabilities.
 Limited Liability Partnership (LLP): In an LLP, partners have limited personal
liability for the partnership's debts and obligations. Each partner is protected from the
actions of other partners and is not personally liable for the wrongful acts, negligence,
or misconduct of other partners. However, partners remain personally liable for their
own actions and debts.
Legal Structure:

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  General Partnership: A general partnership is a relatively simple and informal
business structure. It is typically formed by an oral or written agreement between the
partners without the need for formal registration with the government.
 Limited Liability Partnership (LLP): An LLP is a more formalized business structure
that requires registration with the appropriate government authorities. It provides a
separate legal entity for the partnership, distinct from its partners.
Management:
 General Partnership: In a general partnership, partners usually have equal rights in the
management and decision-making process unless otherwise specified in the
partnership agreement.
 Limited Liability Partnership (LLP): An LLP allows more flexibility in the
management structure. Partners can choose to manage the business collectively or
designate specific partners to manage the LLP's affairs.
Transferability of Ownership:
 General Partnership: Ownership interests in a general partnership can be challenging
to transfer as all partners are jointly responsible for the partnership's debts and
obligations. Any transfer of partnership interest requires the consent of all partners.
 Limited Liability Partnership (LLP): In an LLP, ownership interests can often be
transferred more easily, depending on the provisions outlined in the partnership
agreement. However, the new partner may need to be admitted into the LLP by
unanimous consent or as per the terms of the agreement.
Perpetual Existence:
 General Partnership: A general partnership may dissolve upon the death, withdrawal,
or bankruptcy of any partner unless the partnership agreement provides for its
continuation.
 Limited Liability Partnership (LLP): An LLP can have perpetual existence, meaning it
can continue to operate even if a partner leaves or passes away, as long as the
remaining partners agree.

What are the advantages of a Limited Liability Partnership (LLP)?

 Separate Legal Existence: The LLP exists as a separate legal entity, providing a
distinction between the partnership and its partners. This separation helps protect the
personal assets of the partners from the liabilities of the LLP.
 Limited Liability: Partners enjoy limited liability, limiting their personal liability to their
financial contributions to the LLP. This protects their personal assets from the debts and
obligations of the partnership.
 Separate Ownership and Management: LLPs allow for a clear distinction between
contributing partners and general partners who manage and control the LLP. This
separation can enhance efficiency in decision-making and operations.
 Privacy: Unlike companies, LLPs often have less stringent reporting and disclosure
requirements, providing more privacy for the partners and the business's financial affairs.
 Tax Efficiency: LLPs are generally treated as pass-through entities for tax purposes. This
means that the LLP itself does not pay taxes, and profits or losses pass through to
individual partners, who are responsible for reporting them on their personal tax returns.
 Flexibility: LLPs combine the benefits of limited liability companies with the flexibility
and simplicity of a partnership structure, making them an attractive option for small to
medium-sized businesses.

What are the disadvantages of a Limited Liability Partnership (LLP)?

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 Costly and Complex Formation: Setting up and registering an LLP can be more
expensive and complex compared to a general partnership or other business structures.
 Detailed Partnership Agreement: Forming an LLP requires a comprehensive and well-
drafted partnership agreement to govern the rights, responsibilities, and profit-sharing
arrangements among the partners. This process may require more diligence and
professional assistance.
 Reporting Requirements: While LLPs may have less stringent reporting requirements
than companies, they are still subject to certain filing obligations with the relevant
registrar, which can involve additional administrative tasks and costs.
 Limited Legal Precedent: LLPs are a relatively newer form of business structure in
many jurisdictions, and as such, there may be limited legal precedent or case law to rely
on, which could lead to uncertainties in certain situations.
 Personal Liability for Wrongful Acts: While LLPs provide limited liability protection
for business debts, partners may still be personally liable for their own wrongful acts or
negligence.

Agency

What is agency?

Agency is a relationship where one person, known as the principal, appoints another person,
known as an agent, to act on their behalf in specific transactions. These transactions can
include making contracts, initiating legal actions, conveying property, or exercising
proprietary rights under a power of attorney.
In this relationship, the principal is bound by the acts of the agent that fall within the scope of
the authority granted by the principal. To ensure clarity and validity, it is essential to have a
written agency agreement that outlines the terms, responsibilities, and rights of both parties,
similar to a partnership deed in a partnership. The agency agreement must meet the essential
requirements of a valid contract to be legally binding.

How do the principles of a valid contract apply to agency?

The principles of a valid contract also apply to agency agreements. When parties establish an
agency relationship, they engage in a contractual arrangement. Here's how the principles of a
valid contract apply:
 Offer: The principal makes an offer to the agent, appointing them to act on their behalf in
specific transactions, such as selling a piece of land.
 Acceptance: The agent accepts the offer and agrees to act as the representative of the
principal in the specified transactions.
 Consideration: The consideration in an agency agreement is the reward or compensation
the agent will receive for their services. For example, the agent may receive a percentage
of the sale price of the land if they find a buyer within a specified time frame.
 Intention to Create Legal Relations: Both the principal and the agent must intend to
enter into a legally binding relationship, indicating their seriousness and commitment to
the agency arrangement.
 Capacity: The parties involved in the agency agreement must have the legal capacity to
enter into contracts. For instance, they must be of sound mind and not minors.
 Free Consent: Both parties must freely and willingly consent to the terms of the agency
agreement without any duress or coercion.

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 Legal Object: The agency agreement's purpose and the transactions the agent will
undertake on behalf of the principal must be legal and not contrary to law or public
policy.
 Certainty: The terms of the agency agreement must be clear, definite, and specific to
avoid ambiguity or misunderstandings.
 Must be in writing
 Attested by a witness for each party
 Must be an intention to be legally bound

What are the types of Agency Relationships?

Del Credere Agent:

 In this type of agency relationship, the agent guarantees the performance of a third
party's contractual obligations to the principal in addition to their intermediary role.
 The agent acts as an intermediary between a buyer and a seller, ensuring that potential
buyers are introduced to the seller, and for an additional fee, the agent guarantees that
the transaction will go through.
Confirming Agent:
 In a confirming agency relationship, the agent guarantees to the third party (buyer)
that the principal (seller) will fulfill their contractual obligations.
 The agent provides assurance to the buyer that the transaction will be consummated,
even if it requires paying a higher agency fee.
Agent of Necessity:
 This type of agency relationship has evolved historically through commercial practice
and usage.
 An agent of necessity acts in situations where there is an emergency or unforeseen
circumstances, and it becomes necessary for someone to act on behalf of another to
protect their interests.
Mercantile Agent:
 In a mercantile agency relationship, the agent has implied authority to sell all goods in
their possession in the ordinary course of their business as a bailee or otherwise.
 The mercantile agent can pass good title to a bona fide purchaser for value without
notice of any defect of title, even if there is no express authority from the principal.
What is the capacity of agents in the agency?

Generally Equivalent to Principal's Capacity:

 As a general rule, an agent has the capacity to do on behalf of the principal whatever
the principal can do for themselves. This means that an agent can perform actions,
make decisions, and enter into contracts on behalf of the principal.

Limitations on Agent's Capacity:

 There are certain limitations to the general rule, and these limitations may be specified
in the agency agreement or the contract between the principal and the agent.
 For example, the contract may explicitly prevent the agent from carrying out certain
duties or actions that are reserved for the principal personally.

Basic Requirements of Agent's Capacity:

 To act as an agent, a person or organization must possess certain basic capacities: a)
Age: The agent must be of legal age to enter into an agency relationship. This usually
means being above the age of majority, which varies by jurisdiction. b) Mental

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 Capacity: The agent must be of sound mind and capable of understanding the
responsibilities and actions they undertake on behalf of the principal. c) Professional
Capacity: In certain cases, an agent's capacity may also include professional
qualifications or licenses. For example, when an advocate represents a client in court,
they must have the capacity to practice law before the superior courts.
Example: Advocates as Agents:
 Advocates often act as agents on behalf of their clients. When a client approaches an
advocate to represent them in a legal matter, the client becomes the principal in that
matter, and the advocate acts as their agent.
 For the advocate to act as an agent, they must have the capacity to appear before the
superior courts. This means the advocate must be a registered and qualified legal
professional.

How is an agency relationship created?

An Agency Relationship can be created through various means, including:

Express Appointment:
 The most common and straightforward way of creating an agency relationship is
through an express appointment. In this case, the principal specifically appoints the
agent to act on their behalf, and the terms and scope of the agency are defined in a
written or verbal agreement between the principal and the agent.

Agency by Ratification:
 Sometimes, an agent may act without authority or in excess of their authority. If the
principal later approves or ratifies the agent's actions, the agency relationship is created
by ratification. The principal accepts and adopts the contract or actions performed by the
agent on their behalf, making it legally binding.

Implied Agency:
 An agency relationship may be implied from the conduct of the parties or based on the
circumstances of the situation. This may happen when the principal's actions or behavior
indicate that they have appointed the agent to act on their behalf, even if there is no
express agreement.

Agency by Operation of Law:

 In certain situations, the law may confer authority on an agent to act in an emergency or
necessity to protect the principal's property or interests. This type of agency, known as
"agency of necessity" or "agency by operation of law," arises without an express
appointment and is based on the genuine emergency or necessity of the situation.

In summary, an agency relationship is typically created through an express appointment,

where the principal specifically designates an agent to act on their behalf. However, agency
relationships can also be formed by ratification, implied from the parties' conduct, or by
operation of law in emergency situations. The creation of an agency relationship may be in
writing or verbal, and the terms and scope of the agency should be clearly defined to avoid
misunderstandings and disputes in the future.

Explain the relationship between an agent and a principle

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The relationship between an agent and a principal is a business relationship based on trust
and fiduciary duties. The agent is appointed by the principal to act on their behalf, and the
terms and scope of the relationship are usually set out in an agency agreement. The rights and
duties of both parties are defined in this agreement, but additional duties may also be implied
by law if not explicitly stated.
Duties of the Agent:
Duties under Contract:
 The agent must fulfill their obligations with reasonable care and diligence as per the
agreement and the principal's instructions.
 The agent must strictly follow the principal's instructions and not deviate from them,
unless the instructions are unlawful.
 If the principal's instructions allow for discretion in performance, the agent must
exercise their judgment in good faith and in the principal's interests.
 The agent must carry out the principal's instructions promptly and communicate all
material information to the principal.
Fiduciary Duties:
 The agent must avoid conflicts of interest and always put the principal's interests
ahead of their own.
 The agent must not accept improper payments or engage in bribery.
 The agent must keep accurate accounts of their dealings on the principal's behalf and
must disclose fully all material facts that may affect the principal's judgment.
Duties of the Principal:
Reimbursement and Indemnity:
 The principal must reimburse the agent for all expenses and indemnify them against
all liabilities incurred in the reasonable performance of the agency.
 The agent is not entitled to reimbursement or indemnity if they acted outside the
scope of their authority without ratification, incurred the liability due to their own
fault or negligence, or engaged in transactions in breach of criminal law or public
policy.
Lien:
 The agent has a lien over the principal's goods and chattels for claims arising from the
agency.
 The goods must be in the possession of the agent, and the lien applies to the same
agency under which the agent claims the lien.
Remuneration:
 The principal must pay remuneration to the agent, usually in the form of a
commission.
 The manner, quantum, and mode of payment are usually defined in the agency
agreement.
 If the agreement does not specify the remuneration, a term to pay reasonable
remuneration may be implied.
 The agent may be disentitled to commission in certain situations, such as acting in
excess of authority without ratification, showing bad faith or wilful misconduct, or
causing a transaction to fail due to a breach of duty.

Overall, the relationship between an agent and a principal requires trust, honesty, and
compliance with the agreed terms and fiduciary duties. It is essential for both parties to act in
good faith and in the best interests of each other to ensure a successful agency relationship.

Who is a fiduciary?

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 There isn't a comprehensive list of relationships which give rise to the existence of
fiduciary duties under common law.
 Some relationships are automatically fiduciary in nature, e.g. that of advocate and client,
or co-partners in a partnership. Other relationships will be fiduciary in nature if the parties
have agreed that that type of relationship has arisen e.g. a director towards a company.
 A fiduciary relationship is one in which there is an obligation of loyalty.

What are the duties of a fiduciary?

 No conflict: a fiduciary must not put himself in a position of actual or potential
conflict with the interests of the person to whom he is a fiduciary, without express
consent.
 No profit: A fiduciary must not derive personal profit from his position as a
fiduciary.
 Confidentiality: A fiduciary owes a duty of confidentiality in relation to information
received by him during the subsistence of the fiduciary relationship.

How is an agency relationship terminated?

An agency relationship can be terminated in two main ways: by the act of the parties or by
operation of law.
Termination by Act of the Parties:
 Mutual Agreement: The agency relationship can be terminated by mutual agreement
between the principal and the agent. Both parties agree to end the agency relationship,
and this agreement should be recorded in writing for clarity and future reference.
 Renunciation by the Agent: The agent can terminate the agency relationship by
renouncing their authority. This means the agent voluntarily declares that they no
longer represent the principal in the matter.
 Revocation by the Principal: The principal can revoke the agent's authority and
terminate the agency relationship by notifying the agent in writing that their authority
is withdrawn. Again, this revocation should be communicated in writing to avoid any
misunderstandings.
In all of these cases, it is essential that the termination of the agency relationship is
documented in writing to provide evidence and clarity about the parties' intentions.
Termination by Operation of Law:
 Completion of the Transaction: The agency relationship may terminate when the
purpose or transaction for which the agent was employed has been completed. Once
the deal is finalized or the task is accomplished, the agency relationship may naturally
come to an end.
 Expiry of Duration: If the agency relationship was established for a specific period, it
automatically terminates upon the expiry of that period. For example, if the principal
appointed the agent for a fixed term of three months, the agency ends when the three
months have passed.
 Event Making the Agency Unlawful: The agency relationship may be terminated if an
event occurs that renders the agency unlawful or unenforceable. For instance, if the
subject matter of the contract becomes illegal or is destroyed, the agency may no
longer be valid.
 Death, Insanity, or Bankruptcy: The agency relationship is terminated upon the death,
insanity, or bankruptcy of either the principal or the agent. In such cases, the agency
cannot continue as the parties are no longer capable of fulfilling their roles.

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In conclusion, an agency relationship can be terminated either by the parties' agreement,
which should be in writing, or by the operation of law due to specific circumstances or
events.

Distributorship

Why is distribution is common in Kenya's economy?

Kenya's economy is primarily focused on commercial activities rather than heavy

manufacturing. Distribution is prevalent as it allows manufacturers to connect with the
market effectively.

Who is a distributor?
A distributor buys products from a manufacturer and sells them to end consumers at a
markup. The distributor becomes the principal with a contractual relationship with the
customers.

What is the relationship between agent and distributor?

Both agent and distributor are channels to the market, connecting manufacturers with
customers. The key difference is that the distributor takes ownership of the products and
contracts with customers as a principal, while an agent acts as an intermediary and does not
own the products.

What is the Markup for distributors?

The markup is the distributor's reward and is added to the manufacturer's sale price. It
represents the distributor's profit.

How do you differentiate agency and distributorship models?

In a distributorship model, there are two sales transactions: the sale from the manufacturer to
the distributor, and the sale from the distributor to the end consumer. In an agency model,
there is only one sale between the principal and the end customer, with the agent receiving a
commission.

What are the salient aspects of a distribution agreement?

The distribution agreement will cover definitions, appointment of the distributor, supply of
products, payment terms, marketing, support and training, intellectual property,
confidentiality, warranties, force majeure, duration, termination, nature of agreement,
arbitration, notices, and service.

What are the consequences of termination of a distributorship agreement?

Upon termination of the agreement, unpaid stock and ownership of products become key
considerations. The distributor may still owe money to the manufacturer if credit terms were
agreed upon. The distributor might continue selling the products they own, or the
international organization may appoint another distributor for specific customers.

Explain the concept of exclusivity in distributorship

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 Exclusivity is when a distributor has the sole right to sell the manufacturer's products in a
given territory. It can be contentious, as competition laws may frown upon it. A middle
ground is often reached, where the distributor is appointed as a non-exclusive distributor, and
the international organization commits not to appoint another distributor if key performance
indicators are met.

Give a domparison between Agency and Distribution:

Sells on behalf of:
 Agency: The agent sells on behalf of the principal.
 Distribution: The distributor sells on their own behalf.
Sells in whose name:
 Agency: The agent usually sells in the name of the principal, but sometimes may sell
in their own name without disclosing the principal's identity.
 Distribution: The distributor sells in their own name.
Exclusivity:
 Agency: Agency agreements may include exclusivity clauses, but it should be
considered in light of competition law.
 Distribution: Distributorship agreements may also contain exclusivity clauses, but
compliance with competition law is essential.
Sole agent/distributor:
 Agency: Agency agreements may include sole agent clauses, but consideration should
be given to competition law.
 Distribution: Distributorship agreements may include sole distributor clauses, but
compliance with competition law is essential.
Payment for services:
 Agency: The agent is compensated through commissions, fixed fees, or other forms of
recompense.
 Distribution: The distributor earns profit on the sale of goods or services purchased
from the manufacturer, often receiving discounted prices expressed as commission or
rebate.
Contractual relationship with customers:
 Agency: The agent has a contractual relationship with the customers on behalf of the
principal.
 Distribution: The distributor has a direct contractual relationship with the customers.
Business relationship with customers:
 Agency: The agent maintains a business relationship with customers and may have a
strong influence as an intermediary.
 Distribution: The distributor has a business relationship with customers, and the
manufacturer usually has minimal or no direct contact with them.
Responsibility for pricing and terms of business:
 Agency: The principal retains control over pricing and terms of business.
 Distribution: The distributor usually has control over pricing and, to some extent,
other terms.
Risk of unsold products:
 Agency: The risk of unsold products lies with the principal.
 Distribution: The risk of unsold products falls on the distributor.
Liability for defective products:
 Agency: The principal is primarily liable for defective products.

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  Distribution: The distributor may bear liability for defective products, but they often
seek indemnity from the manufacturer for certain risks and defects. Legislation may
impose liability on the manufacturer as well, such as under the Competition Act.

When would agency be preferable to a distributorship?

When would agency be preferable to a distributorship?

Agency may be preferable over a distributorship in the following instances:
 When the manufacturer wants to retain control of certain customer relationships,
especially for major customers like governments or international organizations.
 When the manufacturer wants to retain control of the channel to market.
 When the manufacturer wants to manage costs more effectively since agency
commissions are typically lower than distributor markups.
 When the manufacturer wants to avoid a taxable presence or permanent establishment in
the distributor's jurisdiction, as distributorship may create tax liabilities.

When would a distributorship be preferable to agency ?

Distributorship may be preferable over agency in the following situations:

 To transfer sales risk to the distributor: If the manufacturer wants to reduce its sales
risk and secure a certain market size, it can enter into a distributorship agreement with
a trusted distributor who will buy and sell the products in their own name. This way,
the distributor takes on the responsibility of finding customers and ensuring sales.
 To navigate a new or unfamiliar market: When entering a market with unique
characteristics and buyer habits, the distributor's local expertise and established
infrastructure can help the manufacturer minimize risks and adapt to market
peculiarities.
 To leverage the distributor's infrastructure and reputation: Instead of building their
own infrastructure from scratch, the manufacturer can partner with an experienced
distributor who already has an established sales team, logistics network, and a
recognized brand name. This can help the manufacturer quickly penetrate the market
and reach customers effectively.
 To avoid creating a taxable presence in the distributor's jurisdiction: By appointing a
distributor, the manufacturer can sell its products to the distributor at an arm's length
price, ensuring a clear separation between the international company and the local
distributor. This can help the manufacturer avoid tax liabilities and complications
associated with a taxable presence in the distributor's country.
In these scenarios, distributorship offers the advantage of risk-sharing, market knowledge,
existing infrastructure, and tax efficiency, making it a preferable choice for market entry and
expansion.

Explain market risk in distributorship

Market risk in distributorship refers to the potential financial losses and challenges that
distributors face due to fluctuations in demand and changes in the market for the products
they have purchased from the manufacturer. Several factors contribute to this risk:
 Unsold Products: As the distributor buys the products from the manufacturer, they
incur upfront costs to acquire the goods. If they fail to sell these products within a
reasonable timeframe, they may be left with excess inventory, leading to financial
losses and tying up capital.

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  Risk of Obsolescence: The distributor may face the risk of products becoming less
desirable or outdated over time. In markets where consumer preferences change
rapidly or technological advancements occur, the distributor might struggle to sell
outdated products, leading to potential losses.
 Liability for Defective Products: When distributing products, the title and ownership
transfer to the distributor. Therefore, if a product is defective and leads to customer
complaints or lawsuits, the distributor bears the responsibility for handling such
claims. They may lack the technical knowledge of the product's internal mechanisms,
making it challenging for them to address such issues effectively.

To mitigate these risks, distributors often seek warranties or indemnities from the
manufacturer. A warranty is a guarantee from the manufacturer that the product meets certain
quality standards, and if defects are discovered, the manufacturer will be responsible for
addressing them. An indemnity is a promise from the manufacturer to compensate the
distributor for any losses or liabilities arising from defective products.

Franchise

What is a franchise?
Franchising is an arrangement where one party grants specified rights, including the use of a
name, trademark, and business method, to another party in exchange for a fee. The franchisee
gains the license to use the franchisor's business model for a specified period and pays a
royalty for it.

What is the role of the franchisor?

The franchisor oversees and supports the franchisee's use of the business method. They
provide training, supervision, and other assistance like marketing to help the franchisee run
the franchise successfully.

Where is franchising commonly used?

Franchising is commonly used in industries such as fast food (e.g., Pizza Hut, KFC),
leisure/hospitality (e.g., Kempinski, InterContinental), and retail (e.g., H&M, Marks &
Spencer).

Why are franchises used?

Franchising allows businesses to expand with limited investment by establishing a uniform
network for product distribution. It helps reduce costs and risks while enabling growth
through partnerships with local operators.

How does the petroleum sector work in franchising matters?

In the petroleum sector, companies like Shell and Total use distributorship agreements rather
than traditional franchises. These agreements involve distributors or dealers who distribute
the products to end-users, and they are not liable for the franchisee's actions.

What are the risks of a franchise?

The risks of a franchise include the franchisee being lazy, dishonest, or unethical. However,
these risks are balanced against the potential to make money.

Does the franchisor take liability for the franchisee in lawsuits?

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No, the franchisor is typically not liable for lawsuits brought against the franchisee. The
franchisee is an independent entity responsible for its actions and liabilities.

What is the difference between retail and franchising?

Franchising is a way to obtain a retail shop. Retail refers to the act of selling products directly
to individual consumers.

How would you categorize Airbnb?

Airbnb functions as an agency, intermediating between individuals who offer
accommodations (hosts) and those seeking accommodations (guests).

What is the difference between franchising and a joint venture?

Franchising involves one party granting specified rights to another party for a fee. A joint
venture is a collaboration between two or more parties to achieve a common commercial
objective.

Could you have a joint venture that then executes a franchise?

Joint ventures and franchises serve different commercial purposes, so they are not typically
combined in a single arrangement.

Where is franchising commonly used?

Franchising is commonly used by successful businesses that want to expand or enter new
markets without significant upfront investment.

What types of franchise setups could exist?

Franchise setups can include industrial (manufacturing), distribution, service, and wholesale
franchises.

What are the steps to identify a franchising relationship?

Look for elements like the use of the franchisor's name, intellectual property, control over
operations, and provision of commercial or technical assistance, along with royalty payments
to identify a franchising relationship.

What are the salient aspects of a franchise agreement?

Key aspects of a franchise agreement include parties involved, grant of rights, exclusivity,
territory, term, description of key performance indicators (KPIs), fees/royalty, warranties,
limitation of liability, and standard contractual terms.

Companies

What is the definition of a company in Kenya?

The exact scope of company law is difficult to define in Kenya because the laws do not
explicitly define the term "company." However, according to Section 3(1) of the Companies
Act 2015, a company is referred to as "A company formed and registered under this Act or an
existing company." This definition only describes a registered company, i.e., a company
incorporated by registration. However, it does not identify the specific attributes of a
company and fails to distinguish it from a partnership.
In common law, a company is considered a "legal person" or "legal entity" separate from its
members, capable of surviving beyond the lives of its members. As a legal person, a company
has its own rights and duties and has the potential for perpetual succession. Additionally, a

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company is not merely a legal institution; it is also a legal device for achieving social or
economic goals and carries public and social responsibilities.

What are the two fundamental principles of company law?

The two fundamental principles of company law are:

Legal or Corporate Personality: When a company is incorporated or registered, it becomes

a legal person or body corporate with distinct rights and obligations separate from its
members and managers. This principle was established in the landmark case of Salomon v
Salomon & Co Ltd. (1897), where it was recognized that the company is a separate legal
entity from its shareholders. As a legal person, a company can enter into contracts, own
property, sue or be sued, and conduct business in its own name.

Theory of Limited Liability: The theory of limited liability refers to the extent to which a
member of the company may be held responsible to contribute to the company's assets in the
event of insolvency or liquidation. In limited liability companies, the liability of members is
limited to the amount (if any) unpaid on their shares or the amount they have undertaken to
pay in case of insolvency. This means that the personal assets of the members are protected,
and they are not personally liable for the company's debts beyond their contributions to the
company's capital.

How can companies/corporations be classified?

Companies or corporations can be classified based on various criteria:

Corporation Sole: A corporation sole is a legally established office that is distinct from the
officeholder and can only be occupied by one person. When the officeholder's term ends,
they are succeeded by another person. Examples include the archbishop of the Anglican
Church of Kenya, the Cabinet Secretary of the National Treasury, and the President of
Kenya.

Corporation Aggregate: A corporation aggregate is a legal entity formed by two or more

persons for a lawful purpose, and its membership consists of at least two persons.

Statutory Corporations: These are corporations created by Acts of Parliament or an order of

the President, following the provisions of the State Corporations Act. Statutory corporations
have no shareholders, and their initial capital is provided by the government treasury. An
example is the Kenya Revenue Authority.

Chartered Corporations: These are corporations created by a charter granted by the

relevant authority, historically by the crown. Today, it could be granted by the President, such
as a university charter.

Registered Corporations: These are corporations formed in accordance with the provisions
of the Companies Act 2015.

What is the classification of companies under the Companies Act?

Limited Companies:
 Companies Limited by Shares: The liability of the members is limited to the amount
unpaid on their shares.

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 Companies Limited by Guarantee: The liability of the members is limited to the amount
they have undertaken to contribute in the event of insolvency.
Unlimited Companies:
 In an unlimited company, there is no limit on the liability of the members, and they may
be called upon to contribute to the company's assets in the event of insolvency.
Private Companies:
 These companies are restricted in their ability to transfer shares and have limitations on
the number of members.
Public Companies:
 Public companies can freely transfer shares, and there is no limit on the number of
members.
Foreign Companies:
 These are companies incorporated outside of Kenya but operate within the country.
Subsidiaries:
 Subsidiaries are companies controlled by another company, known as the parent
company.
Group Companies:
 Group companies refer to a collection of parent and subsidiary companies that are linked
through common control.
Holding Companies:
 Holding companies are entities that control other companies through ownership of their
shares.

What is a private company?

A private company is a type of company defined under Section 9 of the Companies Act. It
possesses certain characteristics and limitations that differentiate it from public companies.
To be classified as a private company, it must meet the following criteria:
 Its articles of association restrict a member's right to transfer shares.
 The number of members is limited to fifty or less.
 The company's articles prohibit invitations to the public to subscribe for shares or
debentures of the company.
 The consent of all existing members is required to add a new member.
 It is not a company limited by guarantee.
 Its certificate of incorporation explicitly states that it is a private company.

What are the key Features of a Private Company?

 Limited Liability: Private companies are limited by shares, which means the liability
of directors and members is limited to the extent of the shares they own. In case of
liquidation, their liability is confined to the value of their shares.
 Limited Number of Members: Private companies are restricted to a maximum of fifty
members, excluding employees who are also shareholders.
 Restricted Share Transfer: The transfer of shares in a private company requires the
consent of all members. Unlike public companies, shares cannot be freely traded on
the stock exchange.
 Prohibition on Public Offers: Private companies cannot make public offers of their
shares or debentures. They cannot invite the public to subscribe to their securities.

What are the limitations of a Private Company?

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  Share Transfer Restrictions: Shareholders of a private company cannot freely
transfer their shares without the approval of all other shareholders. This restriction can
make it challenging for shareholders to exit or sell their shares.
 Limited Number of Members: The maximum limit of fifty members can restrict
the company's ability to raise capital and expand its ownership base.
 Lack of Public Capital: Private companies cannot access the public capital markets
through IPOs (Initial Public Offerings) or public share offerings. This may limit their
ability to raise significant capital compared to public companies.
 Limited Scope for Growth: Due to the capped number of members and the lack of
public offers, private companies might face limitations in their growth and expansion
prospects.
 Less Stringent Reporting Requirements: While this may be seen as an advantage to
some, the less stringent reporting requirements for private companies might lead to
reduced transparency and oversight, potentially affecting investor confidence.

Overall, private companies offer benefits in terms of limited liability and more operational
privacy, but they also have specific restrictions that can influence their growth and exit
strategies for shareholders.

What is a public company?

A public company is a type of company defined under Section 10 of the Companies Act. It
stands in contrast to a private company and has specific characteristics and features that
distinguish it from private companies. To be classified as a public company, it must meet the
following criteria:
 The right to transfer shares is unrestricted: Members of a public company can freely
transfer their shares among themselves and to third parties without any restrictions.
 Its articles of association allow its members the right to transfer their shares in the
company.
 Its articles do not prohibit invitations to the public to subscribe for shares or debentures
(securities) of the company.
 The company's certificate of incorporation explicitly states that it is a public company.

What are the key features of a Public Company?

 Unrestricted Share Transfer: Unlike private companies, where share transfers are
subject to restrictions and require the consent of all members, public companies allow
free and unrestricted transfer of shares.
 Ability to Invite Public Investment: Public companies have the advantage of inviting
members of the public to subscribe for their shares through public offers or initial public
offerings (IPOs). This facilitates the raising of significant capital from the public.
 Potential for Wider Ownership: Public companies have the potential for a large
number of shareholders, leading to wider ownership and distribution of shares.
 Greater Access to Capital: Public companies can access the public capital markets for
fundraising, which provides them with greater opportunities for expansion and growth.
 Public Disclosure and Transparency: Public companies are subject to more stringent
reporting requirements, which enhances transparency and provides investors with access
to information about the company's performance and financial health.

What are the limitations of a Public Company?

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  Stringent Regulatory Requirements: Public companies are subject to more extensive
regulatory compliance, including financial reporting, shareholder disclosures, and
corporate governance standards.
 Loss of Control: As the ownership of shares becomes more dispersed among the
public, the founding shareholders may experience a dilution of control over the
company.
 Share Price Volatility: The shares of public companies are traded on stock exchanges,
making their prices subject to market fluctuations and investor sentiment.
 Public Scrutiny: Public companies are under constant scrutiny from investors, analysts,
and the media, which can put pressure on management to deliver consistent results.
 Costly IPO Process: Going public through an IPO can be a costly and time-consuming
process, involving legal, financial, and regulatory expenses.
Overall, public companies offer the advantages of easier access to capital and potential for
wider ownership, but they are also subject to more rigorous regulatory requirements and
increased public scrutiny. Founders and shareholders of public companies must carefully
consider the trade-offs and implications before deciding to go public.

What is a Company Limited by Guarantee?

A Company Limited by Guarantee is a specific type of company that is formed with the
primary purpose of providing financial guarantees in the event of the company's insolvency.
Unlike companies limited by shares, where members' liability is limited to the value of their
shares, in a company limited by guarantee, the members pledge to personally contribute a
predetermined amount in case the company faces financial difficulties.

What are the key Features of a Company Limited by Guarantee?

 Guarantees by Members: The members of a company limited by guarantee commit to
contributing a specified amount to the company's liabilities in the event of insolvency.
This amount is predetermined and stated in the company's constitution.
 Non-Share Capital Structure: Unlike other types of companies that have share capital,
a company limited by guarantee does not have shares. Instead, its constitution specifies
the amount each member guarantees to contribute if needed.
 Not-for-Profit Nature: Companies limited by guarantee are often formed for non-profit
or charitable purposes. They are commonly used by nonprofit organizations, charities,
clubs, associations, and community groups.
 Legal Entity with Limited Liability: Although the company is a legal entity, the
personal liability of the members is limited to the predetermined guarantee amount they
have pledged to contribute.
 Membership and Decision-Making: Similar to other types of companies, a company
limited by guarantee has members who participate in decision-making through voting
and may appoint directors or trustees to manage the company.

What are the limitations of a Company Limited by Guarantee?

 Limited Capital Raising: Companies limited by guarantee may face challenges in
raising capital compared to companies with share capital. Since there are no shares to
sell, raising funds may rely on donations, grants, or membership fees.
 Regulatory Compliance: Non-profit organizations and companies limited by guarantee
must comply with specific regulations and reporting requirements applicable to their
not-for-profit status.

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  Membership Constraints: The number of members in a company limited by guarantee
may be limited, depending on its constitution. This could impact the organization's
ability to attract support and participation.
 Personal Liability: The members' personal liability, though limited to the
predetermined guarantee amount, still represents a financial commitment that members
should consider carefully before joining such a company.
 Insolvency Risk: In case the company faces financial distress or insolvency, the
members' personal guarantees come into play, and they may need to contribute the
pledged amounts to address the company's liabilities.
Overall, a Company Limited by Guarantee is a suitable legal structure for non-profit
organizations and charitable entities, but it requires careful consideration of its unique
features and limitations before its formation. It provides a mechanism for members to
contribute personally to the organization's financial stability while limiting their liability to a
predetermined amount.

What is a Foreign Company?

A foreign company, in the context of Kenyan law, refers to a company that is originally
registered or incorporated outside Kenya but establishes a branch or place of business within
the country. When a foreign company establishes a presence in Kenya, it is required to
register its branch with the Kenyan authorities.

What are the Key Features of a Foreign Company?

 Branch Registration: A foreign company that intends to operate in Kenya must register
its branch or place of business in the country. This branch registration allows the foreign
company to conduct business activities in Kenya under the laws and regulations
applicable to foreign entities.
 Certificate of Compliance: Instead of receiving a certificate of registration like locally
incorporated companies, foreign companies operating in Kenya are issued a certificate
of compliance upon successful registration of their branch. This certificate confirms that
the foreign company has complied with the necessary legal requirements to operate
within the country.
 Appointment of Compliance Officer: To ensure compliance with Kenyan laws, the
Companies Act requires foreign companies to appoint a compliance officer who will act
as the point of contact between the foreign company and the Registrar of Companies.
This compliance officer, who must be a Kenyan citizen, will be responsible for
conveying any directives or requirements issued by the Registrar to the foreign
company.
 Shareholding by Kenyan Citizens: To foster local representation and understanding of
Kenyan laws, the Companies Act stipulates that at least 10% of the shareholding in the
foreign company's Kenyan branch must be held by Kenyan citizens. This requirement
ensures that Kenyan nationals have a vested interest in guiding the foreign company on
local compliance matters.

What are the Limitations of a Foreign Company?

 Restricted Business Activities: A foreign company's branch in Kenya is limited to
engaging in the specific activities authorized by its parent company. It cannot conduct
activities beyond the scope defined by its parent company's constitution or registration
documents.

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  Compliance Obligations: Foreign companies must adhere to Kenyan laws and
regulations applicable to their business activities in Kenya. Failure to comply with these
requirements can lead to penalties or other legal consequences.
 Limited Liability: The liability of the foreign company's branch extends to the assets of
the parent company. This means that if the branch incurs debts or liabilities, the parent
company's assets may be exposed to satisfy those obligations.
 Reporting and Disclosure Requirements: Foreign companies operating in Kenya must
comply with reporting and disclosure requirements, providing information to the
Registrar of Companies as required by Kenyan law.

Overall, foreign companies operating in Kenya through a registered branch enjoy the
opportunity to conduct business in the country, but they must ensure compliance with local
laws and regulations and establish a meaningful presence with local shareholders and a
compliance officer to facilitate smooth operations and adherence to Kenyan legal obligations.

When is a Company Secretary required?

Companies in Kenya with a share capital of 5 million Kenyan Shillings or more are required
to have a company secretary. The company secretary is an important position responsible for
ensuring compliance with legal and regulatory requirements and facilitating smooth corporate
governance.

What happens when there's a changing Business Name?

If a company wishes to change its business name, it must register a deed poll to indicate the
new name the company will adopt. This change will be gazetted in newspapers to inform the
public about the new name. This process ensures transparency and awareness of the updated
company name among stakeholders and the public.

What is a Limited Company?

A limited company, as defined in the Companies Act, is a type of company that offers limited
liability protection to its members. It can be of two types: companies limited by shares and
companies limited by guarantee.

What are the Key Features of Limited Companies?

Limited Liability: The primary feature of a limited company is that it provides limited
liability protection to its members. In both types of limited companies, the personal liability
of the members is limited to a specified amount.

Companies Limited by Shares: In such companies, the liability of the members is limited to
the amount unpaid on the shares they hold. If the company faces financial difficulties or goes
into liquidation, members are liable only for the unpaid portion of their shares.
b) Companies Limited by Guarantee: In these companies, there is no share capital. Instead,
members give a guarantee to contribute a specific amount to the company's assets in the event
of liquidation. Their liability is limited to the amount they have undertaken to contribute.

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Separate Legal Entity: A limited company is considered a separate legal entity from its
members. This means the company can enter into contracts, own property, and sue or be sued
in its own name.

Perpetual Succession: Being a separate legal entity, a limited company enjoys perpetual
succession. Its existence is not dependent on the lives of its members, and it can continue to
operate even if its original members change.

Transferable Ownership: In companies limited by shares, the ownership is represented by

shares that can be bought and sold, allowing for the transfer of ownership among members.

Shareholders and Guarantors: Limited companies have shareholders (in the case of
companies limited by shares) or guarantors (in the case of companies limited by guarantee)
who contribute to the company's capital or guarantee the company's liabilities.

What are the Limitations of Limited Companies?

Compliance Requirements: Limited companies are subject to various compliance

requirements, including filing annual returns, maintaining proper accounting records, and
adhering to corporate governance standards. Failure to meet these requirements can lead to
penalties or legal consequences.

Public Disclosure: Limited companies are required to make certain information publicly
available, such as their financial statements and certain company details. This level of
transparency may not be desirable for some businesses that prefer to keep their affairs
private.

Limited Personal Control: In companies limited by shares, the ownership of shares may
become dispersed among multiple shareholders, resulting in limited personal control for each
shareholder. This may impact decision-making power and control over the company's
direction.

Limited Liability Not Absolute: While limited liability protects members from being
personally liable for the company's debts, there are circumstances (e.g., fraudulent activities)
where the limited liability protection may be lifted, and members could be held personally
responsible.
Overall, limited companies offer various benefits, such as limited liability and perpetual
succession, but they also come with compliance obligations and potential loss of personal
control for individual shareholders. The choice between a company limited by shares and a
company limited by guarantee depends on the specific goals and nature of the business.

What is an Unlimited Company?

An unlimited company, as defined in Section 8 of the Companies Act, is a type of company
where the liability of its members is not limited. This means that the members of an unlimited
company have unlimited personal liability for the company's debts and obligations.

What are the key Features of Unlimited Companies?

Unlimited Liability: The primary feature of an unlimited company is that its members are
personally liable for all the company's debts and liabilities. Unlike limited companies, there is

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no cap on the amount for which members can be held responsible. If the company faces
financial difficulties or goes into liquidation, the members are personally liable to satisfy the
company's debts.

Separate Legal Entity: Just like limited companies, unlimited companies are considered
separate legal entities. They can enter into contracts, own property, sue, and be sued in their
own name.

Perpetual Succession: Similar to limited companies, unlimited companies enjoy perpetual

succession. Their existence is not dependent on the lives of their members, and they can
continue to operate even if their original members change.

No Share Capital: Unlimited companies typically do not have a share capital. Instead, the
company's constitution and the liability of its members are determined by its articles of
association.

Privacy and Flexibility: Unlike limited companies, unlimited companies may offer more
privacy to their members, as they are not required to disclose financial statements and certain
company details publicly. This level of privacy and flexibility in their operations may be
appealing to some businesses.

What are the Limitations of Unlimited Companies?

Unlimited Personal Liability: The most significant limitation of unlimited companies is that
their members bear the risk of unlimited personal liability. If the company incurs substantial
debts or liabilities that it cannot repay, members' personal assets are at risk, and they may be
required to use their personal funds to cover the company's obligations.

Limited Access to Capital: The unlimited liability aspect of these companies may deter
potential investors or shareholders from participating, as they face significant personal risk if
the company encounters financial difficulties.

Less Common Structure: Unlimited companies are relatively less common compared to
limited companies, mainly because the majority of businesses prefer the limited liability
protection offered by limited companies.

Compliance Requirements: While unlimited companies may have certain advantages in

terms of privacy, they are still subject to various compliance requirements under Kenyan law,
such as maintaining proper accounting records and filing annual returns.

Overall, unlimited companies may be suitable for specific types of businesses that prioritize
privacy and do not require significant external investment. However, due to the unlimited
personal liability of its members, this type of company structure is less common and may not
be ideal for businesses with high-risk profiles or plans for extensive growth and expansion.

What is a holding company?

A holding company is a type of company that has control over another company or a group of
companies. It does not necessarily engage in active business operations itself but exists to

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own and control the assets, stocks, and operations of other companies, known as its
subsidiaries.

What are the Key Features of a holding company?

 Control: A holding company exercises control over its subsidiary companies through
ownership of their shares, allowing it to influence their decision-making processes.
 Ownership: It typically owns a significant portion, often more than 50%, of the voting
rights and issued share capital of its subsidiaries.
 Board of Directors: The holding company can control the composition of the board of
directors of its subsidiaries, giving it significant authority in the subsidiary's
management and strategic direction.
 Strategic Management: Holding companies are often involved in long-term strategic
planning for their subsidiaries, aiming to maximize overall performance and synergy
among the companies under their control.
 Risk Diversification: By having control over multiple companies in different industries
or sectors, a holding company can spread its risks and reduce its exposure to the
potential failure of any single subsidiary.
What are the Limitations of a holding company?
 Legal Complexity: Operating as a holding company involves adhering to various legal
regulations and financial reporting requirements, which can be complex and time-
consuming.
 Financial Risk: While diversification can reduce risk, it can also expose the holding
company to financial risks if one or more of its subsidiaries face financial difficulties.
 Dependency on Subsidiaries: The success of a holding company is highly dependent on
the performance and profitability of its subsidiaries. Poor performance of key
subsidiaries can negatively impact the holding company's overall performance.
 Lack of Operational Control: Holding companies may face challenges in actively
managing and coordinating the operations of their subsidiaries, especially if they operate
in diverse industries.
 Market Perception: The stock market and investors may value a holding company at a
discount compared to the sum of its parts (the value of its individual subsidiaries),
known as the "conglomerate discount," which can affect the company's valuation and
attractiveness to investors.

What happens after registration of a company?

 Sue and be sued.
 It will be able to purchase property.
 It will be able to basically do anything it requires to be done in its own name.
 Under the doctrine of separate legal existence, once a company is registered, it becomes
separate from its members

After registering the company, it can do the following in its own name. It will be able to:

 Sue and be sued.

 It will be able to purchase property.
 It will be able to basically do anything it requires to be done in its own name.
 Under the doctrine of separate legal existence, once a company is registered, it becomes
separate from its members

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What is the doctrine of separate legal personality?

The doctrine of separate legal personality, also known as the doctrine of separate legal
existence, is a fundamental principle in company law. It establishes that once a company is
registered, it becomes a distinct legal entity separate from its shareholders or members. This
means that the company is recognized as a legal person with its rights, obligations, and
liabilities, distinct from those of its owners.
The key points of the doctrine of separate legal personality are:
 Separate Entity: Once a company is incorporated and registered, it acquires a legal
personality of its own. It can own assets, enter into contracts, sue, and be sued in its own
name. The shareholders or members, as individuals, are not personally liable for the
company's debts or liabilities beyond their investment in the company (limited liability).
 Veil of Incorporation: The concept of the "veil of incorporation" refers to the legal
separation between the company and its members. This veil protects the members from
being personally liable for the company's actions and debts. It is as if the company has
its own "corporate veil" that shields the shareholders.

Exceptions to the doctrine of separate legal personality:

Despite the general principle of separate legal personality, there are situations where the
corporate veil can be pierced, and the shareholders may be held personally liable for the
company's actions or debts. Some of the common exceptions include:
 Illegal Activities: If a company is used to carry out illegal activities, such as fraud or
criminal acts, the courts may disregard the separate legal personality and hold the
individuals responsible for their actions.
 Improper Use: When the company is not operated as a genuine independent entity and
is merely a façade for the personal affairs of its owners, the courts may lift the corporate
veil and hold the individuals accountable.
 Insufficient Capitalization: If a company is not adequately capitalized, and it becomes
insolvent, the courts may hold the shareholders personally liable for the company's debts
to protect the interests of creditors.
 Fraudulent Transactions: If a director or officer of the company engages in fraudulent
transactions, signing financial documents without disclosing the company's identity,
they may be personally liable for those actions.

Overall, the doctrine of separate legal personality is a crucial principle that provides the
foundation for the functioning of modern corporations. It allows businesses to operate with
limited liability for their owners and facilitates business activities and economic growth.
However, the exceptions to this doctrine ensure that the corporate structure is not abused for
illegal or fraudulent purposes.

What is the common law landmark case on the doctrine of separate legal personality
and summarise its key points

The common law landmark case on the doctrine of separate legal personality is Salomon v.
A. Salomon & Co. Ltd. This case was decided by the House of Lords (UK) in 1897 and is
considered one of the most important decisions in corporate law. It established the principle
that a company is a separate legal entity from its shareholders, even if a single person owns
and controls the entire company.
Case Summary:

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 1. Background: Solomon, a shoe manufacturer, incorporated his business into a limited
liability company. He held a significant number of shares, and his family members
held the remaining shares. The company subsequently faced financial difficulties and
went bankrupt.
2. Issue: The issue before the court was whether the company could be treated as a
separate legal entity distinct from its founder and shareholders, or if the corporate veil
should be lifted, making Solomon personally liable for the company's debts.
3. Decision: The House of Lords held that the company was indeed a separate legal
entity, independent of its shareholders, and upheld its limited liability status.
4. Key Points and Rationale:
o Separate Legal Personality: The court confirmed the principle of separate
legal personality for companies. Once a company is incorporated, it becomes a
distinct legal entity with its rights, liabilities, and existence separate from its
owners or shareholders.
o Limited Liability: The case emphasized that shareholders' liability is limited
to the nominal value of their shares. They are not personally responsible for
the company's debts beyond their investment in the company. This limited
liability encourages entrepreneurship and investment.
o Corporate Veil: The court clarified that the corporate veil (the legal
separation between the company and its members) should only be lifted in
exceptional circumstances when the company is used for fraudulent or
improper purposes to avoid legal obligations or perpetrate a fraud.
o Single-Member Companies: The case established that even if a single person
owns all the shares in a company, it still enjoys separate legal personality. The
fact that a single shareholder wholly owns and controls the company does not
negate its separate legal existence.
o Salomon's Principle: The case is often referred to as "Salomon's Principle,"
which upholds the separate legal personality of a company and limited liability
for its shareholders.
The decision in Salomon v. A. Salomon & Co. Ltd. has had a profound and lasting impact on
corporate law worldwide. It remains a foundational case in understanding the concept of
separate legal personality and the limited liability protection afforded to shareholders in the
context of company law.

What is the application of this case in kenya?

Salomon v. A. Salomon & Co. Ltd. and its principles of separate legal personality and
limited liability have significant application in Kenya, as it does in many other common law
jurisdictions. Here are some key ways in which the case's principles apply in Kenya:
 Incorporation of Companies: The case's fundamental principle of separate legal
personality applies in Kenya, allowing individuals and businesses to incorporate
companies as separate legal entities. Once incorporated, the company becomes distinct
from its shareholders and directors.
 Limited Liability: Kenyan company law follows the principle of limited liability,
where shareholders' liability is limited to the amount unpaid on their shares. This means
that shareholders are not personally liable for the company's debts beyond their
investment in the company. Their personal assets remain protected in the event of the
company's insolvency or financial difficulties.
 Single-Member Companies: Kenya, like many other jurisdictions, allows the
formation of single-member companies, where a single individual can be the sole

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 shareholder and director. The principles established in Salomon's case ensure that such
companies have separate legal personality, and the owner's liability remains limited to
the amount invested in the company.
 Lifting the Corporate Veil: Just as in other common law jurisdictions, in Kenya, the
corporate veil can be lifted in exceptional circumstances. If a company is being used for
fraudulent purposes or to evade legal obligations, the courts may disregard the separate
legal personality and hold the responsible individuals personally liable for the
company's actions.
 Investment and Entrepreneurship: The principles of separate legal personality and
limited liability encourage investment and entrepreneurship in Kenya. Individuals and
investors are more willing to invest in companies, knowing that their personal assets are
protected, and they will not be personally liable for the company's debts beyond their
shareholdings.
 Legal Entity for Contracts and Obligations: In Kenya, as in other countries, a
company is a separate legal entity capable of entering into contracts, owning property,
and incurring liabilities in its own name. It can sue and be sued in its own right.
Overall, the case's application in Kenya ensures that the country's corporate law aligns with
established common law principles, providing a stable and predictable legal framework for
businesses and investors. The doctrine of separate legal personality and limited liability
continues to play a crucial role in shaping corporate governance and business operations in
the country.

Explain how a Private Company becomes a Public Company:

 Approval by Special Resolution: The private company's board and members must
approve the conversion by passing a special resolution. This resolution indicates the
decision to change the status from a private company to a public company.
 Application for Conversion: The company needs to apply for the conversion with the
relevant regulatory authority. This involves submitting the necessary documents and
forms, including reserving a name for the new public company.
 Amending Articles of Association: The company's articles of association (or
constitution) need to be amended to reflect the change from a private company to a
public company. This may involve removing restrictions on offering shares to the
public.
 Confirmation of Liquidity Solvency: The company must provide an auditor's written
statement and report confirming that the company's liquidity and solvency are in order
to convert to a public company.
 Issuing the Certificate of Incorporation: After completing all the requirements and
submitting the necessary documents, the registrar of companies issues a new certificate
of incorporation, now reading the company's name as a public company.

Explain how a Public Company becomes a Private Company:

1. Approval by Special Resolution: Similar to the conversion to a public company, the
company must obtain approval by passing a special resolution for converting to a
private company.
2. Application for Conversion: The company needs to apply for the conversion with
the relevant regulatory authority and submit the required documents. This includes
reserving a name for the new private company.
3. Amending Articles of Association: The articles of association must be amended to
reflect the change from a public company to a private company. This includes
restricting the transferability of shares to a limited number of members.

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 4. No Objections in Court: For a public company, there should be no pending court
applications challenging the conversion. This is because public companies have a
larger number of members, and objections may arise during the conversion process.
5. Issuing the Certificate of Incorporation: Upon completing the necessary steps and
providing the required documents, the registrar of companies issues a new certificate
of incorporation, reflecting the company's status as a private company.

Explain how a Public Limited Company to a Limited Company:

The process for converting a public limited company to a limited company is similar to the
steps mentioned above. The company needs to pass a special resolution, amend its articles of
association, and obtain name reservation. The registrar of companies will then issue a new
certificate of incorporation, indicating the change in status from a public limited company to
a limited company.

Explain Conversion for Foreign Companies

The provided information does not mention a specific conversion process for foreign
companies. Conversion regulations may vary depending on the jurisdiction and the country in
which the foreign company is registered. Typically, a foreign company may need to follow
specific procedures to change its status or structure within the host country's legal framework.

What is the role of the company secretary in all companies?

In Kenya, the role of the company secretary is crucial in all companies, and their
responsibilities can vary based on the type of company they are associated with:
Private Companies:
 If the share capital of a private company is more than 5 million, they are required to
have a company secretary.
 The company secretary plays a vital role in ensuring compliance with statutory
requirements and proper governance.
Public Companies:
 All public companies in Kenya, regardless of their share capital, are mandated to have
a company secretary.
 The company secretary for public companies must be qualified under the Public
Certified Public Secretaries of Kenya Act and should be registered with a CS
(Certified Public Secretary) number.
Roles and Responsibilities of the Company Secretary:
Filing Documents and Compliance:
 One of the key responsibilities of the company secretary is to file necessary documents
and returns on behalf of the company. These filings ensure that the company is in
compliance with legal and regulatory requirements.
Convening Board Meetings:
 The company secretary plays a crucial role in organizing and convening board
meetings. They are responsible for sending out notices of meetings, preparing the
meeting agenda, and ensuring all relevant documents are provided to the board
members.
Taking Minutes:
 During board meetings, the company secretary is responsible for taking accurate
minutes. The minutes serve as an official record of the proceedings and decisions
made during the meeting.
Legal and Compliance Officer:

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  The company secretary acts as the legal and compliance officer of the board and the
company. They are well-versed in the legal requirements and regulations applicable to
the company's operations.
Point of Contact with Registrar of Companies:
 The company secretary serves as the main point of contact between the company and
the Registrar of Companies. They ensure that all required filings and communications
are appropriately addressed to the registrar.
Overall, the company secretary plays a critical role in facilitating effective communication
within the company, ensuring compliance with legal and regulatory obligations, and assisting
the board of directors in carrying out their duties and responsibilities. They are instrumental
in maintaining proper corporate governance and upholding the company's legal and ethical
standards.

What is a Shareholder?
Shareholders are individuals or entities who own shares in a company. They become
members of the company by subscribing to or purchasing shares, making them partial owners
of the company. Their association with the company is based on their ownership of shares.

What is the Role of Shareholders in Companies?

Shareholders play a significant role in companies as they are the owners of the business.
Their primary roles include:
 Appointing and removing directors who manage the company.
 Voting and participating in general meetings, including the Annual General Meeting
(AGM).
 Receiving dividends or bonuses based on the profits made by the company.
 Approving important decisions that may require shareholder approval.

What are the Rights and Duties of Shareholders in Companies?

Rights of Shareholders:
 Voting rights in general meetings, including AGMs.
 Right to receive dividends or bonuses based on their shareholding.
 Right to inspect the company's records and financial statements.
 Right to transfer their shares to other parties, subject to the company's articles of
association.

Duties of Shareholders:
 To act in good faith and in the best interests of the company.
 To exercise their voting rights responsibly and in accordance with the company's
interests.
 To comply with the company's articles of association and any other legal obligations.

What is a Director?
Directors are individuals who are responsible for managing the day-to-day activities and
affairs of the company. They are appointed to the board of the company and play a crucial
role in its decision-making process.

What is the Role of a Director in Companies?

Directors have the following key roles in companies:

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  Managing the company's operations and making strategic decisions.
 Representing the company and acting as its legal and compliance officers.
 Ensuring the company operates within the law and in the best interests of the company
and its shareholders.
 Overseeing the financial performance and accountability of the company.
 Appointing and supervising employees and other personnel.

What are the Rights and Duties of Directors in Companies?

Rights of Directors:
 The right to participate in board meetings and decision-making.
 The right to access relevant company information and records.
 The right to receive remuneration for their services as directors.
Duties of Directors:
 Duty of care and fiduciary duty to act in the best interests of the company.
 Duty to avoid conflicts of interest and not make secret profits.
 Duty to act honestly and in good faith.
 Duty to exercise their powers for proper purposes and not misuse them.

What is an Employee?

Employees are individuals who work for the company under an employment contract. They
carry out their duties and responsibilities under the direction and supervision of the directors
and management of the company. Employees do not own shares in the company and are not
part of the decision-making process.

What is the Role of an Employee in Companies?

Employees play a vital role in executing the day-to-day operations of the company. They
carry out tasks and responsibilities as directed by their superiors and contribute to the
company's overall objectives.

What are the Rights and Duties of Employees in Companies?

Rights of Employees:

 Right to fair wages and benefits as per their employment contract.

 Right to a safe and conducive working environment.
 Right to reasonable working hours and rest breaks.

Duties of Employees
 To perform their duties diligently and to the best of their abilities.
 To comply with company policies and procedures.
 To act in the best interests of the company while performing their assigned tasks.

What are derivative actions, and what is their purpose?

Derivative actions are a remedy available to minority shareholders or members of a company
who are facing the threat of being forcibly removed from the company. It allows them to file
a court application when a decision is about to be made to remove them from the company,
seeking court intervention to protect their interests. They can bring a claim on behalf of the

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company for wrongs done to the company, arising from negligence, breach of duty, or breach
of trust by a director.

How are decisions made in a company, and what are resolutions?

In every company, decisions are made through resolutions. Resolutions are decisions taken
by the company to perform a particular act. Before any meeting is convened, a notice of not
less than 14 days must be issued to all members and shareholders, announcing the meeting.
Decisions in meetings can be made through special resolutions or ordinary resolutions.

What is are the types of resolutions and when is it used?

A special resolution is a decision passed by a majority of 75% or more of the members of the
company. It is used for decisions that have a major effect on the company, such as liquidating
the company or altering the company's shareholding structure.

An ordinary resolution is passed by a simple majority, less than 75% but not less than 50%
of the members. It covers decisions that affect the company's day-to-day running, such as
changing the company secretary or the registered address, or recruiting employees to assist in
fulfilling the company's objectives.

What happens after a resolution is passed in a meeting?

For a resolution to have legal effect, it must be filed with the company's registry. If the
resolution is not filed, it remains an internal decision of the company, and the company's
register will not acknowledge that particular decision.

What is the role of shareholders in derivative actions?

Shareholders can bring derivative actions in court on behalf of the company to seek redress
for wrongs committed against the company. They act as representatives of the company in
pursuing legal remedies for any negligence, breach of duty, or breach of trust by a director.

How are special resolutions and ordinary resolutions different in terms of approval
percentages?

A special resolution requires a majority of 75% or more of the members to be approved,

while an ordinary resolution needs a simple majority of more than 50% but less than 75% for
approval.

What decisions are typically covered by special resolutions and ordinary resolutions,
respectively?

Special resolutions cover significant decisions that have a major impact on the company, such
as liquidation or major structural changes. Ordinary resolutions are used for day-to-day
operational decisions that affect the company's management and administration.

What are the types of shares in a company?

Explanation of Types of Shares in a Company:

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1. Ordinary Shares:

Ordinary shares are the most common type of shares issued by a company. When you
become a shareholder and subscribe to ordinary shares, you have certain rights and privileges
within the company.

Rights and Privileges:

(i) Right to Participate and Vote: Ordinary shareholders have the right to participate in the
company's meetings and express their opinions. They also have voting rights, allowing them
to vote on important decisions affecting the company.

(ii) Liability Contribution: In the event of the company's dissolution or winding up,
ordinary shareholders are among the first to contribute to the company's liabilities.

(iii) Bonuses and Dividends: Ordinary shareholders are entitled to a share of the company's
profits in the form of bonuses or dividends. However, their entitlement to profits is subject to
the company's financial performance and the availability of distributable profits.

2. Preference Shares:
o Preference shares are a distinct class of shares with certain advantages and
priorities over ordinary shares. Shareholders who subscribe to preference
shares have specific rights and benefits.
Rights and Privileges:
(i) Limited Voting Rights: While preference shareholders can participate in company
meetings, they do not have the same voting power as ordinary shareholders. They can express
their opinions but cannot fully implement their opinions through voting.
(ii) Liability Contribution: Similar to ordinary shares, preference shareholders also
contribute to the company's liabilities in the event of dissolution. However, they may not be
required to contribute as much as ordinary shareholders, depending on the terms of their
preference shares.
(iii) Priority in Distribution: Preference shareholders are given preference over ordinary
shareholders when it comes to distributing bonuses, profits, or dividends. They receive their
entitlement before ordinary shareholders, ensuring a higher chance of receiving returns on
their investment.
(iv) Shareholding Hierarchy: Preference shares may come in various classes, each with
different levels of priority in receiving dividends or assets during liquidation. Some
preference shares may have a higher ranking than others.

Summary: In summary, a company offers two main types of shares to its potential
shareholders: ordinary shares and preference shares. Ordinary shareholders have full voting
rights and participate equally in the company's decisions, but their entitlement to profits may
be lower than preference shareholders. On the other hand, preference shareholders enjoy
priority in receiving returns and have limited voting rights. The choice of shares depends on
the individual's preference for voting power, potential profits, and risk exposure in the event
of company dissolution.

Explain Borrowing in a Company: Equity Financing and Debt Financing

Equity Financing:

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  Equity financing is one of the ways a company can raise capital, and it involves using
shares and profits to raise funds.
 Methods of Equity Financing:
o Issuing Shares to the Public: The company may offer its shares to the general
public, allowing individuals to become shareholders by purchasing these
shares.
o Inviting Investors: The company can also invite investors to subscribe to its
shares, offering them an opportunity to invest in the company and become
shareholders.
 Equity financing relies on the company's existing assets, such as its shares, to raise
capital.
 Right of Preemption: If the company decides to offer shares to the public, it must first
offer these shares to its existing members, including directors and shareholders,
before making them available to the public.
 Risk and Repayment: Equity financing carries risks for investors as the value of
shares may fluctuate in the market. Investors' repayment comes in the form of
dividends, which are paid based on the company's profits. However, there is no fixed
timeline for repayment; investors receive dividends as and when the company
declares them.
Debt Financing:
 Debt financing involves a company borrowing money from financial institutions like
banks or individual investors, using its assets as security for the loan.
 Repayment and Interest: In debt financing, the company is required to pay back the
loan amount along with interest. The interest serves as a profit for the lender.
 Obligation to Repay: Regardless of the company's financial performance or share
value, the company is obligated to repay the loan and interest as per the terms of the
loan agreement.
 Debt Repayment: The repayment in debt financing is in the form of interest, and the
company is required to return the loaned amount along with the agreed-upon interest.
 Fixed Timeline: Debt financing typically has a fixed duration, and the company must
repay the loan within that specified period. For example, if the loan term is 20 years,
the company must adhere to the terms of the loan over this duration.
 Independent of Profits and Losses: Unlike equity financing, where investors' returns
depend on the company's profits and dividends, debt financing requires repayment of
the loan and interest irrespective of the company's financial performance.
Summary: In a company, there are two primary methods of raising capital: equity financing
and debt financing. Equity financing involves issuing shares and offering them to the public
or inviting investors to become shareholders in the company. Investors' repayment in equity
financing comes in the form of dividends based on the company's profits. On the other hand,
debt financing involves borrowing money from financial institutions or investors, with
repayment required along with interest. Debt repayment is not linked to the company's profits
or losses; the company must repay the loan and interest as per the agreed-upon terms,
regardless of its financial performance.

Can a member of a company subscribe to its debentures?

Yes, it is possible for a member of a company to subscribe for its debentures and become a
creditor. Debentures are long-term debt instruments issued by companies to raise capital. By
subscribing to debentures, the member becomes a creditor and promises to provide funds to

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the company in exchange for the debentures. The terms and conditions of the debentures are
usually outlined in a debenture trust deed or offering document.

What is the difference between debt financing and registering a charge over the shares
of a security?

Debt financing involves obtaining a loan by promising to repay the principal amount along
with interest to the lender. Registering a charge over the shares of a security is a form of debt
financing where the company uses its shares as collateral to secure a loan. The shares will be
in the bank's name until the loan is repaid, after which they will be returned to the company.

How can a company raise capital?

A company can raise capital through various methods, including:

 Equity Financing: By issuing shares to the public or inviting investors to subscribe to
its shares.
 Debt Financing: By obtaining loans from financial institutions or investors, promising
to repay the loan along with interest.
 Purchasing Bonds: Companies may also purchase bonds to raise capital, earning
interest on the bonds purchased from government or various investors.

What does beneficial ownership mean?

 Beneficial ownership refers to a natural person who ultimately owns or controls a
significant portion of shares or decisions in a particular company. The beneficial
owner has substantial control over the company, and decisions cannot be made
without their involvement. Typically, a beneficial owner is someone who owns more
than 10% of the company's shares.

What control does a beneficial owner have in a company?

 A beneficial owner has significant control over the company and holds certain rights,
including:
 The right to remove and appoint directors in the company.
 The authority to decide on the transfer or conversion of shares within the company.
 Ownership of at least 10% of the issued shares of the company.
 Holding 10% or more of the voting rights in the company.

Why are there regulations on beneficial ownership?

 The regulations on beneficial ownership were introduced in response to concerns
about silent owners of various companies engaging in money laundering and other
illicit activities. To address this issue, the regulations require companies to disclose
information about their beneficial owners. This ensures transparency and helps
identify individuals who own shares in different companies, preventing misuse of
company structures for illegal purposes.

What are the three thresholds for determining beneficial ownership?

The three thresholds for identifying beneficial ownership are:

 Holding the right to directly or indirectly appoint or remove a company director and
exercising significant influence or control over the company.

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  Owning at least 10% of the issued shares of the company.
 Exercising at least 10% of the company's voting rights.

What are the requirements of the beneficial ownership regulations?

The beneficial ownership regulations require every company to prepare a register of

beneficial owners and submit it to the registrar of companies within 30 days from the date of
its preparation. This register must contain details of individuals who meet the criteria for
being beneficial owners, ensuring transparency and accountability.

What is the distinction between companies and other forms of business?

Companies:
 Number of Shareholders: Companies are registered with the registrar of companies
under the provisions of the Companies Act. They can have one or more
shareholders/members.
 Liability: The liability of shareholders in a company is limited to the amount of
investment they have placed into the business. Their personal assets are protected
from business debts and obligations.
 Profit Distribution: Profits in a company are distributed by way of dividends to
shareholders in proportion to the number of shares they hold.
 Continuity: Companies have perpetual succession as they are separate legal entities
from their shareholders. The company can continue to exist even if shareholders
change.
Sole Proprietorships:
 Number of Shareholders/Partners/Members: Sole proprietorships are typically
owned and operated by one individual. There is no formal procedure for registration,
but the business name may be registered under the Registration of Business Names
Act.
 Liability: The owner of a sole proprietorship has unlimited liability, meaning their
personal assets are at risk for business debts and obligations.
 Profit Distribution: Profits in a sole proprietorship are withdrawn by the owner.
 Continuity: The continuity of a sole proprietorship is dependent on the owner. If the
owner dies or decides to close the business, the business may cease to exist.
General Partnerships:
 Number of Shareholders/Partners/Members: General partnerships consist of two
or more partners. There is no formal procedure for registration of general
partnerships, but limited partnerships and limited liability partnerships may have
specific registration procedures under the Partnerships Act and Limited Liability
Partnership Act, respectively.
 Liability: In general partnerships, the partners have unlimited liability for business
debts and obligations. Limited partnerships provide limited liability to certain
partners, while the general partner(s) remain fully liable.
 Profit Distribution: Profits in a general partnership are distributed to partners
according to the profit-sharing ratio agreed upon in the partnership deed.
 Continuity: The continuity of a general partnership is affected by the death,
retirement, or bankruptcy of the partners. The partnership may dissolve in such cases.

What is a promoter in Kenyan company law?

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A promoter is a person or a group of individuals who take the initiative to form a company
and are involved in the promotion and establishment of the company. They are legally
referred to as promoters in Kenyan company law.

How does the Companies Act define a promoter?

Section 45 (5) of the Companies Act defines a promoter as "a promoter who was a party to
the preparation of prospectus or on the particulars thereof but doesn’t include any person by
reason of his acting in a professional capacity for persons engaged in procuring the formation
of the company."

What is the role of a promoter in forming a company?

A promoter undertakes the responsibility to conceive a business idea, gather resources, and
take the necessary steps to establish the company. They prepare the documentation, register
the company, and meet its preliminary expenses, among other essential tasks.

How does a promoter's relationship with the company in formation affect their role?

A promoter stands in a fiduciary position with regard to the company in formation. This
means they have a duty of trust, confidence, and good faith towards the company. They must
act in the best interests of the company and disclose any personal interests that could create
conflicts of interest.

What are the fiduciary duties of a promoter?

Promoter's fiduciary duties include: a. Duty to act bonafide: They must act in good faith and
in the best interest of the company. b. Proper accounting: Promoters must explain the
application of money or assets that come to their hands during the promotional phase. c.
Disclosure: Promoters must disclose any personal interests in transactions to avoid conflicts
of interest.

Can a promoter be entitled to remuneration for incorporating the company?

No, a promoter is not entitled to remuneration for incorporating the company as there is no
contractual relationship between the promoter and the non-existing company. However, in
practice, promoters may recover their expenses as per the company's Articles, subject to legal
limitations.

What are pre-incorporation contracts, and how are they treated in Kenyan company
law?

Pre-incorporation contracts are contracts entered into by individuals on behalf of a company

before its incorporation. At common law, such contracts are generally unenforceable by or
against the company because the company does not legally exist at that time.

What remedies can be pursued against promoters for breach of duty?

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The remedies against promoters for breach of duty include: a. Rescission: The contract may
be rescinded to restore the parties to their original position. b. Account/Recovery of profit:
The company can recover any secret profit made by the promoter without disclosure. c.
Damages: The company can claim damages for the breach of duty. d. Compensation: Third
parties who suffered loss or damage due to untrue statements in the prospectus can claim
compensation from the promoters. e. Public examination: Promoters involved in fraudulent
activities may be subject to public examination in court.

What are the duties of a company director?

Statutory Duties: Company directors in Kenya are bound by several statutory duties as
outlined in various sections of the Companies Act. These include:
 Prohibition of loans to directors (Section 191).
 Approval of company in a general meeting required for payment to directors for loss of
office (also see Section 192).
 Duty of director to disclose payment for loss of office made in connection with the
transfer of shares in a company (Section 194).
 Maintaining a register of directors' shareholdings and interests (Section 196).
 Including particulars of directors' salaries, pensions, etc., in the company's accounts
(Section 197).
 Disclosing particulars of loans to officers, etc., in the company's accounts (Section 198).
 General duty to make disclosures for purposes of Sections 196, 197, and 198 (Section
199).
 Disclosure by directors of interests in contracts with the company's board of directors
(Section 200).
 Maintaining a register of directors and secretaries (Section 201).
 Including particulars with respect to directors in trade catalogues and circulars (Section
202).

Duties of Care and Skill: Directors are expected to exercise a reasonable degree of skill and
care that is appropriate for a person with their level of expertise. While they are not required
to give continuous attention to the affairs of the company, they are responsible for ensuring
that decisions are made with due care and competence. Directors may delegate some of their
responsibilities to officials or employees of the company, but they remain accountable for the
overall management and decision-making.

Fiduciary Duties of Loyalty and Good Faith: Directors owe fiduciary duties to the
company, which include:
 Acting within the scope of their powers and not exceeding their authority.
 Exercising their discretion without any external influence or conflicts of interest.
 Avoiding personal interests that may interfere with their duties to the company.
 Disclosing any interests they have in contracts or transactions with the company.
 Not using their position to gain secret profits or to compete with the company.
 Maintaining confidentiality and not misusing confidential information for personal gain.

Duties of a Company Secretary:

The duties of a company secretary in Kenya include, but are not limited to:
 Issuing notices of general meetings to the company's members with the board's
consent.
 Issuing notices of board meetings to the members of the board.

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  Assisting in conducting board and general meetings.
 Keeping and maintaining books and registers as required by law.
 Countersigning documents on which the company seal has been affixed.
 Making statutory returns and filings on behalf of the company in compliance with
legal requirements.
Please note that the specific duties of directors and company secretaries may vary depending
on the company's Articles of Association, any shareholders' agreements, and other contractual
arrangements.

Corporate governance

What is a company?
 A company is an association of people coming together to carry out a commercial
venture. It takes a form of incorporation or registration that results in a distinct legal
entity separate from its members.

What is corporate governance?

 Corporate governance is concerned with the practices and procedures aimed at
ensuring that a company is run in a manner that aligns with its mission and goals. It
involves the stewardship, management, direction, and control of the company.

Why is corporate governance needed?

 Corporate governance is needed because as companies grow, there is a need for
effective oversight and management. Conflicts may arise between the various
stakeholders, including shareholders, employees, and directors. Corporate governance
helps regulate these relationships and manage potential conflicts of interest.

What does corporate governance do?

Corporate governance develops a set of principles to regulate the relationship between

shareholders, stakeholders (such as employees and debt holders), and stewards (directors and
management). It addresses the natural tensions that arise between the interests of these groups
and aims to govern companies in the best interests of shareholders and stakeholders.

How can corporate governance be defined from a shareholder's perspective?

From a shareholder's perspective, corporate governance can be defined as a process for

monitoring and control to ensure that the company's management runs the business in the
best interests of the shareholders.

What is the main issue with corporate governance for large companies?

For large companies, the main issue with corporate governance lies in the relationship
between the board of directors (the stewards) and the shareholders (the owners). It involves
how the board exercises its powers and ensures that management operates in the best interests
of the company and its shareholders.

What is the difference between management and governance?

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Management refers to the executive day-to-day activities carried out by individuals involved
in decision-making and the operational running of the company. Governance, on the other
hand, is the non-executive leadership provided by the board of directors to guide the
company's overall direction and ensure proper oversight and control. Both management and
governance are forms of stewardship within a company.

What is corporate governance, and how did it evolve in Kenya?

Corporate governance in Kenya refers to the system of rules, practices, and processes that
ensure companies are directed and controlled effectively. It evolved in Kenya through the
establishment of a Private Sector Initiative for Corporate Governance in 1998 and the
subsequent adoption of a national code of best practice for corporate governance in October
1999. Over the years, the Capital Market Authority (CMA) issued guidelines and codes to
improve corporate governance practices in both public listed companies and state
corporations.

Why is corporate governance important?

Corporate governance is of utmost importance due to corporate failures and their adverse
economic and political consequences. It aims to ensure ethical conduct, transparency,
accountability, and fairness in company operations, safeguarding the interests of
shareholders, stakeholders, and the society at large.

What are the key theoretical frameworks of corporate governance?

The two key theoretical frameworks of corporate governance are:

 Agency theory: This justifies a shareholder approach to corporate governance,

focusing on the separation of ownership and control, conflicts of interest between
owners and managers, and mechanisms to align interests.
 Stakeholder theory: This advocates for a broader approach to corporate governance,
considering the interests of all stakeholders, including employees, investors, suppliers,
creditors, customers, and the government.

What are the pillars of corporate misgovernance?

The five pillars of corporate misgovernance are:

 Dominance of a few individuals on the board of directors.

 Misleading financial reporting or inadequate audit of financial statements.
 Poor relationship between the board and shareholders.
 Ineffective risk management and inadequate internal controls.
 Inappropriate reward systems for directors and senior management.

How does the stakeholder theory differ from the agency theory?

The stakeholder theory advocates for decision-making that considers the interests of all
stakeholders, not just shareholders, while the agency theory focuses primarily on maximizing
shareholder wealth. Stakeholder theory acknowledges the importance of various stakeholders,
such as employees, investors, suppliers, customers, and the government, in corporate
governance.

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Is corporate governance effective in Kenya?

Corporate governance in Kenya has shown mixed results. While there have been instances of
corporate failures and misgovernance, the principles of corporate governance have also
contributed to the success and stability of some companies. The codes and guidelines have
helped prevent some of the worst instincts in corporate practices, but there is room for
improvement to ensure consistent adherence to good governance principles.

Mergers and Acquisitions

What are mergers?

Mergers refer to the acquisition of shares, business, or other assets, both inside and outside
Kenya, resulting in a change of control of a business, part of a business, or an asset of a
business in Kenya. It includes the formation of a new entity resulting from the combination of
two or more undertakings, such as NIC Bank and CBA merging to create NCBA.

When can mergers occur?

Mergers may occur when one entity wants to gain a stronger presence in a particular market,
or when both entities can benefit from each other's assets or resources. For example, entities
may merge if one has a significant client base but lacks a strong market presence, while the
other entity has valuable assets but faces financial challenges.

What is the difference between mergers and acquisitions?

Mergers and acquisitions (M&A) are related concepts in the business world, but they are not
the same thing. They both involve the combination of two or more companies, but they differ
in how the combination is structured and the outcome for the involved entities. Here's the
difference between mergers and acquisitions:
Mergers:
 Definition: A merger occurs when two or more independent companies come together
to form a new entity. It is a voluntary and consensual joining of forces where the
original companies cease to exist, and a completely new legal entity is created.
 Outcome: In a merger, a new company is formed, and the ownership and control of
both merging companies are combined. Shareholders from each company typically
receive shares in the new entity, and they become shareholders of the merged
company.
 Example: An example of a merger would be the combination of Company A and
Company B to form Company C, where both A and B no longer exist, and all assets
and liabilities are transferred to the new Company C.
Acquisitions:
 Definition: An acquisition involves one company (the acquiring company) purchasing
the assets or shares of another company (the target company). It can be either a
friendly or hostile takeover.

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  Outcome: In an acquisition, the target company may continue to exist as a separate
legal entity, but its ownership and control are now in the hands of the acquiring
company. The acquiring company may gain control by buying a majority of shares or
assets, and it may or may not change the target company's name or integrate it into its
existing operations.
 Example: An example of an acquisition would be Company X acquiring a controlling
stake in Company Y by purchasing a significant number of shares. After the
acquisition, Company Y may continue to operate under its name, but its major
decisions would be subject to Company X's control.
In summary, mergers involve the creation of a new entity where both original companies
cease to exist, while acquisitions involve one company buying the assets or shares of another
company, allowing the target company to either remain independent or be integrated into the
acquiring company's operations.

What is a takeover?

A takeover occurs when one entity acquires and takes over the affairs of another entity. In
this process, the acquiring entity gains control over the target entity, which may be struggling
financially or facing other challenges. Unlike a merger, a takeover does not necessarily result
in the creation of a new entity.

What is the difference between a takeover and a merger?

The main difference between a takeover and a merger is that a takeover involves one entity
acquiring and taking over the affairs of another entity. In a takeover, the target entity ceases
to exist, while the acquiring entity retains its existence and gains more control over the target
entity. In contrast, a merger involves two or more entities coming together to form a new
entity, where neither of the original entities ceases to exist.

Give an example of a recent merger acquisition and takeover that has happened in
Kenya

Merger: Example: NIC Bank and Commercial Bank of Africa (CBA) Merger Date:
Completed in 2019 Details: NIC Bank and CBA, two major Kenyan banks, merged to create
a new entity called NCBA Bank. The merger aimed to leverage the strengths of both banks
and enhance their market presence and competitiveness.

Acquisition: Example: VIVO Energy Acquisition of Engen Holdings Date: Completed in

2019 Details: VIVO Energy, a pan-African energy company, acquired Engen Holdings'
downstream operations in Kenya. The acquisition allowed VIVO Energy to expand its
footprint in the Kenyan market and strengthen its position in the oil and gas industry.

Takeover: Example: Access Bank Plc Takeover of Transnational Bank Date: Completed in
2019 Details: Access Bank Plc, a Nigerian multinational bank, acquired Transnational Bank,
a Kenyan commercial bank. The takeover provided Access Bank with an entry into the
Kenyan market and expanded its operations in East Africa.

What is the initial first stage when considering a merger or acquisition?

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 The initial first stage when considering a merger or acquisition is conducting legal due
diligence.
 Due diligence is a process of verification, investigation, or audit during a potential deal or
investment opportunity.
 It aims to confirm all relevant facts and financial information, assess legal risks, and
ensure compliance with regulations. A due diligence report is prepared to help the entities
involved understand the risks and opportunities associated with the merger or acquisition.

What is a due diligence questionnaire (DDQ)?

A due diligence questionnaire (DDQ) is a list of frequently asked questions used during the
due diligence process. It helps the merging companies effectively investigate the merging
process, mitigate risk, and identify early red flags. The DDQ may vary depending on the deal
type and target company, but it typically includes categories covering financial, legal,
commercial, tax, environmental, and other relevant aspects.

What is a due diligence report?

A due diligence report is prepared based on the findings from the due diligence process. It
serves as a comprehensive summary of the investigation and highlights areas of concern, risk,
and opportunities. The report is crucial in evaluating the feasibility of the merger or
acquisition and helps the entities involved make informed decisions.

What is a disclosure letter in the context of mergers and acquisitions?

A disclosure letter is a key document prepared by the seller in a merger or acquisition

transaction. It includes general and specific disclosures regarding the seller's business,
providing important information in the due diligence process for the buyer. The disclosure
letter limits the seller's liability in the acquisition agreement by disclosing liabilities and
material facts that the buyer should be aware of before finalizing the deal.

What is the regulatory framework for mergers and acquisitions in Kenya?

The regulatory framework for mergers and acquisitions in Kenya includes the following key
laws and guidelines:
 Competition Act No. 12 of 2010, as amended by the Competition (Amendment) Act
No. 49 of 2016.
 Competition (General) Rules, 2019.
 Transfer of Business Act.
 Consolidated Guidelines on the Substantive Assessment of Mergers under the
Competition Act.
 Capital Markets Act (applicable to listed public companies).
 Sector-specific laws, such as those governing banking, telecommunications, and
energy, including agreements like the Memorandum of Understanding (MOU)
between the Competition Authority of Kenya (CAK) and the Central Bank of Kenya
(CBK) for addressing competition concerns in the banking sector.

Why is it important to know the regulatory framework for mergers and acquisitions?

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Understanding the regulatory framework is crucial for entities involved in mergers and
acquisitions due to the following reasons:
 Conducting Due Diligence: Entities must conduct due diligence to determine
whether they require approval from any regulatory authority before proceeding with
the transaction.
 Fulfilling Legal Obligations: It is essential to identify and fulfill any legal and
compliance obligations associated with the merger or acquisition. Approval from
relevant regulators is often a mandatory requirement for such transactions.
 Notifiability and Approval: Mergers and acquisitions are subject to regulation by the
Competition Authority of Kenya. Notifiable transactions must be approved by the
authority before proceeding.

What are the three limbs of Mergers and Acquisitions?

The three limbs of mergers and acquisitions can be summarized as follows:

 Joining of Entities: The first limb considers whether two or more entities have come
together to form a new entity or combine their operations in some way.
 Change of Control: The second limb assesses whether there is a transfer of control
from one entity to another. This could involve gaining a controlling interest or
acquiring shares or assets of another undertaking.
 Notifiability and Approval: The third limb focuses on whether the transaction is
notifiable to the relevant regulatory authorities, such as the Competition Authority of
Kenya, and whether it requires their approval before proceeding.

How is a merger achieved according to Section 41(2) of the Competition Act?

According to Section 41(2) of the Competition Act, a merger can be achieved through
various means, including:

 Purchase or Lease of Shares or Assets: The acquiring undertaking may purchase or

lease shares or assets of the target undertaking.
 Acquisition of Controlling Interest: The acquiring undertaking can gain a controlling
interest in a section of the business of the target undertaking, capable of operating
independently.
 Acquisition of an Undertaking under Receivership: The acquiring undertaking may
acquire an undertaking under receivership, either within or outside Kenya.
 Controlling Interest in a Foreign Undertaking with a Kenyan Subsidiary: Acquiring a
controlling interest in a foreign undertaking that, in turn, has a controlling interest in a
subsidiary in Kenya (extra-territorial operation of mergers).
 Conglomerate Undertaking: The acquiring undertaking can gain control of another
undertaking or a section of it, capable of independent operation.
 Vertical Integration: Achieving vertical integration between entities.
 Exchange of Shares: Undertakings may exchange shares, leading to a substantial
change in ownership structure.
 Amalgamation, Takeover, or Other Combination: Undertakings can achieve a merger
through amalgamation, takeover, or other forms of combination with another
undertaking.

What constitutes a controlling interest in a merger?

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  A controlling interest in a merger refers to the power or ability to make significant
decisions and changes in another entity.
 These powers could include appointing or removing directors, hiring or dismissing
employees, and making strategic decisions that significantly impact the operations
and management of the target entity.
 A controlling interest must bring about a material difference in how the acquired
entity is conducted and managed within the new merged or acquiring entity.

What is a controlling interest in the context of mergers and acquisitions?

A controlling interest in the context of mergers and acquisitions refers to the power or ability
of one entity to exert significant control over another entity. It means that the controlling
entity can influence crucial decisions and policies of the target undertaking, either directly or
indirectly. Several factors determine a controlling interest, including ownership of shares,
appointment and dismissal of directors, voting rights, and the ability to influence policies and
decisions. The existence of a controlling interest is a critical consideration in merger
negotiations and plays a significant role in shaping the new entity's structure and
management.

What are the criteria for establishing a controlling interest in a merger or acquisition?

The criteria for establishing a controlling interest in a merger or acquisition are as follows:
1. The ability to appoint or dismiss directors of the target undertaking, granting the
power to constitute the board of directors.
2. Beneficially owning more than one-half (1 ½) of the issued share capital or business
assets of the target undertaking.
3. Holding the majority of votes that may be cast at a general meeting of the target
undertaking, directly or through a controlled entity.
4. The power to appoint or veto the appointment of a majority of the directors of the
target undertaking.
5. Being a holding company of the target undertaking as defined in the Companies Act
(Cap. 486).
6. Materially influencing the policy of the target undertaking in a manner comparable to
a person exercising control as described in points (a) to (f) above.
7. Controlling the majority of votes of the trustees or appointing or changing the
majority of beneficiaries in the case of the target undertaking being a trust.
8. Owning the majority of members' interest or controlling the majority of members'
votes in the case of the target undertaking being a nominee undertaking.

How does the concept of controlling interest affect merger negotiations?

The concept of controlling interest is a crucial factor in merger negotiations as it determines

which entity will have more influence and decision-making power in the new entity. During
merger negotiations, both the acquiring and target undertakings must consider their
shareholding, voting rights, and the ability to appoint directors to achieve a favorable
position. The entity that holds a controlling interest will have a stronger position in shaping
the policies, strategies, and future direction of the merged entity. As a result, negotiation
dynamics heavily depend on the determination of controlling interest, as it impacts the
distribution of power and control within the new entity.

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Who is a beneficial owner, and how is it defined according to the Companies (Beneficial
Ownership Information) Regulations, 2020?

A beneficial owner, as defined by the Companies (Beneficial Ownership Information)

Regulations, 2020, refers to the natural person who ultimately owns or controls a legal
person, or the natural person on whose behalf a transaction is conducted. It also includes
individuals who exercise ultimate effective control over a legal person. The purpose of these
regulations is to identify the natural persons who own stakes in various companies to prevent
tax evasion, money laundering, and enhance accountability in the regulatory environment.
The definition of a beneficial owner is based on the following four limbs:
 Holds the right, directly or indirectly, to appoint or remove a director of the
company: If a natural person has the authority to appoint or remove a director
without the need for a board meeting, they are considered a beneficial owner.
 Exercises significant influence or control, directly or indirectly, over the
company: This includes cases where a person holds at least 10% of the company's
voting rights, allowing them to make significant decisions within the company.
 Holds at least 10% of the issued shares in the company, directly or indirectly: A
beneficial owner can manipulate or transfer company shares if they own at least 10%
of the total issued share capital of the company.
 Exercises at least 10% of the voting rights in the company: If a person holds at
least 10% of the company's voting rights, they are considered a beneficial owner.
The Companies Registry requires this information to monitor and submit it to agencies like
the financial reporting center to prevent money laundering transactions. Each entity is
obligated to submit this information, creating a register of natural persons meeting the four
mentioned thresholds. This information is made available to relevant authorities, such as the
Kenya Revenue Authority (KRA), to trace and ensure accountability of these beneficial
owners in different companies.

Can a merger be implemented in Kenya without the approval of the Competition

Authority of Kenya (CAK)?

No, a merger cannot be implemented in Kenya without the authority of the CAK and without
complying with the conditions attached to the approval. Any merger carried out without
CAK's approval has no legal effect, and any obligations imposed on the participating parties
by any agreement related to the merger shall not be enforceable in legal proceedings.

What is the Competition Act of 2010, and what is the role of the Competition Authority
of Kenya (CAK)?

The Competition Act of 2010 establishes the Competition Authority of Kenya (CAK), whose
mandate is to promote and safeguard competition in the national economy. The CAK's
Mergers and Acquisitions Department analyzes merger applications, approves them with or
without conditions, or rejects them. The department also investigates mergers that may have
been implemented without the CAK's approval and provides recommendations. Additionally,
the CAK identifies and analyzes unwarranted concentration of economic power.

What is the purpose of the Competition Act of 2010?

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The object of the Competition Act of 2010, as stated in Section 3, is to enhance the welfare of
the people of Kenya by promoting and protecting effective competition in markets. It aims to
prevent unfair and misleading market conduct throughout Kenya and achieve several
objectives:
a. Increase efficiency in the production, distribution, and supply of goods and services;
b. promote innovation;
c. Maximize the efficient allocation of resources;
d. Protect consumers;
e. Create an environment conducive for investment, both foreign and local;
f. Capture national obligations in competition matters with respect to regional integration
initiatives;
g. Bring national competition law, policy, and practice in line with best international
practices; and
h. Promote the competitiveness of national undertakings in world markets.

Who does the Competition Act apply to in relation to Extra-territorial operation?

The Competition Act applies to conduct outside Kenya by:

 A citizen of Kenya or a person ordinarily resident in Kenya.
 A body corporate incorporated in Kenya or carrying on business within Kenya.
 Any person in relation to the supply or acquisition of goods or services by that person
into or within Kenya.
 Any person in relation to the acquisition of shares or other assets outside Kenya
resulting in the change of control of a business, part of a business, or an asset of a
business in Kenya.

Which mergers are excluded from CAK's approval under the Competition Act?

Mergers that will not affect competition negatively and are excluded from CAK's approval
include:
 Mergers where the value of the assets of the merging parties or the combined turnover
for the preceding year does not exceed 500 million Kenyan shillings.
 Mergers taking place wholly or entirely outside Kenya with no local connection, i.e., the
parties have no subsidiaries or branches in Kenya.
 Mergers where a COMESA merger filing has been made, and at least two-thirds of the
turnover or value of assets is not derived from Kenya.
 Mergers where certain sectors, such as energy-related materials, have no negative
impact on competition and are excluded from CAK approval.

What mergers must be approved by CAK?

Mergers that must be approved by CAK include:

 Mergers where the merging parties/entities have a combined turnover or assets
(whichever is higher) of the target undertaking between 500 million and 1 billion
Kenyan shillings.
 Mergers where the turnover or assets (whichever is higher) of the acquiring
undertaking is above 10 billion shillings, and the merging parties are in the same
market or can be vertically integrated.
 Mergers in the carbon-based mineral sector where the value of reserves, rights, and
associated assets to be held exceeds 10 billion Kenyan shillings.

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  Mergers where the merging parties operate in COMESA, and their combined turnover
or assets (whichever is higher) does not exceed 500 million Kenyan shillings, with
two-thirds or more of their turnover or assets generated or located in Kenya.

How should an undertaking involved in a proposed merger notify the Competition

Authority of Kenya (CAK)?

An undertaking involved in a proposed merger should notify CAK in writing. If the total
combined turnover or asset of the merging parties is above 1 billion Kenyan shillings, the
merger requires approval from CAK.

Is there a specific timeline for the CAK to notify a party of a response to a request of a
proposed merger?

There is no specific sub-timeline However, CAK will communicate with the contact person
stated in the notification letter after 60 days.

If CAK considers the proposed merger to be complex, it may extend the review period by up
to 60 days and inform the involved undertakings in writing.

What are the potential outcomes after CAK receives the notification of a proposed
merger?

CAK may either grant a hearing conference or request further documentation from the
entities involved in the proposed merger.

What is the purpose of a hearing conference in relation to a proposed merger?

A hearing conference may be convened by CAK for the purpose of determining the
application for approval of the proposed merger. It allows the entity to explain why they
deserve the merger application approval and addresses any concerns raised by CAK.

What criteria does CAK consider in determining a proposed merger?

CAK's criteria for determining a proposed merger include assessing the likelihood of the
merger preventing or lessening competition, the potential benefits to the public outweighing
any detriment, the impact on particular industrial sectors or regions, effects on employment,
the ability of small undertakings to compete, and the ability of national industries to compete
in international markets.

How does CAK handle a proposed merger that requires further investigation?

CAK may refer the particulars of the proposed merger to an investigator who will investigate
the proposal and provide a report to CAK. Any person, including a person not involved in the
merger, may submit relevant information to the investigator or CAK.

What happens after CAK makes a determination on a proposed merger?

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CAK will give a written notice of the determination to the parties involved in the merger and
publish a notice in the Gazette. If the proposed merger is approved, CAK may impose
conditions that the parties must fulfill.

Can CAK revoke its approval of a proposed merger?

Yes, CAK may revoke its approval of a proposed merger if the decision was based on
materially incorrect or misleading information provided by a party to the merger or if any
condition attached to the approval is not complied with.

What happens if an entity disagrees with CAK's decision on a proposed merger?

If an entity disagrees with CAK's decision on a proposed merger, they can appeal to the
Competition Tribunal within 30 days of receiving CAK's notice. The Tribunal will review the
decision and may confirm, overturn, or amend the decision. The decision of the Tribunal is
final, but a dissatisfied party may appeal to the High Court.

Insolvency.

What is insolvency?
In Kenya, insolvency refers to the financial state of a person or entity where they are unable
to meet their financial obligations or discharge their debts as they become due. It is a
condition where the liabilities of an individual or a company exceed their assets, leading to an
inability to repay debts or maintain normal business operations.
Insolvency can occur in various forms, such as:
 Personal Insolvency: This occurs when an individual is unable to repay their debts or
meet financial obligations, leading to the risk of bankruptcy. In Kenya, personal
insolvency is governed by the Bankruptcy Act.
 Corporate Insolvency: Corporate insolvency refers to the financial distress of a company
or a business entity where it becomes unable to pay its debts and fulfill financial
obligations. Corporate insolvency in Kenya is governed by the Insolvency Act, 2015.
 Liquidation: Liquidation is the process by which a company's assets are sold off, and its
operations are brought to an end. It occurs when a company is insolvent and is unable to
continue its business operations.
 Receivership: Receivership involves the appointment of a receiver or a manager to take
control of a company's assets and operations to protect the interests of creditors. This
usually happens when a company is unable to meet its financial obligations, and a
receiver is appointed by the lenders.
 Administration: Administration is a process where a company is placed under the
control of an administrator, who works towards rescuing the company and ensuring it
remains a going concern. It is aimed at restructuring the company's affairs and
facilitating its financial recovery.
 Voluntary Arrangement: In some cases, individuals or companies facing insolvency may
enter into voluntary arrangements with their creditors to repay debts over an extended
period or agree on other terms of repayment.
It is important to note that insolvency in Kenya is a serious financial situation, and there are
legal mechanisms and procedures in place to deal with it. The Bankruptcy and Insolvency
Acts provide a framework for managing insolvency and protecting the rights of creditors and
debtors in such situations.

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What are the options available to creditors before instituting court proceedings for non-
payment of debts in Kenya?

Before creditors resort to court proceedings due to non-payment of debts, they have several
options available. One option is voluntary winding up, where an entity acknowledges that its
liabilities exceed its assets and decides to dissolve the company voluntarily. If voluntary
dissolution is not feasible, creditors can initiate liquidation through the court process. The
Insolvency Act in Kenya offers various alternatives to dissolve a company's assets or settle
outstanding debts owed to creditors.

What is the rationale behind the Insolvency Act, 2015 in Kenya?

Answer: The main objectives of the Insolvency Act, 2015, are to establish an efficient and
equitable framework for administering the estates of insolvent natural persons and the assets
of insolvent companies and other corporate bodies. It aims to strike a balance between the
interests of individuals declared bankrupt and those of their creditors. Additionally, the act
provides an opportunity for insolvent individuals and companies with redeemable financial
positions to continue operating as going concerns, thereby enabling them to fulfill their
financial obligations to creditors. For those with irredeemable financial positions, the act sets
out an orderly system for the optimal administration and distribution of their assets for the
benefit of creditors.

Who can conduct insolvency proceedings in Kenya?

Insolvency proceedings in Kenya can only be conducted by licensed insolvency practitioners.

These practitioners can be either members of the Law Society of Kenya (LSK) or members of
the Institute of Certified Public Accountants of Kenya (ICPAK). They are responsible for
overseeing insolvency processes, such as acting as bankruptcy trustees for individuals
adjudged bankrupt and as liquidators or administrators for insolvent companies. To become
an insolvency practitioner, one must apply to the office of the official receiver under the
Office of the Attorney General. The requirements for obtaining a license include being a
member of ICPAK or LSK, having relevant experience in insolvency matters, and obtaining
professional indemnity insurance cover of at least 25 million Kenyan shillings. Additionally,
insolvency practitioners must give a security bond of 5 million Kenyan shillings to ensure
accountability and protect against any misconduct.

What are the qualifications required for someone to become an insolvency practitioner
in Kenya?

To become an insolvency practitioner in Kenya, the individual must meet the following
qualifications:
 Be a member of the Law Society of Kenya (LSK) or a member of the Institute of
Certified Public Accountants of Kenya (ICPAK).
 Have relevant experience in handling insolvency matters, particularly on behalf of
bankruptcy persons.
 Possess professional indemnity insurance cover of at least 25 million Kenyan shillings
to safeguard against any unprofessional behavior or bribery.
 Provide a security bond of 5 million Kenyan shillings, which serves as a backup in
case of misconduct and compensates for any losses caused by the practitioner.
 Make an application to the office of the official receiver under the Office of the
Attorney General for a license to practice as an insolvency practitioner.

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Please note that insolvency practitioners must maintain a high level of integrity and
professionalism in their conduct while handling creditors' and debtors' financial matters.

What is bankruptcy in Kenya?

Bankruptcy in Kenya refers to the state where a natural person becomes insolvent, meaning
they are unable to pay their debts as they become due. It is a legal process that occurs when a
court makes an order declaring a debtor as bankrupt.

How does one become declared bankrupt in Kenya?

To be declared bankrupt in Kenya, an application must be made to the court either by a

creditor or the debtor themselves. The court will then assess the criteria for bankruptcy,
including the debt amount, debtor's ability to pay, and compliance with any notices or court
orders related to the debt.

What criteria must be met for a person to be declared bankrupt by a creditor?

Creditors can apply for a bankruptcy order if the debt owed to them is equal to or exceeds
the prescribed bankruptcy level, which is 100,000 Kenyan shillings. Additionally, the debt
must be for a liquidated amount, the debtor must appear unable to pay or have no reasonable
prospect of paying, and there should be no outstanding application to set aside a statutory
demand for the debt.

Can a debtor apply for bankruptcy voluntarily?

Yes, a debtor can apply to the court to be declared bankrupt voluntarily. They need to prove
to the court that they are unable to pay their debts by providing a statement of their financial
position, detailing their debts, assets, liabilities, and creditors. The debtor must also publish a
notice of their application in newspapers circulating within the region they reside.

What happens if a bankruptcy order is granted by the court?

If a bankruptcy order is granted by the court, the individual will be declared bankrupt. They
will be subject to the provisions of the Insolvency Act, and their financial status will become
publicly known through notices published in newspapers.

What is the role of the court in the bankruptcy process?

The court plays a crucial role in the bankruptcy process. It reviews applications for
bankruptcy orders, assesses the debtor's financial position, and determines whether the
criteria for bankruptcy are met. The court may allow or dismiss bankruptcy applications
based on the evidence presented and ensure that the interests of all parties involved are
considered.

Under what circumstances may a court decline an application for bankruptcy in

Kenya?

The court may decline an application for bankruptcy if the total value of the applicant's
unsecured debts is less than the small bankruptcy level. It can also be declined if the value of

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the applicant's estate is equal to or exceeds the prescribed minimum value. Additionally, if
the debtor has made a composition or scheme of arrangement with creditors in the five years
preceding the application or if it is appropriate to appoint an insolvency practitioner (IP) to
prepare a report, the court may decline the application.

Who is an insolvency practitioner (IP) in the context of bankruptcy in Kenya?

An insolvency practitioner (IP) is a trained professional appointed by the court to inquire into
the affairs of a debtor who is undergoing bankruptcy proceedings. The IP's role involves
investigating the debtor's assets, liabilities, and financial position. They prepare a report for
the court, suggesting whether the debtor should propose a voluntary arrangement to creditors
or whether a meeting should be convened with the creditors to consider the debtor's proposal.

What is the purpose of the report prepared by the insolvency practitioner (IP) in the
bankruptcy process?

The report prepared by the insolvency practitioner contains detailed information about the
debtor's assets, liabilities, and financial position. Additionally, it offers an opinion on whether
the debtor should propose a voluntary arrangement to creditors and whether a meeting should
be convened with the creditors to consider the debtor's proposal. The court reviews this report
to guide further decisions regarding the bankruptcy process.

What happens after a bankruptcy order is granted by the court in Kenya?

After a bankruptcy order is granted, the court may make further directions for the
management of the debtor's property and affairs. The court may appoint an interim trustee
(authorized IP) to take control of the debtor's property and handle their affairs to ensure
creditors are paid. The bankruptcy order takes effect immediately, and all the debtor's
properties, both inside and outside Kenya, become vested in the Official Receiver (OR). The
OR will publish the bankruptcy order in the Gazette and a newspaper circulating in the
debtor's area of residence.

What are the effects of a bankruptcy order on the debtor in Kenya?

The effects of a bankruptcy order are significant for the debtor:

 All properties are vested in the interim trustee appointed by the court, and the debtor
loses control over their assets.
 All legal proceedings against the debtor in respect of their debts are stayed, providing
protection to the bankrupt person from further suits.
 The bankruptcy order takes immediate effect from the date and time it is issued by the
court.
 The Official Receiver (OR) takes control of all the debtor's properties, both within
Kenya and outside.
 The OR publishes the bankruptcy order in the Gazette and a newspaper circulating in
the debtor's area of residence, informing the public of the bankruptcy. Additionally, the
debtor is required to lodge a statement of their financial position with the OR within a
specified deadline.

How long does the debtor have to lodge a statement of their financial position with the
Official Receiver (OR) after the bankruptcy order is made?

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 The debtor has 30 days from the date of receiving a copy of the bankruptcy order from the
court to lodge a statement of their financial position with the Official Receiver (OR). This
statement provides details of their financial affairs, assets, and liabilities.

What is the purpose of the Statement of Financial Position (FP) to be lodged by the
bankrupt in Kenya?

The Statement of Financial Position is used to list the assets, debts, and liabilities of the
bankrupt person. It includes particulars of the bankrupt's creditors and any securities given to
the creditors. This statement provides a comprehensive overview of the bankrupt person's
financial situation.

When should a bankrupt in Kenya lodge their Statement of Financial Position?

A bankrupt in Kenya should lodge their Statement of Financial Position within 14 days of
receiving the notice from the Official Receiver (OR).

After the Statement of Financial Position has been prepared and submitted, the bankruptcy
trustee will convene the first meeting of creditors within 30 days. This meeting allows all
creditors to come together and discuss the assets, liabilities, and debts of the bankrupt person.

Any person who claims to be the debtor's creditor is entitled to inspect the Statement of
Financial Position or make a copy of it.

What is the purpose of the first meeting of creditors in a bankruptcy proceeding in

Kenya?

The first meeting of creditors is essential to reconcile all creditors' claims and provide an
opportunity for them to explain their debts to the bankruptcy trustee. It allows creditors to be
aware of the bankruptcy and ensures a fair and orderly process for settling the debts of the
bankrupt person.

Who convenes the first meeting of creditors in a bankruptcy proceeding in Kenya?

The Official Receiver (OR) or the bankruptcy trustee is responsible for convening the first
meeting of creditors within 30 days after the bankrupt lodges the Statement of Financial
Position.

What assets can a bankrupt person in Kenya retain during bankruptcy?

A bankrupt person in Kenya is allowed to keep certain assets, including tools of trade,
household furniture, and personal effects. However, if their motor vehicles have a value
above KES 1,000,000, they may be used in bankruptcy. The bankrupt may keep these assets
only with the consent of the creditors if they exceed the amount set by the bankruptcy trustee.

What are the duties of a bankrupt in Kenya during bankruptcy?

The duties of a bankrupt in Kenya during bankruptcy include:

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  Having utmost integrity and honesty, disclosing all particulars and information relating
to their property to the bankruptcy trustee.
 Informing the bankruptcy trustee about any changes in their name, address, income, or
employment.
 Assisting in the realization of their property and the distribution of proceeds among
creditors.
 Delivering property to the bankruptcy trustee when demanded.
 Submitting details of their income and expenditure since the bankruptcy commenced.

What restrictions apply to a bankrupt during bankruptcy in Kenya?

During bankruptcy in Kenya, a bankrupt cannot enter into or carry out the management or
control of any business without the bankruptcy trustee's consent. They also cease to be
entitled to be involved in the management of any of their property without the trustee's
consent.

What is the purpose of the public examination of a bankrupt in Kenya?

The public examination of a bankrupt in Kenya is conducted if there are disputes in respect of
the debts owed or if the bankrupt person is refusing to cooperate with the bankruptcy trustee.
It allows the bankruptcy trustee and creditors to examine the bankrupt person, their conduct,
affairs, and property to resolve any disputes and ascertain the debts accurately.

What are some of the bankruptcy offences in Kenya?

Some of the bankruptcy offences in Kenya include:
 Failure by the bankrupt to lodge a statement of their Financial Position with the
bankruptcy trustee.
 Refusing to cooperate during questioning at creditors' meetings without a reasonable
excuse.
 Failing to comply with a summons issued by the bankruptcy trustee requiring
appearance for examination.
 Failing to produce required documents or provide information during examination.
 Giving false information during examination or any point during the bankruptcy
procedure.
 Engaging in gambling, living extravagantly, or unjustifiably spending money after
commencement of bankruptcy.
 Transferring or concealing any property or documents after the bankruptcy order is
made.

What is the order of priority for payment of a company's debts once its assets have been
realized in Kenya?

The order of priority for payment of a company's debts once its assets have been realized in
Kenya is as follows:
 The remuneration of the bankruptcy trustee and the fees and expenses incurred by the
trustee in performing their duties under the Insolvency Act.
 The reasonable costs of the person who applied to the Court for the bankruptcy order.
 In the case of a creditor who protected or preserved assets of the bankrupt, the amount
received by the bankruptcy trustee by the realization of those assets up to the value of

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 that creditor's unsecured debt, and the costs incurred by that creditor in protecting or
recovering those assets.

What are the second priority claims for payment once the first priority claims have
been settled?

The second priority claims for payment once the first priority claims have been settled
include:
1. All wages or salaries payable to employees in respect of services provided to the
bankrupt during the four months before the commencement of the bankruptcy.
2. Any holiday pay payable to employees on the termination of their employment
before, or because of, the commencement of the bankruptcy.
3. Any compensation for redundancy owed to employees that accrues before, or because
of, the commencement of the bankruptcy.
4. Amounts deducted by the bankrupt from the wages or salaries of employees to satisfy
their obligations to other persons, including amounts payable to the Kenya Revenue
Authority in accordance with the Income Tax Act.

What are the third priority claims for payment once the second priority claims have
been settled?

The third priority claims for payment once the second priority claims have been settled
include:
 Tax deductions made by the bankrupt under the pay-as-you-earn rules of the Income
Tax Act.
 Non-resident withholding tax deducted by the company under the Income Tax Act.
 Resident withholding tax deducted by the company under the Income Tax Act.
 Duty payable within the meaning of section 2(1) of the Customs and Excise Act.

What happens if a bankrupt person fails to cooperate with the bankruptcy trustee or
provide required information during examination?

If a bankrupt person fails to cooperate with the bankruptcy trustee or provide required
information during examination, it is considered an offence under the Insolvency Act. The
bankrupt may face legal consequences for such actions. Cooperation and compliance during
the bankruptcy process are essential for the orderly resolution of the bankruptcy case.

Corporate insolvency

When is a company deemed to be insolvent in Kenya?

A company in Kenya is deemed to be insolvent when it is unable to pay its debts. This can be
established in various situations, such as:
 When a creditor to whom the company owes Kshs. 100,000 or more serves a notice to
pay the debt, and the company fails to do so within 21 days. Additionally, if the
company's assets are equal to or less than the bankruptcy level, which is 100,000 Kenya
shillings.
 If execution or any other process issued by a court order remains unsatisfied, and a
notice has been served on the company by the debtor to settle the debt, but the company
fails to comply within 21 days.

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  When it is proven to the court's satisfaction that the company is unable to pay its debts
as they fall due, and its assets are less than the amount of its liabilities. Also, if an
execution process or judgment has been delivered against the company, and the
company fails to comply with that particular judgment.
 When the company is unable to operate as a going concern, meaning its liabilities
exceed its assets.

What is the liability of present and former members of a company during corporate
insolvency in Kenya?

During corporate insolvency in Kenya, both present and former members of a company are
jointly liable to contribute to the company's assets to settle its debts and liabilities, as well as
the expenses of the liquidation. However, there are exceptions to this liability:
 A former member who ceased to be a member for twelve months or more before the
commencement of the liquidation is not liable to contribute.
 A former member is not liable to contribute in respect of any debt or liability of the
company contracted after the person ceased to be a member.
 A former member is not liable to contribute unless it is evident to the court that the
existing members are unable to satisfy the required contributions.

What factors exempt a former member from liability during a company's insolvency in
Kenya?

There are three main factors that can exempt a former member from liability during a
company's insolvency in Kenya:
 If the former member left the company at least 12 months before the commencement of
the liquidation.
 If the former member can prove that they did not participate in the transaction that led to
the debt being accrued by the company.
 If the former member can demonstrate to the court that the existing members are unable
to satisfy the company's debt, and thus the assistance of former members is required to
settle the debt.

What is the difference between members' voluntary liquidation and creditors'

voluntary liquidation in Kenya?

The main difference between members' voluntary liquidation and creditors' voluntary
liquidation in Kenya lies in the initiation and control of the liquidation process:
 Members' Voluntary Liquidation: This occurs when the members of the company
themselves initiate the liquidation process through a resolution passed in a general
meeting. It requires a director's declaration that the company will be able to pay its debts
in full within a specified period, not exceeding twelve months.
 Creditors' Voluntary Liquidation: In this case, the creditors of the company take
action to initiate the liquidation process. They convene a meeting within 14 days after
the date when the members propose the voluntary liquidation. There is no director's
declaration involved, and the creditors' committee takes over the affairs of the company
during the liquidation process.

What is compulsory liquidation, and how does it differ from voluntary liquidation in
Kenya?

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Compulsory liquidation, also known as involuntary liquidation, is the process of liquidating a
company through a court order. It is initiated when a company is deemed insolvent and
unable to pay its debts, and the court intervenes to dissolve the company and settle its
obligations. On the other hand, voluntary liquidation is a process where the members or
creditors of the company initiate the liquidation voluntarily, without court intervention. The
main distinction between the two lies in how the liquidation process is triggered - compulsory
liquidation through a court order and voluntary liquidation through the initiative of the
members or creditors.

Kenya moveable property security rights act, 2017

What is the primary purpose of the Movable Property Security Rights Act, 2017?

The primary purpose of the Act is to facilitate the use of movable property as collateral for
credit facilities, establish the office of the Registrar of Security Rights, and provide for the
registration of security rights in movable property.

Who benefits from the Movable Property Security Rights Act, 2017?

The Act benefits small and medium-sized enterprises (SMEs) which often face difficulty in
accessing finance from the formal sector.

What laws were repealed by the Movable Property Security Rights Act, 2017?

The Act repealed the Chattels Transfer Act (Cap. 28) and the Pawnbrokers Act (Cap. 529)
and also made amendments to several other laws, including the Agricultural Finance
Corporation Act, Stamp Duty Act, Hire Purchase Act, Business Registration Services Act,
Companies Act, and Insolvency Act.

What types of movable assets can be encumbered under the Act?

The Act allows for various types of movable assets to be encumbered, including tangible
assets like motor vehicles, crops, machinery, and livestock, as well as intangible assets like
receivables, deposit accounts, electronic securities, and intellectual property rights.

How is a security right created under the Act?

A security right under the Act is created by a security agreement, which must be in writing
and signed by the grantor. The agreement should identify the secured creditor and the grantor,
describe the secured obligation and the collateral.

How are security rights registered under the Act?

The Act establishes the Office of the Registrar for registering notices relating to security
rights. A single initial notice can be registered, and a public registry is established, allowing
searches by the identifier of the grantor or the serial number of the collateral to determine
priority.

What are the enforcement options available to a secured creditor under the Act?

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In case of default, a secured creditor can exercise various rights, including suing for money
owed, appointing a receiver of income, leasing the movable asset, or taking possession of the
movable asset.

What are the key objectives of the Movable Property Security Rights Act, according to
the Objects of the Act?

The key objectives of the Act, according to the Objects of the Act, are to enhance individuals'
and entities' ability to access credit using movable assets as collateral and to promote
consistency and certainty in secured financing related to movable assets.

What is the significance of the Movable Property Security Rights Act in Kenya's credit
sector?

The Act represents a departure from the traditional restrictive use of immovable property as
collateral and opens up opportunities for using movable property as collateral, especially for
MSMEs. It aims to make access to credit easier and more accessible for borrowers using
movable assets.

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LPM

Type of business association for a law firm

 Sole proprietorship
 Partnership – general, limited, LLP

What is legal management?

Legal management is the study of a combination of aspects of law and aspects of

management. It involves the legal framework that governs the managerial process, allowing
students to be in compliance with the law when running a law firm or any business.

What does legal practice management teach?

Legal practice management teaches students the skills and tools necessary to establish and
manage a law practice. This includes client care, employee welfare, compliance with legal
and regulatory requirements, application of business administration and management
principles, development of organizational structures, and business analysis and accounting
skills.

How can law practice management be split?

Law practice management can be split into three categories:

 Management of an organization/law firm/business, which involves law firm
management or law office management.
 Management of the legal work product, such as client care and service delivery.
 Acquisition and mastery of professional skills that enhance an advocate's managerial
skills, applicable across various professions.

What is the role of an office in a business?

An office plays multiple roles in a business, including being a communication center,

information center, administrative nerve center, control center, and intermediary. It serves as
a hub where clients direct their queries, records are curated, administrative work is
conducted, and decisions are made.

Why is the physical address required during the registration process?

The physical address is required during the registration process for practicality and
accountability. In case of any issues or disputes, it helps locate the advocate or the specific
office responsible for any misdeeds or actions.

What are the functions of an office?

The functions of an office can be divided into two main categories: a) Clerical/basic/routine
functions, including receiving, recording, sorting, distributing, sending, preparing, and storing
information. b) Administrative functions, such as controlling and safeguarding company
assets, personnel functions, developing and implementing policies and procedures, forms
design and control, and preparation of budgets and financial accounts.

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What is office management?

Office management refers to the planning, organization, coordination, and control of the
activities within an office. It involves managing resources, personnel, and means to achieve
the purpose for setting up the office effectively.

What is the most common type of business organization used for law firms in Kenya?

The most common type of business organization used for law firms in Kenya is a Limited
Liability Partnership (LLP).

What are the types of partnerships for law firms?

Law firms can be registered as Sole Proprietorship and Partnerships. Partnerships can further
be classified as General Partnership, Limited Partnership, and Limited Liability Partnership
(LLP).

What is a partnership deed, and what does it include?

A partnership deed is an agreement between the partners of a firm that outlines the terms and
conditions governing the partnership. It includes details such as the firm's name, partners'
names and addresses, nature of business, capital contributions, profit-sharing ratio, duties of
partners, and procedures for admission and dissolution of partners.

Can a law firm in Kenya be registered as a company?

Yes, a law firm in Kenya can be registered as a company. However, this decision should
consider the legal requirements and implications, as well as the nature of the legal practice
and the need for confidentiality.

What is the most common form of business association for a law firm?

The most common form of business association for a law firm in Kenya is the Limited
Liability Partnership (LLP). The LLP is popular among law firms due to several reasons:
 Limited Liability: The LLP provides partners with limited liability, which means their
personal assets are protected from the business's debts and liabilities. This offers a level
of financial protection to individual partners.
 Flexibility in Management: LLPs offer flexibility in management and decision-making.
Partners can choose to manage the firm collectively or appoint a designated managing
partner to handle day-to-day operations.
 Separate Legal Entity: An LLP is considered a separate legal entity from its partners.
This separation allows the firm to enter into contracts, own assets, and conduct business
in its own name, providing a more professional and credible image.
 Perpetual Succession: An LLP has perpetual succession, meaning it continues to exist
even if one or more partners leave or new partners join. This provides stability and
continuity to the law firm.
 Tax Benefits: LLPs offer pass-through taxation, where the profits or losses of the firm
are passed through to the individual partners' tax returns. This can be beneficial in terms
of tax planning and avoiding double taxation.

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 Ease of Registration: Registering an LLP is a straightforward process in Kenya, making
it easier for law firms to set up and commence operations.
 Professional Image: An LLP carries a more professional image compared to other
business associations. This can attract clients and enhance the firm's reputation in the
legal market.
Overall, the Limited Liability Partnership offers a balance of limited liability protection for
partners and the flexibility of a partnership, making it an attractive choice for law firms in
Kenya.

Organisation

What is the English definition of the word "organization"?

The English definition of the word "organization" is "a way of putting things together that
makes it the most cohesive, efficient, or effective to be able to handle."

How does organization relate to management aspects in a business, both in office

practice management and human resource management?

 Organization plays a crucial role in both office practice management and human resource
management.
 In office practice management, it involves looking at the office's layout, establishing an
organizational structure, and creating an organizational chart.
 In human resource management, organization ensures that employees are clustered
together in a manner that is cohesive and effective, establishing departments and sections
within the organization.

What are the features of an organization according to the International Organisation for
Standardisation (ISO) structure?

According to the International Organisation for Standardisation (ISO) structure, the features
of an organization are as follows:
 Unity of objectives: All employees within the organization work towards achieving a
common goal based on the organization's vision, mission, and objectives.
 Division of work: Work is distributed equally to ensure fairness and avoid overburdening
certain departments.
 Plurality of persons: Employees work together cohesively in teams to achieve the
common goal.
 Chain of command: Every employee knows who they report to, and the organizational
chart illustrates how the organization operates.
 Effective communication and coordination: The organization should have a well-
coordinated communication system to ensure timely and accurate information flow.
 Levels/hierarchy of authority/responsibility: The lines of authority and responsibility
should be clearly defined for each employee, and the span of control should be evident.

Why is it important to have good organization in an office?

Good organization in an office is important for several reasons:

 It facilitates effective administration and minimizes losses for the organization.

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  It optimizes the use of resources without wastage or idleness.
 It enhances employee specialization, ensuring they are assigned duties according to
their talents.
 It boosts workers' morale as their needs are well catered for.
 It encourages good industrial relations between employees and management.
 It ensures effective communication with employees and clients.
 It enables the effective coordination of activities to achieve company goals.
 It promotes overall productivity and stimulates initiative and creativity.

What are the symptoms of poor office organization?

The symptoms of poor office organization include:

 Poor industrial relations between workers and management.
 Delays and wastage of time.
 Poor quality of work due to lack of coordination.
 Low morale of workers because their needs are not being met.
 Misuse and mismanagement of resources due to poor leadership.
 Unequal distribution of work due to poor delegation.
 Low profits/huge losses due to inefficiency.
 Corruption and theft due to fraud and lack of control.
 Poor communication among workers and management.
 Stress in the office due to poor working conditions.
 Clerical errors and duplication errors.
 Unqualified staff and lack of clear objectives.

What are the steps involved in re-organizing an office?

The steps involved in re-organizing an office are as follows:

 Obtain an organization chart or create one if it's not available.
 Obtain the job description of each worker or list down their tasks through interviews.
 Analyze the duties performed by each worker, considering factors like time taken and
degree of difficulty.
 Identify organizational faults from the organization chart, such as unequal work
distribution or poor delegation.
 Review the company objectives and assess if the activities and jobs align with the
objectives.
 Consider alternative ways of re-organizing, such as reducing the number of workers or
introducing lean management techniques.
 Prepare a document with recommendations for management approval.
 Implement the changes by preparing a new organizational chart and job descriptions.
 Communicate the changes to the workers and provide training where necessary to reduce
resistance to change.
 Review and evaluate the effectiveness of the new policies and make further adjustments if
needed.

The Organization Chart

What is an organizational chart?

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An organizational chart is a visual representation of an organizational structure. It illustrates
the hierarchy of positions or roles within the organization and how they are interconnected.
The chart may include job titles, employee names, and lines depicting the flow of authority
and communication.

What are the different forms of organizational charts?

The different forms of organizational charts are as follows:

 Vertical Chart: Also known as a hierarchical organizational chart, it displays the
organization's structure in a pyramid form with lines of command proceeding from top to
bottom. The CEO occupies the top position, and employees like cleaners, messengers, or
clerks are at the bottom.
 Horizontal Chart: Also called a flat organizational chart, it presents the lines of
command from left to right in a horizontal format. This form illustrates the flows of
authority from the left to the right, essentially flipping the vertical chart on its side.
 Circular Chart: Also known as a spherical or concentric chart, this type is not very
common. The levels of responsibility and authority flow from the center of the sphere
outwards. The CEO is typically at the center, and employees like cleaners, messengers, or
clerks are on the outer fringes.
 Matrix Chart: The matrix chart is utilized when employees have more than one
manager. For example, in organizations where individuals work on different projects with
separate project managers while also reporting to a department head. It shows solid lines
for line functions and broken lines for staff functions.

What is the purpose of a vertical chart?

The purpose of a vertical chart, also known as a hierarchical organizational chart, is to show
the organization's structure in a pyramid form. It clearly displays the flow of authority from
the top, where the CEO or top management is situated, down to the lower levels of employees
such as cleaners, messengers, or clerks.

How is a circular chart different from other organizational chart forms?

A circular chart, also known as a spherical or concentric chart, is different from other
organizational chart forms in its representation of authority flow. In this chart, the authority
stems from the center and radiates outwards. The CEO or top management is positioned at
the very center, and the employees are located at the fringes of the circle.

When is a matrix chart used in an organization?

A matrix chart is used in an organization when employees have more than one manager or
when they have responsibilities in different functional areas. For instance, in an engineering
team, all engineers may report to the head engineer but also work on separate projects headed
by different project managers. The matrix chart helps illustrate this overlapping reporting
structure and facilitates more effective workflows.

What is an organizational structure?

An organizational structure refers to an organization's design, which includes its hierarchy,

rules, and responsibilities. It defines the relationships between different positions within the

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organization and how they work together to achieve the organization's goals. It encompasses
elements such as division of labor, departmentalization, chain of command, span of control,
and formal communication channels. The organizational structure determines the flow of
authority in the organization from top to bottom and describes the various functions and
departments.

What are the types of organizational structures?

There are several types of organizational structures, including:

 Tall organization structure: Characterized by a narrow span of management with many
levels of authority from top to bottom. Commonly found in large organizations, this
structure has more managers overseeing work, and the number of employees reporting to
each manager is relatively small.
 Flat organization structure: Characterized by a wide span of control and very few
levels of authority. Commonly found in small organizations, there are very few
managerial positions overseeing a significant number of employees.
 Line Organization/Military structure: Follows a traditional method where authority
and responsibility flow in a straight line from top to bottom. Each department is
independent and headed by a line manager, who may or may not be a qualified specialist.
 Staff/Function Organization: The organization is divided into specific functions, and
experts are appointed to manage or advise each function. This structure encourages
specialization and high-quality decision-making.
 Line and Staff Organization: Also known as a matrix organization structure, it
combines elements of both line and staff structures to get the benefits of both systems. It
encourages specialization and division of work but may also cause confusion due to dual
reporting.
 f) Organization by Committee: In this structure, committees are formed to perform
specific tasks within the organization. It promotes good communication, democratic
decision-making, and teamwork but may lead to slow decision-making and potential
conflicts within the committee.

What is the difference between an organizational chart and organizational structure?

 An organizational chart is a one-page visual representation that illustrates the flow of

authority from the top to the bottom of an organization. It shows the hierarchy of
positions or roles and how they are interconnected. On the other hand, organizational
structure refers to the overall design of an organization, including its hierarchy, rules, and
responsibilities. It defines the relationships between different positions and how they
work together to achieve the organization's goals.

Types Of Ownership Models

What is ownership, and what are the two types of objects that can be subjects of
ownership?

Ownership is the legal right of a person, family, business, or government to possess

something.

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There are two types of objects that can be subjects of ownership: tangible property, which
includes items like real estate and automobiles, and intangible property, which includes
patents, copyrights, and trademarks.

What is the difference between purchasing and leasing?

Purchasing involves the transfer of title for a good or piece of property, giving the buyer
complete ownership. On the other hand, leasing grants the right to use an asset or property
without transferring ownership. The lessee pays rental fees to use the asset, and the lessor
retains ownership.

What are the advantages of leasing office space over buying?

The advantages of leasing office space include cost savings, as leasing is typically less
expensive than purchasing. Leasing also allows for professional performance and flexibility,
as businesses can choose a desirable location and specific amenities. Additionally,
maintenance and repairs are usually the responsibility of the owner or property manager in a
leased space.

What are the advantages of leasing office space over buying?

 Lack of control: When you lease office space, you have limited control over the
property. The landlord has the authority to make decisions about the property, such as
increasing the rent, making changes to the building specifications, or putting the property
up for sale. This lack of control can be a disadvantage for businesses that want more
autonomy over their space.
 Limited customization: Unlike owning a property, leasing restricts the degree of
customization you can make to the space. Most landlords are hesitant to allow significant
alterations to the structure, which may limit your ability to tailor the space to your
specific business needs.
 Commitment: Signing a lease agreement binds you to a contractual commitment for a
specified period, which is typically for a year or more. Breaking the lease agreement
before the agreed-upon period can result in financial penalties, making it costly to exit the
lease early.
 Delay in repairs: While landlords are usually responsible for maintenance and repairs in
the leased building, there can be delays in addressing defects or issues that arise. This
may lead to inconveniences for the lessee, as they have to wait for the landlord to take
action.
 Prompt monthly payments: As a lessee, you are obligated to make regular and timely
rent payments, which are typically due monthly (or quarterly, depending on the lease
agreement). This fixed expense can be burdensome, especially during months when the
business might be experiencing financial challenges or downturns.

Overall, leasing offers flexibility and cost-saving advantages, but it also comes with
limitations and potential financial obligations that businesses need to carefully consider
before committing to a lease agreement.

What are some considerations to take into account when choosing between leasing and
buying office space?

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Some considerations include the duration of the need, the firm's growth rate, and the local
economy. Leasing may be more cost-effective in the short term, while purchasing may be
more cost-effective for establishing permanent or semi-permanent offices. Additionally, the
local real estate market's stability and growth potential can influence the decision.

What are some of the legal requirements and due diligence to consider when leasing
office space?

Legal requirements include reviewing the lease agreement thoroughly, understanding the
terms and conditions, and ensuring that all legal documentation is in order concerning
building ownership and liabilities. Due diligence involves inspecting the premises for
condition, security, and accessibility, as well as considering insurance coverage and
emergency measures.

Front Office Services

What factors should be considered when selecting an office location for a law firm?

Some factors to consider when selecting an office location for a law firm are:

 Security: Ensuring the protection of sensitive client documents and the safety of
employees and clients.
 Accessibility: Making the office easily accessible to all, including individuals with
disabilities.
 Access to the market, utilities, auxiliary services, and social amenities: Considering
the availability of skilled labor, utilities like water and electricity, and proximity to banks,
post offices, and social spaces.
 Good communication network: Having a reliable communication infrastructure for
local and international interactions with clients.
 Cost of rent, rates, and tax: Ensuring that the location fits within the firm's budget.
 Space: Considering the space needed for the current and potential future expansion of the
business.
 Reduced noise: Providing a conducive environment for virtual meetings and effective
communication.
 Physical facilities: Ensuring the presence of necessary facilities like toilets and lifts.
 Availability of skilled labor: Locating in areas with access to a skilled workforce.
 Ownership model: Considering whether to lease, rent, or purchase the office space.

Why is security an important factor to consider when selecting an office location for a
law firm?

Security is an important factor to consider when selecting an office location for a law firm
because law firms often deal with sensitive and confidential client information, such as title
deeds and legal documents. Clients trust law firms to safeguard their valuable assets and
personal information. Selecting a location with good security measures helps protect the firm
from theft, unauthorized access, or loss of important documents. Additionally, ensuring the
safety of employees and clients within the premises is crucial for maintaining a professional
and trustworthy reputation. A secure office location provides peace of mind to both clients
and employees, fostering a sense of trust and reliability in the services offered by the law
firm.

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What are the advantages and disadvantages of freehold ownership for an office space?

Advantages of freehold ownership:

 Savings in terms of rent that the owner does not have to pay.
 Owner has freedom to design or modify the layout of the premises without
interference.
 Wise investment for the future as the premise is an asset.
 Additional revenue can be obtained by subletting.
Disadvantages of freehold ownership:
 Expensive in terms of construction or purchasing.
 Expensive in terms of rates and taxes.
 Expensive in terms of maintenance and repair.
 The owner may experience disputes with tenants.
 There is a degree of inflexibility in location and layout.

What are the advantages and disadvantages of leasing or renting a building for an office
space?
Advantages of leasing or renting:
 Savings in terms of rates, taxes, and maintenance and repair costs.
 No need for very high capital to start the business.
 No problem of disputes with tenants.
 Flexibility if the tenant intends to move.
 The tenant does not have to pay insurance for the building.
Disadvantages of leasing or renting:
 High cost of rent payable every month.
 Restriction by the landlord in modifying the office.
 The landlord may terminate the lease agreement at any time.
 Lack of privacy.
 The office may be unsuitable in meeting the special needs of the organization.
 The landlord may restrict the tenant from subletting, hence no extra income.

What are the advantages and disadvantages of locating a law firm in a town or urban
office?
Advantages of town/urban offices:
 Central location convenient for most clients to access the office easily.
 Near government offices, which may be beneficial for legal matters.
 Improved ICT infrastructure.
 Networking opportunities with other professionals.
 High population in cities increases brand recognition and clientele.
 Access to markets and availability of skilled labor.
Disadvantages of town/urban offices:
 Higher crime rates and security concerns.
 Higher cost of commodities and rent compared to outskirts.
 Overcrowding and limited space for expansion.
 Noise and air pollution due to overcrowding.
 Higher competition with many law firms in big urban areas.

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What are the physical components that should be considered when providing a
conducive working environment in an office?
The physical components to be considered are:
 Lighting (both natural and artificial).
 Noise control (internal and external).
 Hygiene and sanitation for health and reduced spread of diseases.
 Proper ventilation and temperature control.
 Suitable office furniture for comfort, safety, and document security.
 Decor to enhance the vibrancy and mood of employees and create a good impression
on clients.
 Accessibility and layout planning for decentralized offices.
R

Types Of Offices

ege
What are the types of occis?

 Co-working spaces

 Enterprise suite

 Private office

 Virtual office

 Home office

 Serviced office

 Cellular office –

 Combi office

ersponse
What are co-working spaces, and what services do they offer?

Co-working spaces are shared office spaces provided by third-party providers where
entrepreneurs and businesses can rent a single desk or multiple desks. These spaces offer all
the necessary services required to run a functional office, such as access to state-of-the-art
facilities, break rooms, and refreshments. They may also provide private fully partitioned
offices for those who need more privacy.

What are the advantages and disadvantages of using co-working spaces?

Advantages of co-working spaces:
 Cost-effective for startups and businesses that don't require a lot of space.
 Access to shared facilities and services provided by the space owners.
 Networking opportunities with other professionals in the shared space.
Disadvantages of co-working spaces:

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  Inadequate privacy, which may be a concern for professions like law where
confidentiality is essential.
 Poor security measures due to multiple enterprises co-sharing the space.
 Potential eavesdropping and vulnerability to theft of items or information.

What is a virtual office, and how is it different from other types of offices?
A virtual office is a type of office without a physical location, where all activities are
conducted in a virtual platform. It provides services of a managed office, including front desk
services and a business address, without the need for a physical workspace. It is suitable for
businesses that primarily operate remotely or in the field.

What is a home office, and how does it function for business purposes?
A home office is a designated space within an individual's residence used for business
purposes. It serves as a place to work and conduct business activities from the comfort of
one's home. This setup is beneficial for individuals who do not require a separate physical
location for their work and want to save costs on renting or buying office space.

Describe the features and layout options of a serviced office.

A serviced office is a managed office space supported by an on-site service team. It comes
with flexible leases and easy billing procedures. The office space, as well as communal areas,
are looked after by the service team. It typically includes a dedicated receptionist to manage
front desk services. Serviced offices can be customized and come with various layout
options, such as private closed-plan offices, open-plan workstations, and a combination of
different layouts based on the needs of the businesses or individuals renting them.

What are some examples of other types of offices, and how do they differ in layout and
design?
 Cellular office: Individual or multi-person offices arranged along a building's outer
wall accessible via a shared corridor.
 Combi offices: A mix of cubicles and open plans or a combination of different
layouts to optimize benefits and address specific needs.
 Modern open-plan designs: Incorporating different work and communication zones,
allowing employees to choose the most suitable setting for their current activities.
Examples like Google have sleeping pods, open-plan spaces, and meeting rooms to
cater to various work needs.

Front office

What is the front office, and why is it important in an organization?

The front office, also known as the lobby or reception area, is the first location that anyone
visiting the office sees. It forms the first impression of an institution or organization and
serves as the first point of contact with customers. It is essential for the front office to be
appropriately designed and staffed with well-trained employees to create a positive image of
the organization and provide necessary information to clients.

What are front office services, and what functions do they encompass?
Front office services refer to business-related activities conducted at the front desk, including
customer services, sales and marketing, finance, and technical services. Customer service at
the front desk involves attending to visitors, answering inquiries, and guiding them to the

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appropriate departments. Sales and marketing activities may include providing information
about the organization's services and distributing brochures. Finance-related tasks may
involve receiving payments from visitors.

Why is it important to have an attractive and well-decorated reception area?

An attractive and well-decorated reception area is essential because it attracts visitors and
customers, creates a positive image and reputation for the organization, and saves customers'
time by providing the right information and guidance. A visually appealing reception area
helps make visitors feel comfortable and welcomed, enhancing their overall experience with
the organization.

What are some facilities and equipment commonly found in a reception office layout?
A reception office layout may include facilities like a lounge for visitors, a telephone for
communication, flowers and decorations for aesthetics, a visitors' register, a computer for
booking appointments, a diary or appointment book, reading materials, a calendar, a wall
clock, a telephone directory, a year planner, and a message pad or book. Other facilities like
washrooms, pay phones, water dispensers, and vending machines may also be available.

What are the important procedures for receptionists when attending to visitors?
The procedures for receptionists when attending to visitors include welcoming the visitor,
enquiring about their name and how they can be assisted, solving their problems if possible,
asking them to sign the visitor's register and providing a badge, checking if they have an
appointment with an officer, offering the visitor to wait in the lounge, informing the relevant
officer about the visitor, escorting the visitor to the officer's office if available, and recording
any new appointments in the diary.

How should receptionists handle unexpected visitors, visitors with emergencies, and
unwanted visitors?
Receptionists should greet unexpected visitors warmly, enquire about their needs, and
provide appropriate assistance or direct them to the relevant officer if required. In cases of
visitors with emergencies, receptionists should not attempt to provide medical help but
should call for emergency services if needed. For unwanted visitors, receptionists should
communicate with them calmly, attempt to de-escalate any situations, and seek assistance
from security if necessary.

Centralisation Of Office Functions

What is centralization of office functions, and how can it benefit an organization?

Centralization of office functions refers to the practice of situating related services in a single
central office. It can benefit an organization in several ways, such as achieving economy in
the use of office equipment and machinery, equal distribution of work to reduce the need for
overtime, encouraging specialization and expertise, ensuring uniformity of work and
standardized procedures, and economizing on staffing by requiring fewer workers in a
centralized office.

What are some advantages of centralizing office functions?

Some advantages of centralizing office functions include better control of office resources
and records, easy supervision of staff due to their centralized location, no duplication of work
as tasks can be handled by the central office, easy training of new workers due to proximity

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to experienced staff, and job flexibility through job rotation within the centralized
department.

What are the potential disadvantages of centralizing office functions?

Some potential disadvantages of centralization include more movement from one department
to another, making it harder to locate the centralized office, unsuitability for tasks requiring
privacy and confidentiality, the possibility of misplacing records due to a high volume in a
central office, delays in work distribution, a high cost of messengers needed to distribute
work to user departments, and a risk of loss in case of disasters like fires.

How can centralization impact communication and smooth flow of work within an
organization?
Centralization can positively impact communication and the smooth flow of work by
eliminating the need for departments to perform similar tasks separately. It encourages
standard procedures and prevents duplication of work. Additionally, it makes it easier to cater
to staff absenteeism as work is distributed among present staff in the central office.

Provide an example of an organization that uses decentralized office functions and

explain its benefits.
The Kenya School of Law uses decentralized office functions, where each department has its
machinery, equipment, and staff. In this setup, administrative assistants can interact with
important individuals in the legal sphere due to the decentralized nature of their work. This
exposure allows for better job development and fosters communication between different
departments.

What are some examples of centralized services in an organization?

Some examples of centralized services in an organization include a typing pool, filing
registry, mailing services, mail room equipment, and telephone switchboard facilities.
Telephone switchboards, such as PBX (Private Branch Exchange) and PAX (Private
Automatic Branch Exchange), are critical components of a modern switchboard setup.

What factors are considered when deciding to centralize office services?

When deciding to centralize office services, several factors are taken into consideration to
assess whether centralization is the most suitable approach for an organization. Some of the
key factors considered include:
 Efficiency and Cost Savings: One of the primary reasons for centralization is to achieve
economies of scale and cost savings. By centralizing certain office functions, an
organization can benefit from shared resources and reduced duplication of equipment and
personnel.
 Workload and Work Distribution: The volume and nature of work in different
departments or units are analyzed to determine whether centralization can lead to a more
balanced and efficient workload distribution.
 Standardization: If the organization requires a high level of standardization in its
processes and procedures, centralization can help ensure uniformity and consistency in
the way tasks are performed.
 Specialization and Expertise: Some tasks may require specialized skills or expertise.
Centralizing these functions can allow for the concentration of qualified personnel in one
office, leading to improved performance.

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 Communication and Coordination: The impact of centralization on communication and
coordination between different departments or units is evaluated. Centralization should
not hinder effective communication and collaboration.
 Flexibility and Responsiveness: The ability of the central office to handle varying
workloads and respond promptly to different needs is considered. It should be able to
adapt to changing demands.
 Privacy and Confidentiality: Certain tasks or information may require privacy and
confidentiality. Centralization may not be suitable for tasks that involve sensitive or
confidential data.
 Proximity to Clients: If the organization serves different geographic locations or clients,
centralization might affect accessibility and convenience for clients. This aspect is
assessed to ensure client satisfaction.
 Potential Impact on Employee Morale: The effect of centralization on employee
morale is also taken into account. Some employees may prefer a decentralized setup that
allows for more autonomy and personalized work environments.
 Risk Management: The potential risks associated with centralization, such as the risk of
data loss or service disruption, are evaluated. Adequate measures should be in place to
mitigate these risks.
 Organizational Structure and Culture: The organization's structure and culture play a
vital role in determining the feasibility of centralization. Some organizations may have a
culture that favors decentralization or a hybrid approach.
 Technological Support: The availability of technology and systems that facilitate
centralization, such as robust communication and information-sharing tools, is
considered.
In summary, the decision to centralize office services involves a careful analysis of various
factors, considering the organization's unique needs, objectives, and constraints. It is essential
to strike a balance between centralization's benefits and potential drawbacks to make an
informed and effective decision.

What are the advantages and disadvantages of centralised and decentralised office
functions?
Advantages of a centralised office:

 Smooth flow of work and easy supervision since staff sit in a pool
 Work for absent staff is easily distributed to the pool of staff
 Equal distribution of work at the pool
 Fewer workers thus cost effective
 Uniformity of work
 Encourages specialisation - efficiency of the qualified people
 No duplication of work
 Easy training of new staff by the pool staff
 Flexibility on job since staff are rotated to do various jobs in the department
 Better control of office resources and records due to close monitoring

Disadvantages of a centralised office:

 Too much movement to the department from other departments in relation to the
centralised work
 Boredom and monotony of work
 Uniform procedures encourages lack of flexibility in the work done.

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  High number of messengers needed to distribute work to the user offices.
 It takes long to retrieve documents from a central office
 High probability of misplacing documents due to high volume records
 There tends to be no accountability incase of mistake.
 High risk of loss in the event of a distorter eg fire
 Lack of exposure to other departments and senior executives; may hinder growth.

Decentralisation Of Office Functions

What is decentralization or departmentation in the context of office management?

Decentralization or departmentation in office management refers to the organizational

structure where each department operates independently and provides its own services. Each
department has its own set of resources, such as machinery and human resources, and
performs its designated functions without relying heavily on a centralized office.

What are some advantages of a decentralized office setup?

The advantages of a decentralized office setup include:

 Suitable for handling work of a confidential nature.
 No delays in retrieving information as departments can access their data directly.
 Spreading of risks in case of a disaster, reducing the chances of losing all documents
at once.
 Minimization of movement of workers between different offices, leading to increased
efficiency.
 More accountability in case of mistakes, as responsibility is distributed among
different departments.
 Less noise compared to a centralized office, as each department operates
independently.
 Reduction of boredom and monotony of work due to employees performing a variety
of tasks.

What are some disadvantages of a decentralized office setup?

The disadvantages of a decentralized office setup include:

 Uneconomical use of machines and equipment, as individual departments require
their own resources.
 Duplication of work, where similar tasks may be performed separately by different
departments without communication.
 Difficulty in supervision due to workers being spread across different departments.
 Hindrance to the smooth flow of work as coordination between departments might be
challenging.
 Difficulty in training new workers, as they need to seek out information from various
individuals.
 Lack of uniformity of work, leading to inefficiencies and discrepancies in task
performance.
 Uneconomical in staffing, as each department might require its own set of employees.
 Lack of flexibility in job rotation, as employees may be confined to their specific
departments.

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  Unequal distribution of work, potentially leading to overtime for some departments
while others remain less busy.
 Hindrance to specialization, as employees may not have opportunities to focus on
specific areas of expertise.

How does decentralization support work of a confidential nature?

Decentralization supports work of a confidential nature because each department operates

independently, and sensitive information is confined within that department. This reduces the
risk of unauthorized access to confidential data, as only relevant personnel within the specific
department have access to it.

How can an organization minimize the disadvantages of a decentralized office setup?

An organization can minimize the disadvantages of a decentralized office setup by

implementing effective communication channels between departments, encouraging
collaboration, and adopting standardized procedures to ensure uniformity in task
performance. Additionally, proper training programs can help employees familiarize
themselves with different areas, improving flexibility and efficiency in case of staff
absenteeism or work distribution.

What are the advantages and disadvantages of centralised and decentralised office
functions?

Advantages of a decentralised office:

 More accountable to mistakes

 Suitable for confidential work
 Improves the persons contact with staff of other departments and the executive,
increasing chances of growth.
 There is a spreading of risk should a disaster strike
 Opportunity to learn new talents because staff have different tasks
 Few messengers required since no work needs to be distributed
 Minimises movement of staff going to other departments
 It reduces boredom and monotony of work due to a variety of tasks
Disadvantages of a decentralised office:

 Duplication of work
 Lack of flexibility in job rotation
 Unequal distribution of work leading to increased overtime costs
 Difficult to train new staff
 Difficult to handle absenteeism
 Difficult to supervise since each worker has different tasks
 Hinders specialisation
 (viii)Lack of uniformity of work hinders efficiency.
 Uneconomical in staffing since every office will need for example a clerk, a typist etc

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Legal Framework Governing Front Office

What legal framework governs front office management in law firms?

The legal framework governing front office management in law firms includes licensing
requirements, safety standards, the right to information, advertisement regulations, right to
privacy, freedom from discrimination, and client-centered lawyering.

What is the significance of licensing in front office management for law firms?

Licensing is essential for law firms as it allows them to operate legally and ensures
compliance with regulations set by professional bodies. For legal practitioners, having a valid
practicing certificate and proper registration is necessary to validate their practice in Kenya.

How does the right to information play a role in front office management for law firms?

The right to information is crucial in client-centered lawyering as it allows legal practitioners

to provide their clients with the necessary information to make informed decisions. Article 46
of the Constitution, which talks about consumer protection, emphasizes the importance of
clients having access to relevant information.

How does the right to privacy affect front office management in law firms?

The right to privacy is a fundamental aspect of front office management for law firms. Legal
practitioners must maintain client confidentiality and not disclose any information provided
by clients. However, there are exceptions in certain situations, as stated in sections 134 to 137
of the Evidence Act.

What are some modern trends in Customer Service Management (CSM) that can
impact legal practice?

Some modern trends in Customer Service Management that can impact legal practice include
crisis management customer service, the use of chatbots and artificial intelligence, remote
and freelance customer service agents, higher focus on customer success, customer self-
service options, social media customer service, real-time customer support, personalized
customer service, video and streaming communication, and omni-channel support systems.

How can ICT impact modern legal practice?

ICT (Information and Communication Technology) can have a significant impact on modern
legal practice by enabling better client engagement, efficient data collection, improved
service delivery through online platforms, constant availability of services, reduced cost in
customer service management, positive effects on business establishment, and an increase in
the client base and profits due to appealing to a broader range of customers.

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Standards, Policies And Procedures

What is a standard, and how can it be classified based on its scope?

A standard is a written limit or benchmark. Standards can be classified into three aspects:
national standards (e.g., the Constitution and statutes), international standards (treaties or
conventions ratified by Kenya), and personal standards that impact individual businesses.

Give examples of national and international standards in Kenya.

National standards in Kenya include the Constitution and statutes, while international
standards consist of treaties or conventions that Kenya has ratified.

What is the role of the Judiciary in ensuring compliance with standards in Kenya?

The Judiciary plays a crucial role in ensuring compliance with standards. It enforces
judgments that penalize individuals or entities that fail to comply with set standards. Cases
that go to court often involve breaches of specific laws, which are essentially breaches of
standards set out in acts of parliament.

How are standards developed in Kenya, and who are involved in the process?

Standards are developed by technical committees that comprise representatives from various
stakeholders. These committees consist of individuals from both the public and private
sectors who come together to develop standards. Parliamentarians also play a role in putting
legislation in place to guide standards.

Explain the different categories into which standards can be broken down in Kenya.

Standards in Kenya can be categorized into six types:

 Glossaries or definition of terminology, which clarify the meanings of common words
used in legislation.
 Dimensional standards, which refer to measurements in three-dimensional space.
 Performance standards, used to identify minimum thresholds in management spheres.
 Standard method of test, where the same testing method is used to obtain consistent
results.
 Codes of practice, such as the Standards of Professional, Ethical Conduct (SOPEC)
for advocates.
 Measurement standards, which define measurement units like kilograms, liters, or
meters.

Can you name some organizations in Kenya that are involved in developing standards?
Some organizations in Kenya that are involved in developing standards include the Kenya
Bureau of Standards, National Environment Management Authority (NEMA), Council of
Legal Education, Federation of Kenyan Employers, NGO Coordination Board, Central
Organization of Trade Unions, Law Society of Kenya, Commission for University Education,
and Institute of Public Accountants Kenya, among others.

How is a policy defined, and what are its main objectives?

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A policy is defined as a documented general approach taken within an organization or
government to address a specific issue. Its main objectives are to regulate and guide
operations, provide guidance towards an organization's mission, guide the implementation of
strategies, and provide controlling mechanisms for behavior and conduct.

What is the formulation process of a policy?

The formulation process of a policy involves several steps:

 Identifying the problem
 Setting an agenda to draft the policy
 Conducting research to develop best practices and solutions
 Drafting the policy paper
 Presenting the policy paper to management for adoption
 Communicating the policy to stakeholders and affected parties
 Sensitizing and implementing the policy
 Monitoring, evaluating, and learning from the outcome of the policy's
implementation.

How can a policy mutate into law, and what are the steps involved?

For a policy to mutate into law, it can take the following steps:
 Consultation with stakeholders and experts
 Adoption of the policy by the government or opposition side
 Popularization of the policy
 Introduction of a bill to parliament, accompanied by a memorandum of objects and
reasons
 Three readings in parliament
 Presidential assent
 Commencement of the law.

What are the components or elements typically included in a policy?

A policy typically includes the following components:

 Policy name
 Effective date and revision date
 Purpose of the policy
 Main policy statement
 Definitions of key terms
 Scope of permissible exceptions and the authority to make them
 Committee responsible for ensuring compliance
 Office or authority responsible for implementation and monitoring.

What are some challenges that can be faced during policy implementation?

Policy implementation challenges can arise from constraints experienced from parent
organizations, regulatory bodies, conflicting government policies, and legislation.
Implementation problems can also be initiated by corruption, lack of continuity, inadequate
resources (human and material), lack of legal framework to support implementation

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mechanisms, poor stakeholder participation, lack of public awareness, and ignoring input
from the target population, among others.

How are procedures defined, and what is their primary purpose?

Procedures are defined as the methods or guidelines used to enforce legal rights, carry out a
lawsuit, or implement a policy. Their primary purpose is to provide a set of official or
accepted actions that organizations or governments follow to address specific issues or to
implement policies effectively.

What attributes should good procedures possess?

Good procedures should have the following attributes:

 Articulate: Clearly written and easy to understand.
 Simple: Straightforward and not overly complex.
 Accurate: Free from errors and based on accurate information.
 Consistent: In line with organizational objectives, public policy, and relevant statutes.

What is the formulation process for procedures?

The formulation process for procedures involves the following steps:

 Identifying the need for a procedure within the organization.
 Obtaining support and approval from senior management to draft the procedure.
 Defining the scope of the procedure.
 Collecting and documenting relevant information.
 Preparing a draft of the procedure.
 Obtaining feedback and comments on the draft.
 Getting authorization to use the procedure.
 Distributing the procedure.
 Sensitizing and educating the affected parties about the procedure.
 Periodically reviewing the procedure to ensure its viability.

How does the legal framework influence standards, policies, and procedures?

The legal framework, particularly the Constitution and other written laws, provides the
guiding architecture for standards, policies, and procedures. The Constitution holds supreme
authority, and all other laws must conform to it. Acts of Parliament, such as the Standards
Act, Legal Education Act, Employment Act, and others, set the standards that organizations
and individuals must adhere to.

Why is it essential to continuously review standards, policies, and procedures?

Continuous review of standards, policies, and procedures is essential because the law is
dynamic, and societal needs are constantly changing. Keeping up with these changes ensures
that the standards, policies, and procedures remain relevant, effective, and compliant with the
evolving legal landscape and the challenges posed by globalization.

What are the standards that regulate fees charged by advocates for their legal services?

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The standards that regulate fees charged by advocates for their legal services are prescribed in
the Advocates Act and the Advocates Remuneration Order. Section 36(2) of the Advocates
Act prohibits charging fees below the prescribed rates in the Advocates Remuneration Order.

How many accounts should an advocate have, and what are they used for?

An advocate should have at least three accounts:

1. Personal account - where the advocate's salary is deposited.
2. Office account - used for payments related to services rendered or to be entered.
3. Client account - where all money held for clients is deposited.

What options does an advocate have for charging fees according to the Advocates Act?

An advocate may exercise three options for charging fees according to the Advocates Act:
1. Using the Advocates Remuneration Order.
2. Entering into an agreement with the client regarding the cost (mutual agreement).
3. Charging ex gratia (as a favor or gift).

What rules and orders strictly legislate the management of a client's money by
advocates?

The management of a client's money is strictly legislated by the following:

 Advocates Accounts Rules
 Advocates Deposit Rules
 Advocates Accounts (Certificate) Rules
 Advocates Remuneration Order

What documents and certifications should an advocate possess to practice law?

An advocate should have the following documents and certifications to practice law:
1. Annual license.
2. Accounting certificate (for practicing in their name).
3. Payment of dues to the Law Society of Kenya.

What elements should be included in a policy related to accounts management for

advocates?

A policy related to accounts management for advocates should include:

 Transparency and accountability provisions.
 An accountant's certificate for the annual license application, following an audit of
accounts.

Which procedures apply to advocates as members of the Law Society of Kenya?

Most procedures that apply to advocates are under Sections 35 to 42 of the Advocates Act
and the SOPEC (Standards of Professional Ethics and Conduct). These procedures are
applicable to all advocates who are members of the Law Society of Kenya.

What are the consequences for an advocate who undercuts the prescribed fees?

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Undercutting prescribed fees is an offense, and advocates who do so may be subject to
disciplinary proceedings as provided in Section 36(1) of the Advocates Act and Rule 3 of the
Advocates (Practice) Rules.

Can you provide an outline of a policy example from the Kenya School of Law?

Sure, here is an outline of a policy example from the Kenya School of Law:
 Cover Page
 Table of Contents
 Forward
 List of Abbreviations
 Interpretation of Definitions
 Brief Introduction
 Purpose of the Document
 Scope (Applicability)
 Objectives of the Policy Document
 Policy Statements
 Committees (if applicable)
 Functions
 Establishment
 Eligibility Criteria
 Eligible Applicant
 Eligible Matters
 Financial Eligibility
 Merits
 Client Files
 Statutory and Ethical Obligations
 Implementation Clause
 Review of the Policy
 Formalities

Information Communication Technology

What is Information Communication Technology (ICT)?

Information Communication Technology (ICT) encompasses all technologies used for the
automation and communication of information in various fields and industries.

How has the covid pandemic influenced the adoption of automation in organizations?

The covid pandemic has accelerated the adoption of automation in organizations, prompting
them to streamline processes and adapt to remote work requirements.

What is the role of automation in ICT, and can you provide an example of automation
in a law firm?

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Automation in ICT refers to using machinery or software to replace manual work. An
example in a law firm could be automating the process of receiving and processing
applications online rather than doing it manually in person.

What legal framework governs ICT in Kenya?

The legal framework governing ICT in Kenya includes the Constitution of Kenya, the Access
to Information Act, the Kenya Information and Communications Act, the Computer Misuse
and Cybercrimes Act, and the Data Protection Act.

What is the purpose of the Access to Information Act in Kenya?

The purpose of the Access to Information Act is to give effect to the right of access to
information by citizens as provided under Article 35 of the Constitution. It also provides a
framework for public entities and private bodies to proactively disclose information and
facilitate access to information held by private bodies.

Which institution is granted oversight and enforcement powers under the Access to
Information Act in Kenya?

The Commission of Administrative Justice is granted oversight and enforcement powers

under the Access to Information Act.

What is the role of the Communications Authority of Kenya established under the
Kenya Information and Communications Act?

The Communications Authority of Kenya is responsible for regulating the communications

sector in Kenya, including licensing communication-related systems and services and
overseeing resources for numbering and frequency spectrum.

How does the Computer Misuse and Cybercrimes Act protect the rights guaranteed
under the Constitution of Kenya?

The Computer Misuse and Cybercrimes Act protects the rights under Article 33, 34, and 35
of the Constitution of Kenya by facilitating the prevention, detection, investigation,
prosecution, and punishment of cybercrimes and protecting the confidentiality, integrity, and
availability of computer systems, programs, and data.

What is the purpose of the Data Protection Act in Kenya?

The Data Protection Act regulates the processing of personal data, ensures the protection of
privacy, and provides data subjects with rights and remedies to protect their personal data
from processing that isn't in accordance with the Act.

What are some advantages and disadvantages of automation in organizations?

Advantages of automation in organizations include cost reduction, increased productivity,

better performance, greater reliability, and improved security and compliance.

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Disadvantages of automation include potential errors codified into automated processes,
initial setup costs, cyber risks, loss of jobs due to redundancy, and over-reliance on
automation leading to neglect of human touch and social fabric.

How has the small claims court in Kenya incorporated ICT?

The small claims court in Kenya has incorporated ICT through e-filing and the use of email
and WhatsApp for substituted service, making the court processes more efficient and cost-
effective.

What Articles in the Kenyan Constitution are geared towards protecting people with a
direct impact on ICT?

Answer: Article 11(2)(b&c) (Culture), Article 31 (Right to privacy), Article 33 (Freedom of

expression), Article 34 (Freedom of the media), Article 35 (Access to information), and
Article 46 (Consumer rights).

What does the Kenya Communications Act (KCA) of 2013 address?

The KCA (2013) addresses traditional broadcast media considerations that emerged in ICT. It
created regulatory, advisory, and dispute resolution mechanisms to enhance the
implementation of the National ICT policy.

What is the purpose of the amendment to the Kenya Communications Act (KCA)?

The purpose of the amendment was to strengthen the role of the Communications
Commission of Kenya within the ICT sector.

How has ICT affected the Judiciary in Kenya?

ICT has enabled the digitization of court records, efficient records management, court diaries
available online, case management systems, communication infrastructure, and telepresence
court sessions, among other advancements.

How has ICT impacted the legal profession in Kenya in terms of office management?

ICT has led to the automation and digitization of various legal processes, enhanced access to
information, transparency, accountability, and streamlined office management tasks like
documentation and record-keeping.

How has ICT impacted advocates in Kenya?

Advocates can now apply for practicing certificates online, access online materials for
research, advertise within the limits of marketing and advertising rules, utilize electronic
signatures, and take advantage of job opportunities online.

What considerations should be made when selecting an electronic document

management system for a law firm?

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Considerations include compatibility with major browsers, user-friendliness, flexible pricing,
cloud or on-premise server options, integration capabilities, ease of customization, support
for mobile platforms, security features, and ease of cataloging and searching documents.

What are the emerging issues in ICT that impact modern legal practice in Kenya?

Admissibility of electronic evidence, e-government and its impact on advocates, ICT and
advocate advertising, digital migration, online defamation, electronic signatures, and
cybercrime and its effect on legal practice.

How does cybercrime impact legal practice management in Kenya?

Cybercrime poses security threats to law firms, affects confidentiality and privacy of client
information, requires the development of incident response plans, and can damage the brand
reputation of law firms if not properly managed.

Record Management
What is records management, and what does it involve?

Records management is the field of management responsible for the efficient and systematic
control of the creation, receipt, maintenance, use, and disposition of records. It involves
processes for capturing, maintaining evidence of, and managing information about business
activities and transactions in the form of records. This process covers everything from
creating and organizing records to storing, accessing, and eventually disposing of them when
they are no longer needed.

What are the objectives of records management?

The objectives of records management are as follows:

1. Ensuring that records are accurate and reliable, enabling effective decision-making
and planning.
2. Facilitating speedy and efficient retrieval of records, saving time and enhancing
productivity.
3. Keeping records for no longer than necessary to prevent unnecessary accumulation of
outdated or irrelevant documents.

What are the challenges of records management?

The challenges of records management include:

1. Record retention: Keeping records for excessive durations leads to irrelevant and
obsolete data.
2. Duplication of records: Maintaining multiple versions of documents makes tracking
and managing records difficult.
3. Physical storage limitations: As organizations grow, lack of space can lead to
disorganized record keeping and potential loss of essential documents.
4. Poor records retrieval: Inefficient systems can result in difficulty finding and
accessing necessary records.
5. Data security: Cyber-attacks and data breaches pose significant risks and legal
implications.
6. Disorganization: Accumulation of both paper and electronic records can create
confusion and inefficiency.

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 7. Digitization drawbacks: Converting physical records to digital format can be costly
and time-consuming.

What are some solutions to address the challenges of records management?

Some solutions to address the challenges of records management include:

1. Developing a record retention policy to prevent unnecessary accumulation of records.
2. Implementing a de-duplication process to identify and remove duplicate records.
3. Outsourcing record storage to third-party providers to overcome physical storage
limitations.
4. Implementing a centralized system for record management, including digital record-
keeping systems with strong security measures.
5. Regular security audits and compliance checks to safeguard data.

What is electronic record management, and what are its advantages?

Electronic record management refers to the utilization of information and communication

technology (ICT) to create and store records digitally. It involves converting audiovisual and
written records into digital format. The advantages of electronic record management include:
1. Strengthening corporate governance and risk management.
2. Reducing human resource costs and increasing efficiency.
3. Mitigating risks and ensuring accountability.
4. Proper preservation and increased viability of information.
5. Observing legal obligations and compliance with data protection laws.

What legal frameworks and standards are relevant to records management?

Several legal frameworks and standards are relevant to records management, including:
 The Constitution of Kenya (2010) which includes provisions on privacy and freedom
of expression.
 Acts of Parliament such as the Records Disposal Act, Public Archives and
Documentation Services Act, and more, which regulate the management and disposal
of records.
 ISO standards, specifically ISO 15489 and ISO 9001, which provide guidelines for
records management best practices.
 The Data Protection Act, which regulates the collection, processing, and disclosure of
personal data.
 The Universal Declaration on Archives, which emphasizes the importance of archives
in ensuring transparency and accountability.

Procurement

What is procurement, and why is it essential for an organization?

Procurement is the process of purchasing or buying goods and services for use by a company
from an external supplier. It involves entering into contracts with external contractors to
supply the required goods and services. Procurement is essential for an organization because
it forms the basis of planning and budgeting, ensuring a steady supply of goods and services
as needed. It also aims to obtain services at the best possible price to be aware of economies
of scale.

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What are the basic rules that must be observed during the procurement process to
protect all parties involved?
The basic rules to be observed during the procurement process include:
 Transparency: The company must provide full and accurate information to prospective
tenderers regarding the contract and the procedures used to select tenderers and award
contracts.
 Equal Treatment: All tenderers must receive equal treatment to promote fair
competition and select the best contractor in the market.
 Non-Discrimination: At each stage of the procurement process, no actions should make
it more difficult for some suppliers to tender their contracts.
 Value for Money: Companies aim to procure services at the best price to achieve
economies of scale.
 Thresholds: There may be minimum values set for goods or services that require
procurement through the tendering process.

What are the key steps in the procurement process?

The key steps in the procurement process are as follows:

 Get requirements/requisitions from user departments.
 Formulate a procurement plan, including setting a budget and applicable criteria.
 Send inquiries to potential suppliers (request quotations).
 Receive the quotations.
 Make comparisons and evaluate each quotation based on the designed criteria (done by
the evaluation committee).
 Choose the supplier based on the designed criteria.
 Present the evaluation report to the tender committee for consideration and approval of
the chosen supplier.
 Negotiate the price and terms with the chosen supplier.
 Place the order.
 Follow up with the order.
 Receive and inspect the goods/services once received.
 Store and maintain records.
 Receive the invoice for the goods/service and procure payment of the same.

What are the different procurement methods used by organizations?

Organizations use various procurement methods, including:

 Direct Sourcing: Obtaining goods directly from a single supplier, typically when there
are no compatible substitutes in the market or when uniformity is essential.
 Restricted Tender: Obtaining goods or services from a list of pre-qualified suppliers
who can respond to a specific tender without the process of pre-qualification.
 Open Tender: An open process where advertisements are placed, inviting all potential
suppliers capable of submitting tenders without pre-qualification.

How has technology impacted the procurement process, and what are its advantages?

Technology has had a significant impact on the procurement process. Advantages of

technology in procurement include:
 Increased procurement velocity through standardization and automation.

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 Improved talent retention and performance.
 Better identification, storage, and reuse of knowledge and information for future success.
 Cheaper and faster procurement, enhancing economies of scale.
 Access to goods and services from a wide range of suppliers, allowing for the best
choices at the budgeted price without compromising on quality.

What is the legislative framework governing procurement in Kenya?

The legislative framework governing procurement in Kenya includes several laws and
regulations. The key laws and acts governing procurement are:
 The Constitution of Kenya, Chapter 12 - Contains provisions related to public finance,
principles of public finance, and values and principles of public service that apply to the
procurement process.
 Public Finance Management Act, 2012 - Regulates the management of public finances,
including procurement processes, and establishes oversight responsibilities of the
National and County Assemblies.
 Public Procurement And Asset Disposal Regulations, 2020 - Provides for the creation of
the Public Procurement Regulatory Authority and the Public Procurement Administrative
Review Board, which regulate and oversee the procurement process.
 Leadership And Integrity Act - Sets a code of conduct and ethics for public officers,
including principles of integrity to be followed in the procurement process.
 Anti Corruption And Economic Crimes Act - Contains provisions for protection of public
property and revenue, including offenses related to procurement and tendering processes.

What is the role of the Public Procurement Regulatory Authority and the Public
Procurement Administrative Review Board in the procurement process?

The Public Procurement Regulatory Authority is responsible for regulating and overseeing
the public procurement and asset disposal system in Kenya. It ensures that procuring entities
adhere to national values and principles and monitors the procurement process to promote
transparency, accountability, and fair competition.

The Public Procurement Administrative Review Board is an independent appeals board that
reviews and hears disputes arising from tendering and asset disposal processes. Parties who
are aggrieved by the procurement process can file complaints with the review board to
challenge decisions made by the Public Procurement Regulatory Authority.

How does the Constitution of Kenya influence procurement processes in the country?

The Constitution of Kenya, particularly Chapter 12, has a significant influence on

procurement processes in the country. Article 27 addresses public finance, including the
procurement of public goods and services. Article 201 establishes principles of public
finance, such as equity, fair sharing, transparency, and accountability, which must be
considered in the procurement process.
Additionally, Article 232 outlines values and principles of public service, including
professional ethics, economic use of resources, and fair competition. These values guide
public officers in their conduct during the procurement process and ensure that the process is
transparent and fair.

What are the factors that affect stock levels and quantities in procurement?

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Several factors affect stock levels and quantities in procurement, including:
 User demands: Higher demand requires higher quantities to be stocked.
 Cost of storage: Expensive storage may lead to lower quantities stocked.
 Cost of the item: Higher-cost items may result in lower quantities stocked.
 Nature of items: Perishable items may require smaller quantities to reduce wastage.
 Lead time: Longer lead times may necessitate higher stock levels to avoid stockouts.
 Distance between supply and company: Longer distances may require larger stock levels.
 Availability of items in the market: Limited availability may affect stock quantities.
 Budget: The available budget influences the quantity of items procured.
 Security of the store: Secure storage may allow for larger stock quantities.
 Company policy: Company policies may dictate specific stocking levels and quantities.

How do different procurement methods, such as direct tendering and open tendering,
differ in the procurement process?

Different procurement methods, such as direct tendering and open tendering, have distinct
characteristics in the procurement process.
Direct Tendering:
 Involves reaching out directly to a specific individual or supplier for a particular need.
 No advertisement is required as the procurement is targeted to a specific party.
 Suitable for situations where a very specific skill set or individual is required.
 Involves evaluating the qualifications and skill sets of the chosen party.
 Monitoring and review of the performance of the selected individual or supplier.
Open Tendering:
 Involves advertising the procurement need to the public or potential suppliers.
 Multiple bids are received from interested parties.
 Suitable for procuring commonly available items or services.
 Involves evaluating and comparing the bids received.
 Leads to competitive pricing and transparency in the procurement process.

What are the steps involved in the Open Tender method of procurement?

The Open Tender method of procurement involves the following steps:

 Budgeting: Ensure that the items to be procured are captured in the previous budget.
 Procurement Planning: Develop a procurement plan in compliance with regulations and
act requirements.
 Requisition: Raise a requisition with complete specifications, quantities, and evaluation
criteria.
 Preparation of Invitation to Tender: Prepare the tender invitation as per Section 74 of
the Act.
 Preparation of Tender Documents: Create the actual tender documents based on
templates or custom format.
 Advertisement: Advertise the tender in a newspaper circulated nationwide and on the
organization's website.
 Submission and Receipt of Tenders: Tenders can be submitted physically or
electronically, following specific procedures.
 Tender Opening Stage: Appoint a tender opening committee to open and register the
received tenders.
 Tender Evaluation: The tender evaluation committee assesses the technical and financial
aspects of the tenders.

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 Post Qualification Professional Opinion: The head of procurement provides an
independent opinion on successful bidders.
 Notification of Award: Inform all bidders of their status and reasons for being successful
or unsuccessful.
 Creation of a Contract: Establish a contract based on the selected successful bidder.

What are the reasons for allowing International Tendering, and what requirements
must be met when using this method?

International Tendering is allowed to ensure fair competition and when goods or services can
only be obtained from the international market. When using this method, specific
requirements must be met, including:
 English Language: The invitation to tender and advertisement must be in English.
 Circulation Outside Kenya: The advertisement should have sufficient circulation
outside Kenya.
 International Standards: Technical requirements must be based on international
standards, while still complying with local Kenyan laws.
 Widely Used Currency: Security for tender documents must be provided in a currency
widely used in international trade, such as USD or GBP.
 Internationally Accepted Contractual Terms: Contractual terms and conditions should
adhere to internationally accepted standards, as long as they do not contradict Kenyan
laws.

Describe the Two-Stage Tendering method of procurement and its two common
methods.

The Two-Stage Tendering method involves providing technical and financial proposals
separately. Two common methods of Two-Stage Tendering are:
 First Stage for Responsiveness and Clarification: The first stage is used to determine
the responsiveness of offers and for clarifying agreements with tenderers. The
organization reviews technical proposals to shortlist qualified bidders.
 Second Stage for Final Offers: In the second stage, the shortlisted bidders are requested
to submit their final technical and financial proposals.

When can Restricted Tendering be used, and what situations might warrant the use of
Direct Procurement?

Restricted Tendering can be used when goods or services can only be obtained from a
particular vendor or individual, or when open procurement methods are more expensive.
Direct Procurement can be used in various situations, such as when there is no alternative,
when goods are needed urgently, when it is impractical to go through the procurement
process, or when goods are being acquired from another public entity.

What is Electronic Reverse Auction in procurement, and what conditions must be met
for a public entity to use it?

Electronic Reverse Auction is a method where bidders can revise their bids downwards based
on the prices quoted by other bidders. To use Electronic Reverse Auction, a public entity
must be capable of securing the bidders' information, provide guarantees to protect their

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information, and have a reserve price set. The approval of the public procurement regulatory
authority is required for its use.

Safety Security And Disaster Management

What is the relationship between safety and security?

Safety and security are closely related concepts that go hand in hand. Safety refers to the state
or condition of being protected from danger, harm, or risk. On the other hand, security
involves measures taken to protect people, assets, or information from potential threats or
attacks. The two are interconnected because without safety, it is challenging to achieve
security, and vice versa. In other words, ensuring safety is a fundamental step in establishing
security measures. For instance, in an office setting, providing a safe environment (safety) is
a prerequisite for implementing security measures such as access control, surveillance, and
information protection.

What are the types of safety hazards that can occur in an office setting?

Safety hazards in an office setting can be categorized into the following types:
 Physical causes: These are hazards that can physically impact individuals, such as wet
floors without warning signs, obstructed pathways, or poorly arranged furniture.
 Mechanical causes: These hazards are related to defective machines or equipment that
can cause injuries, such as exposed electrical wires, malfunctioning safety harnesses, or
electrical hazards.
 Physiological causes: These hazards affect an individual's physical well-being and
include factors like fatigue, poor health, lack of fitness, stress, emotional instability, and
the use of stimulants.
 Psychological causes: These hazards are related to mental health issues like stress,
emotional instability, and substance abuse, which can lead to accidents and safety risks.

What safety measures can a manager provide to ensure workplace safety?

Managers play a critical role in ensuring workplace safety. Here are some safety measures
they can provide:
 Establishing standards, policies, and procedures: Implementing protocols specific to the
office environment to ensure safety, security, and disaster management.
 Employee sensitization: Conducting regular training and drills to educate employees on
emergency procedures, proper equipment handling, and safety protocols.
 Insurance coverage: Providing comprehensive insurance coverage to protect employees
and the organization from potential risks and accidents.
 Provision of safety equipment: Supplying employees with necessary safety gear, such as
clothing, gloves, masks, and safety glasses when working with high-risk equipment.
 Developing a sexual harassment policy: Creating a clear policy against sexual harassment
in the workplace and providing mechanisms for addressing such issues.
 Proper labeling and warning signs: Ensuring materials and potential hazards are
appropriately labeled, and warning signs are displayed when necessary.
 Regular equipment servicing: Scheduling regular maintenance and servicing of
machinery to ensure they operate safely and efficiently.

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 Employee well-being initiatives: Organizing outdoor programs, team-building activities,
and providing access to in-house counselors or psychiatrists to address psychological
issues.

What are the issues to be considered when developing a safety program?

When developing a safety program, several critical issues need to be considered:
 Investigation process: The program should outline a clear investigative process to be
followed in case of any safety incidents or accidents.
 Review process: Including a mechanism to regularly review and update the safety
program to address any gaps or new risks that may arise.
 Employee selection criteria: Ensuring that the hiring process includes criteria that
consider an applicant's skills, stability, and background to avoid employing individuals
who may pose safety risks.
 Safeguarding hazardous areas: Implementing measures to protect employees from
potentially dangerous areas or equipment, including safety gear and controlled access.
 Staff training and safety awareness: Providing regular training and safety awareness
programs to keep employees informed and prepared.
 Insurance and dispute resolution: Ensuring the safety program addresses issues related
to insurance coverage and procedures for resolving disputes.
 Proper management and communication: Establishing effective communication
channels for reporting safety concerns and ensuring that management takes appropriate
action.

How can a manager ensure security in the workplace?

A manager can ensure security in the workplace by implementing the following measures:
 Premises safeguarding: Employing security guards, installing surveillance cameras, and
implementing access control systems, such as keycards or biometric authentication.
 Visitor checks: Checking and registering visitors upon entry, providing visitor badges,
and verifying their identity when necessary.
 Staff security: Conducting thorough background checks during the hiring process and
implementing security measures for staff when they leave the premises.
 Information security: Ensuring that sensitive information is only accessible by
authorized personnel, using encryption and other cybersecurity measures to protect digital
data.
 Cash security: Limiting the amount of cash kept on the premises, restricting access to
cash boxes and safes, and maintaining meticulous cash records.
 Emergency procedures: Developing and regularly testing evacuation and emergency
response plans to ensure a quick and efficient response in case of any threat or disaster.
 Education and awareness: Educating employees about security risks, safety protocols,
and the importance of maintaining a secure work environment.
By implementing these security measures, managers can create a safer and more secure
workplace for their employees and protect the organization's assets and information.

How is disaster defined in the context of disaster management?

Disaster, in the context of disaster management, is defined as a serious disruption of the

functioning of a community or society that causes widespread human, material, economic, or
environmental losses. These losses exceed the ability of the affected community or society to
cope using its own resources. In simple terms, a disaster is an event or series of events that

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result in significant negative impacts and overwhelms the affected community's capacity to
handle the situation on its own.

What are the two main classifications of disasters?

The two main classifications of disasters are:

 Natural disasters: These are disasters that occur beyond human control and are typically
caused by natural phenomena. Examples include floods, landslides, earthquakes,
hurricanes, and wildfires.
 Man-made disasters: These are disasters that result from human interference or
activities. Examples include industrial accidents, terrorist attacks, chemical spills, and
infrastructure failures.

What are the four stages of disaster management according to the International Red
Cross Society?

The four stages of disaster management according to the International Red Cross Society are:
 Stage I: Discovery and notification - When a disaster is discovered, relevant authorities
must be notified promptly.
 Stage II: Evaluation and accident control initiation - After discovery, a proper evaluation
of the situation is carried out to determine the appropriate response and mitigation
measures.
 Stage III: Clean up and disposal - After initial response and rescue operations, efforts are
made to clean up the affected area and remove debris or hazards.
 Stage IV: Documentation - The process of documenting the disaster management efforts
and outcomes for future reference and review to improve future disaster response
strategies.

What are the four stages of the disaster management cycle?

Answer: The four stages of the disaster management cycle are:
 Pre-disaster/preparation stage: This stage involves making preparations and creating
contingency plans to mitigate the effects of potential disasters. It includes activities such
as building escape routes, preparing disaster kits, and having medical supplies and
equipment readily available.
 Disaster stage: This is the actual occurrence of the disaster, where the event causing
widespread losses and disruptions takes place.
 Response stage: In this stage, personnel and resources are deployed to the affected area
to assess the situation and provide relief and aid to those impacted by the disaster.
 Recovery stage: After the immediate response, this stage focuses on the restoration,
rehabilitation, reconstruction, and implementation of mitigation measures to recover from
the disaster's effects.

What are the 5 phases involved in emergency situations?

You have provided an accurate breakdown of the five phases involved in emergency
situations:
 Prevention: This phase involves taking actions to prevent emergencies or disasters from
occurring. It includes activities such as risk assessment, implementing safety measures,
and creating regulations to minimize potential hazards.

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 Preparedness: This phase focuses on planning, organizing, and training to ensure
effective response capabilities in the event of an emergency. It involves developing
emergency plans, conducting drills and exercises, and establishing communication
systems.
 Response: When an emergency occurs, the response phase is activated. This stage
involves the immediate mobilization of emergency services, resources, and personnel to
address the situation. The primary goal is to save lives, protect property, and stabilize the
situation.
 Recovery: After the initial response, the recovery phase begins. This stage aims to restore
the affected area to its pre-disaster state. It involves cleanup, repair, and rebuilding
efforts, as well as providing support to affected individuals and communities.
 Mitigation: The mitigation phase focuses on taking measures to reduce the impact of
future emergencies or disasters. It involves long-term planning, implementing structural
changes, and promoting community awareness to lessen the vulnerability to hazards.

What are some of the recommendations made to improve disaster management in

Kenya?

Some of the recommendations made to improve disaster management in Kenya include:

 Establishment of a disaster management body: Creating a dedicated organization or
body to facilitate faster and more coordinated responses to disaster calls.
 Capacity building (infrastructure): Improving infrastructure, such as roads and
communication systems, to ensure faster deployment of security personnel and disaster
management experts to affected areas.
 People empowerment through training: Providing training and capacity building to
empower individuals and communities to respond effectively to disasters.
 Establishment of early warning systems: Implementing better early warning systems to
alert communities and relevant authorities about potential disasters, enabling them to take
timely preventive measures.
 Government symbiosis between county and national plans: Ensuring better
coordination and cooperation between county and national governments in disaster
management efforts to avoid delays in response.
 Implementation of information systems: Maximizing the use of information systems to
enhance the speed, efficiency, and effectiveness of disaster response and management.

Sexual harassment and discrimination

What is the definition of sexual harassment in the workplace?

Sexual harassment in the workplace is defined as unwelcome sexual advances, requests for
sexual favors, and other verbal or physical conduct of a sexual nature that creates a hostile or
offensive work environment. It is considered a form of discrimination that violates Title VII
of the Civil Rights Act of 1964, which prohibits unfair employment practices and
discrimination based on sex, age, color, national origin, race, religion, disability, genetic
information, gender identity, and sexual orientation.

What are the sources of sexual harassment regulation in Kenyan law?

The sources of sexual harassment regulation in Kenyan law include:

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 Section 23 of the Sexual Offences Act: This section deals with sexual harassment
committed by a person in a position of authority or holding a public office. The offense
carries penalties of imprisonment and fines.
 Section 6(1) of the Employment Act: This section defines sexual harassment in the
workplace, and it outlines specific actions that constitute sexual harassment by an
employer, representative of the employer, or a co-worker.
 Law Society of Kenya (LSK), Draft Sexual Harassment and Bullying Policy 2019:
This policy document provides further guidance and examples of what constitutes sexual
harassment.

What are the forms of sexual harassment?

The forms of sexual harassment are:

 Quid pro quo sexual harassment: This involves direct or indirect requests for sexual
activity in exchange for employment benefits or threats of detrimental treatment.
 Hostile working environment: This form of harassment creates conditions that are
intimidating or humiliating for the victim and interferes with their ability to work
effectively.
 Same-Sex Sexual Harassment: Harassment that occurs between members of the same
sex.

What are some of the causes of sexual harassment?

Some causes of sexual harassment include:
 Socialization: The environment in which individuals are brought up may influence their
behavior and attitudes towards others.
 Power games: Individuals may engage in harassment as a way to assert their power or
dominance in the workplace.
 Moral values, divorce, and cultural differences: Changing moral values and increased
divorce rates may contribute to certain behaviors that lead to harassment.
 Credibility and victim blaming: Victims of sexual harassment may be blamed for the
harassment based on factors such as appearance or behavior.
 Aggressiveness and bravado: Harassment may be a result of aggressive behavior in
group settings.
 Lack of company policy: Organizations without clear policies on sexual harassment may
inadvertently allow such behavior to persist.

What are some of the effects of sexual harassment in the workplace?

The effects of sexual harassment in the workplace include:

 Emotional and physical issues: Victims may experience stress, anxiety, and physical
health problems due to the harassment.
 Low self-esteem: Harassment can negatively impact a victim's self-esteem and
confidence.
 Career progression: Harassment may hinder a victim's career advancement or force
them to quit their job.
 Financial problems: Reduced productivity due to harassment can lead to financial
difficulties for the victim.
 Decreased company productivity: If harassment affects the productivity of individual
employees, it can impact overall company productivity.

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 Lawsuits and tarnished reputations: Sexual harassment cases can result in lawsuits and
damage a company's reputation. False accusations can also tarnish the reputation of those
wrongly accused.

How is discrimination defined ?

According to the International Labor Organization (ILO), discrimination is the distinction,

exclusion, or preference which has the effect of nullifying or impairing equality of
opportunity or treatment in employment or occupation. This means that when a person is
treated less favorably than others based on certain characteristics unrelated to their
competencies or the requirements of the job, it constitutes discrimination.

The National Cohesion and Integration Act defines discrimination as treating a person less
favorably on ethnic grounds compared to others, or applying a requirement or condition that
disproportionately affects a particular ethnic group. The Act also states that discrimination
can occur if a provision, criterion, or practice is applied equally to persons of different race or
ethnic origins, but it puts a specific group at a disadvantage without a legitimate justification.
Section 3(2) provides a clearer understanding of what constitutes discrimination under the
Act.

What is the distinction between direct and indirect discrimination?

Direct discrimination refers to the treatment of a person less favorably than others in similar
circumstances, and it is evident and visible. For example, hiring someone based on their
ethnicity or discriminating against an individual with disabilities due to their disability.
On the other hand, indirect discrimination is not easily discernible and often inadvertent. It
occurs when a specific practice, criterion, or norm disadvantages a particular class of
individuals. It is not immediately noticeable and may require careful examination to identify
instances of indirect discrimination.

What are the types of discrimination based on the characteristics of individuals?

The types of discrimination based on characteristics of individuals include:

1. Age discrimination
2. Gender or sex discrimination
3. Religion discrimination
4. Sexual orientation discrimination
5. Marital status discrimination
6. Political affiliation discrimination
7. HIV status discrimination
8. Disability discrimination
9. Nationality discrimination
10. Trade union membership discrimination
11. National extraction discrimination (based on social origin or ancestry)

What is the difference between positive and negative discrimination?

Negative discrimination refers to treating a specific class of persons unfavorably. In other

words, it involves actions or practices that are detrimental to a particular group of individuals.

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On the other hand, positive discrimination, also known as affirmative action, involves
treating a specific class of people more favorably than others. It is intended to address
historical inequalities and provide opportunities to those who have been disadvantaged. For
example, implementing policies to increase the representation of women, minorities, or
people with disabilities in certain positions.

Why does discrimination occur in the workplace?

Discrimination can occur in the workplace due to various reasons, including:
 Prejudice and bias: Individuals may hold prejudiced views based on stereotypes and
biases, leading to discriminatory behavior.
 Power dynamics: Discrimination may arise from power imbalances, where those in
positions of authority misuse their power to discriminate against others.
 Lack of awareness and education: Some individuals may discriminate unknowingly due
to a lack of awareness about diversity and inclusion issues.
 Organizational culture: Workplace culture and norms may perpetuate discrimination if
not addressed and challenged.
 Historical inequalities: Discrimination may be a result of historical inequalities and
social structures that favor certain groups over others.
 Fear of change: Some individuals may discriminate against others who challenge
traditional norms or status quo.
 Lack of proper policies and training: Inadequate policies and training on diversity and
inclusion may lead to discrimination going unchecked in the workplace.

What is the definition of sexual harassment according to the Equal Employment

Opportunity Commission (EEOC)?

Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and
other verbal or physical harassment of a sexual nature in the workplace or learning
environment.

How does the Constitution of Kenya 2010 address equality and discrimination?

The Constitution of Kenya 2010 guarantees equality and freedom from discrimination in
Article 27. It states that every person is equal before the law and has the right to equal
protection and benefit of the law. It prohibits discrimination on various grounds, such as race,
sex, pregnancy, marital status, health status, ethnic or social origin, age, disability, religion,
conscience, belief, culture, dress, language, or birth.

What is the provision for sexual harassment in the Employment Act?

The Employment Act (section 6) defines sexual harassment as any direct or indirect request
for sexual activity, use of sexual language or visual material, or physical behavior of a sexual
nature that is unwelcome and has a detrimental effect on the employee's employment, job
performance, or job satisfaction. It includes promises of preferential treatment or threats
related to employment status.

What is the purpose of having harassment policies in the workplace?

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A4: Harassment policies in the workplace are essential to define and prevent sexual
harassment and create a safe and respectful environment for all employees. These policies
inform employees about their rights, the consequences of sexual harassment, and the
procedures for reporting and addressing any incidents of harassment.

How does the Sexual Offences Act address sexual harassment?

A5: The Sexual Offences Act (sections 5 and 23) criminalizes sexual assault and sexual
harassment. It stipulates penalties for those who make unwelcome sexual advances
persistently, especially those in positions of authority or holding public office.

What are the legal provisions against discrimination in employment?

A6: Discrimination in employment is prohibited under the Employment Act (section 5(3)),
which obligates employers to promote equal employment opportunities and not discriminate
directly or indirectly against any employee or prospective employee based on various
grounds, including those mentioned in Article 27 of the Constitution.

How do international treaties address discrimination and equality?

International treaties, such as the International Covenant on Civil and Political Rights,
International Covenant on Economic, Social and Cultural Rights, and International
Convention on the Elimination of All Forms of Discrimination Against Women, provide
protections against discrimination and promote equality on various grounds.

What is the role of the International Labor Organization (ILO) in addressing

discrimination in employment and occupation?

The ILO has a convention called the Discrimination (Employment and Occupation)
Convention (1958) No. 111, which aims to eliminate discrimination in employment and
occupation. The convention provides guidance and principles for member states to promote
equality and prevent discrimination in the workplace.

Human Resource Management

Why is it important to learn human resources?

Learning human resources is crucial for several reasons. It is relevant for representing clients
in labor and employment matters in court, and it is essential for those working in law firms or
organizations as it helps make a good impression when entering the job market.

What is the difference between human resource and human capital?

Human resource and human capital both refer to human skills and talents critical to an
organization's success. Human resource generally refers to the workforce, while human
capital emphasizes the value of those skills and talents as assets to the organization.

What are the four types of resources in an organization?

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The four types of resources in an organization are humans, finance, machines, and materials.

What are some criteria to consider when acquiring human resources in an

organization?

When acquiring human resources, you should consider the optimal number of staff, relevant
competencies (behavioral, technical, and supervisory), correct deployment of staff,
addressing staff motivation, continuously improving staff capacity through training and
development, and correctly managing performance through appraisals.

What is the definition of Human Resource Management (HRM)?

HRM is the strategic management of human resources in an organization, aiming to achieve a

competitive advantage. It is concerned with utilizing a well-rounded workforce to fulfill the
organization's vision, mission, and objectives.

What are the objectives of HRM?

The objectives of HRM include achieving organizational goals, developing and maintaining a
healthy work culture, enhancing employee integration, meeting training and development
needs, fostering employee motivation, empowering the workforce, and bolstering employee
retention.

How does an organization ensure employee retention?

Employee retention can be ensured through effective HRM practices such as having a human
resource manager with leadership qualities, providing career development opportunities,
offering training and development opportunities, providing staff welfare and benefits,
ensuring data management and compliance, and creating a healthy working environment.

What is employee integration?

Employee integration refers to the ability of employees to work together cohesively and
efficiently to achieve organizational goals. It involves coordination and cooperation among
employees in the workplace.

What are the responsibilities and functions of HRM?

The responsibilities of HRM include ensuring the optimal number of staff with relevant
competencies, recruiting to fill vacancies, deploying staff to suitable departments, staff
motivation, equitable compensation, staff development, and performance management. The
functions of HRM encompass planning, organizing, directing, and controlling, as well as
procurement, development, compensation, and maintenance of human resources.

What is the definition of strategy in the context of strategic human resource

management?

In the context of strategic human resource management, strategy is a plan of action designed
to achieve a long-term or overall aim. It involves aligning the organization's future goals with

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human resource policies and plans to ensure that the human resources function supports and
facilitates the achievement of the organization's objectives.

What are the two phases of the strategic process in strategic management?

The two phases of the strategic process in strategic management are:

 Strategic Formulation: This phase involves decision-making, including establishing the
organization's mission, setting short-term and long-term goals, and formulating strategies
to achieve those objectives.
 Strategy Implementation: This phase focuses on utilizing available resources effectively
to implement the formulated strategies. It requires monitoring and evaluating the
strategy's progress and making necessary adjustments for successful implementation.

What is the role of human resources management in strategic management?

The role of human resources management in strategic management is to ensure that the
organization can achieve its overall vision, mission, and objectives through the proper
acquisition and utilization of human resources. HR professionals need to be strategic partners
in the process of formulating and implementing the organization's strategies, aligning human
resource activities with the business strategy to achieve a competitive advantage.

What is Human Resource Planning (HRP), and what are its objectives?

Human Resource Planning (HRP) is a process that involves forecasting, inventorying,

anticipating, and planning the human resources required to meet the future needs of an
organization. Its objectives include:
 Ensuring an adequate supply of manpower to meet organizational needs.
 Retaining employees with the appropriate skills and competencies to fulfill the
organization's objectives.
 Using existing human resources optimally to avoid overstaffing.
 Forecasting future human resource requirements and having employees with different
skill levels to support promotions and career growth.
 Assessing and addressing surplus or shortage of human resources.
 Anticipating the impact of information and communication technology (ICT) on HR and
planning accordingly.
 Providing feedback through accurate employee data for decision-making.
 Developing a well-trained and flexible workforce through training and job rotation.

What are some problems or barriers to Human Resource Planning (HRP)?

Some problems or barriers to Human Resource Planning (HRP) include:

 Perception of an over-abundance of HR availability, leading to a lack of focus on
competencies and qualifications.
 Inaccurate data on demand and supply of HR, resulting in ineffective planning.
 Existence of uncertainties in the future, making predictions challenging.
 Conflict between quantitative and qualitative approaches to HRP, leading to less accurate
forecasts.
 The misconception that all HR personnel are experts in handling personnel matters,
leading to improper planning and execution.
 Absence of reliable HR data, which hampers the effectiveness of the planning process.

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How can Human Resource Planning (HRP) be made effective?

To make Human Resource Planning (HRP) effective, organizations can:

1. Adopt human resource plans as an integral part of corporate planning to ensure
alignment with organizational objectives.
2. Ensure top management support and involvement in the HRP process for better
implementation and commitment.
3. Maintain complete and accurate records of employee data to support effective
planning.
4. Align the time horizon of HRP with the organization's needs and strategic goals.
5. Emphasize both quantitative and qualitative aspects of HRP in a balanced manner to
improve the accuracy of forecasts.

What are the national laws that govern Human Resource Planning (HRP) in Kenya?

The national laws that govern Human Resource Planning (HRP) in Kenya include:
 Constitution of Kenya, 2010: Provides the overall legal framework for the country,
including labor and employment rights.
 Leadership and Integrity Act, 2012: Deals with the leadership code and integrity issues
in public service.
 Public Service Commission Act 2017 and pursuant regulations: Governs the
operations and management of the Public Service Commission responsible for public
service employment.
 Employment Act: Regulates various aspects of employment, including contracts,
conditions of service, termination, and employee rights.
 Employment (Amendment) Act, No. 15 Of 2022: An amendment to the Employment
Act, introducing changes to employment regulations.
 Labour Institutions Act: Provides for the establishment and regulation of various labor
institutions in Kenya.
 Labour Relations Act: Governs the relationship between employers and employees,
trade unions, and collective bargaining.
 Work Injury Benefits Act: Ensures compensation for work-related injuries and
occupational diseases suffered by employees.
 Occupational Safety and Health Act: Ensures the safety, health, and welfare of
employees in the workplace.

How does the Constitution of Kenya, 2010, impact Human Resource Planning (HRP)?

The Constitution of Kenya, 2010, impacts Human Resource Planning (HRP) by providing the
overall legal framework for the country, including labor and employment rights. It enshrines
the fundamental rights of employees and guarantees equality, fair labor practices, and non-
discrimination in employment. HRP must align with these constitutional principles to ensure
that employees' rights and welfare are protected. The Constitution also establishes the legal
framework for public service and governs issues related to leadership and integrity in public
service. This means that HRP in the public sector should be conducted in compliance with the
Constitution to uphold transparency, accountability, and ethical practices in human resource
management.

How does the Employment Act of Kenya impact Human Resource Planning (HRP)?

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The Employment Act of Kenya significantly impacts Human Resource Planning (HRP) as it
regulates various aspects of employment. The Act governs employment contracts, conditions
of service, termination, and employee rights. In the context of HRP, the Employment Act sets
the legal standards and requirements that employers must comply with in recruiting, hiring,
and managing employees. HR practitioners need to be familiar with the provisions of the
Employment Act to ensure that their HRP processes are in line with the law. For example, the
Act specifies minimum working conditions, such as working hours, overtime, leave
entitlements, and employee benefits, which must be taken into consideration when planning
human resources for an organization.
How does International Labour Convention No. 29 on Forced Labour impact Human
Resource Planning (HRP)?

International Labour Convention No. 29 on Forced Labour has implications for Human
Resource Planning (HRP) in terms of prohibiting forced labor in all its forms. HR
practitioners need to ensure that the recruitment and hiring processes do not involve any form
of forced labor, including bonded labor, debt bondage, and slavery. When planning for
human resources, organizations must comply with this convention to uphold human rights
and ethical practices. Failure to adhere to this convention can lead to legal and reputational
risks for the organization.

How does International Labour Convention No. 100 on Equal Remuneration impact
Human Resource Planning (HRP)?

International Labour Convention No. 100 on Equal Remuneration impacts Human Resource
Planning (HRP) by emphasizing equal pay for men and women for work of equal value. HR
practitioners need to ensure that they consider gender equality in their workforce planning,
compensation, and career development. Any disparities in pay based on gender should be
addressed to comply with this convention. In HRP, organizations should aim to promote
diversity and inclusion, ensuring that both men and women have equal opportunities for
employment and advancement.

How can adherence to labor laws and international labor conventions enhance Human
Resource Planning (HRP)?

Adherence to labor laws and international labor conventions can enhance Human Resource
Planning (HRP) in several ways:
 Legal Compliance: Ensuring compliance with labor laws and conventions helps
organizations avoid legal penalties and reputational damage that may arise from non-
compliance.
 Ethical Practices: HRP that aligns with labor laws and conventions demonstrates an
organization's commitment to ethical and fair labor practices, promoting a positive
employer brand.
 Employee Welfare: Complying with labor laws and conventions protects employee rights,
safety, and well-being, leading to a more engaged and productive workforce.
 Talent Attraction and Retention: Organizations with a reputation for following labor
standards are more likely to attract and retain top talent.
 International Reputation: Adhering to international labor conventions can enhance an
organization's reputation globally and facilitate international partnerships and
collaborations.

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 Social Responsibility: Demonstrating social responsibility in HRP enhances an
organization's image in the eyes of stakeholders and the community.

How can HR practitioners use the legal framework governing HRP to make strategic
decisions in their organizations?

HR practitioners can use the legal framework governing HRP to make strategic decisions in
their organizations by:
 Ensuring Compliance: By understanding and adhering to labor laws and international
labor conventions, HR practitioners can ensure that all HR processes and decisions align
with legal requirements.
 Managing Risks: Awareness of labor laws helps HR practitioners identify and mitigate
potential legal risks related to recruitment, employment, and termination of employees.
 Incorporating Diversity and Inclusion: The legal framework emphasizes equal treatment
and non-discrimination. HR practitioners can use this to promote diversity and inclusion
in the workplace.
 Developing Policies: The legal framework provides guidance for formulating HR policies
that safeguard employees' rights and welfare while supporting organizational objectives.
 Negotiating Collective Agreements: HR practitioners involved in collective bargaining
can use the legal framework to negotiate agreements that comply with labor laws and
conventions.
 Creating a Fair Work Environment: By complying with labor laws, HR practitioners
contribute to creating a fair and equitable work environment, fostering employee
satisfaction and loyalty.
 Monitoring and Reporting: HR practitioners can use the legal framework

Job analysis and Job deisgn

What is job analysis, and why is it important in Human Resource Planning (HRP)?

Job analysis refers to the systematic investigation of a job's content, including its tasks,
duties, and responsibilities. It is a crucial aspect of Human Resource Planning (HRP) as it
provides essential information about the nature of jobs within an organization. Job analysis
helps HR practitioners understand the specific requirements and competencies expected from
individuals in each job role. This understanding allows them to make informed decisions
about recruitment, selection, placement, training, and performance management. By
analyzing jobs, HR professionals can identify key performance indicators, job
responsibilities, and the skills needed, enabling them to align workforce capabilities with
organizational goals effectively.

What are the components of job analysis, and how do they contribute to understanding
a job's nature?

Job analysis comprises several components that contribute to understanding a job's nature.
These components include:
 Overall Purpose: This component explains why the job exists and the specific
contributions the job holder is expected to make to the organization.
 Job Content: It involves the tasks, operations, and activities involved in the job, along
with the knowledge, skills, and abilities required for its performance.

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 Key Result Areas: These are the outcomes and outputs that the job holder is expected to
produce. They define the critical areas of responsibility for the job.
 Technological Dimensions: This aspect considers the physical working conditions,
equipment, and tools needed to perform the job safely and efficiently.
 Organizational Factors: It involves the reporting relationships of the job, indicating who
the job holder will report to, either directly or indirectly.
 Motivating Factors: This component encompasses employee welfare and remuneration,
which influence job satisfaction and motivation.
 Developmental Factors: These factors include opportunities for career growth, skill
development, and promotions.

What methods can be used for job analysis, and what factors influence the choice of
method?

Various methods can be used for job analysis, and the choice of method depends on several
factors, including:
 Organizational Structure: The size and structure of the organization can influence the
choice of method. For larger organizations, questionnaires or observation methods might
be more practical than conducting interviews with every employee.
 Hierarchical Nature of the Job Responsibilities: The level of job responsibilities
determines the most suitable method. For employees with limited time or higher
competency levels, questionnaires might be preferred over interviews.
 Duties Involved in a Job: The complexity of the job's duties and responsibilities can
impact the data collection method. Some jobs may require observation to understand the
tasks better.
 Cost of Job Analysis: The available budget can influence the chosen method, as some
methods might be more cost-effective than others.
 Person Conducting the Job Analysis: The skills and expertise of the person conducting
the job analysis also play a role in determining the method. Some methods may require
specialized training or experience.

What are the outcomes of job analysis, and how do they benefit an organization's HR
processes?

The outcomes of job analysis are job description and job specification. These outcomes
benefit an organization's HR processes in the following ways:
 Job Description: A written summary of a job's tasks and responsibilities, the job
description provides clarity about what the job entails, the reporting relationships, and the
expected outcomes. It serves as a reference point for employees and managers, ensuring
everyone understands their roles and responsibilities.
 Job Specification: Identifying the minimum acceptable qualifications, competencies, and
attributes required for a particular job, job specification guides recruitment and selection
processes. It helps attract candidates with the necessary skills and ensures a better fit
between the job and the employee.
 Human Resource Planning: Job analysis provides crucial data for HR planning by
determining the competencies and skills required for various jobs. This information helps
HR practitioners identify talent gaps and plan for future workforce needs.
 Performance Appraisal: Job analysis establishes clear performance standards by
defining key result areas and expected outcomes. This aids in evaluating employee
performance against established criteria.

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 Training and Development: By identifying the required competencies, job analysis
assists in designing appropriate training and development programs, ensuring employees
acquire the necessary skills for their roles.
 Health and Safety: Through job analysis, organizations can identify risk factors
associated with specific jobs and take measures to mitigate health and safety risks for
employees.

How does job analysis contribute to recruitment and selection processes?

Job analysis plays a significant role in recruitment and selection processes by providing
essential information about the job's requirements and the competencies expected from
candidates. With a clear understanding of the job's nature, HR practitioners can:
 Design Effective Job Advertisements: Job analysis helps in crafting accurate and
comprehensive job advertisements that outline the specific skills, experience, and
qualifications required for the role.
 Set Appropriate Selection Criteria: The job analysis outcomes, such as job
specifications, aid in setting appropriate selection criteria. This ensures that candidates are
evaluated based on the skills and attributes relevant to the job.
 Conduct Targeted Interviews: Understanding the job's content allows HR professionals
to ask relevant and specific questions during interviews, ensuring a more effective
evaluation of candidates' suitability for the role.
 Make Informed Hiring Decisions: With clear job requirements and competency
expectations, HR practitioners can make well-informed hiring decisions, selecting
candidates who best match the job's needs and the organization's goals.
 Avoid Over- or Under-Qualified Hires: By aligning recruitment with job analysis,
organizations can avoid hiring candidates who are either overqualified or underqualified
for the position, thus improving employee retention and job satisfaction.

What is job design?

A Job design is the process of defining the content of a job, including its duties,
responsibilities, methods, and the relationships that should exist between the job holder and
superiors, subordinates, and colleagues.

What is the aim of job design?

The aim of job design is to increase productivity and performance, improve working relations
and enhance the job satisfaction of employees.

What are the considerations in designing roles?

Key considerations in designing roles include variety, identity, feedback, responsibility,

autonomy, participation in decision making, recognition and support.

How does variety in a job impact job design?

Greater variety in a job can improve the interest, challenge, and commitment of the role
holder to the task. However, too much variety can lead to frustration and dissatisfaction.

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What does identity refer to in job design?

Identity in job design refers to the feeling of satisfaction that comes from doing a 'whole'
piece of work with a distinct beginning and end, where the role holder can see the end results
of their work.

Why is feedback important in job design?

Feedback is essential for employees to know if they have achieved the expected standards
and to feel motivated and contribute to their development in the role.

How does autonomy play a role in job design?

Autonomy in job design refers to the latitude given to employees to regulate and control their
work within the parameters set for the job. It allows employees to have decision-making
authority over their tasks.

Why is participation in decision making beneficial in job design?

Allowing employees to participate in decision-making about matters that affect their work
improves job satisfaction and motivation, as people are more likely to act upon and own
decisions they have had a part in making.

What is competency modeling in job design?

Competency modeling is the process of identifying the knowledge, skills, abilities, and other
characteristics required for successful performance in a particular role. It helps align tasks
with an individual's competencies.

What are the challenges of job design?

The challenges of job design include the dynamic nature of society, political shifts and
changes in employment policies, technology advancements, globalization, changes in
legislation, and lack of support from administration.

Can you provide an example of job design?

Adam's Family Company needs a new graphic designer. They train Dan, who is currently an
IT tech with an interest in graphic design, in specific graphic design duties and techniques.
Dan is allowed to perform both IT technician and graphic design duties, boosting his
competency in the new area and motivating him to complete tasks. This saves the company
from hiring a new employee.

Recruitment and Selection:

What is recruitment?

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Recruitment is the set of activities used to attract and identify suitable applicants for job
vacancies in an organization. It involves locating, identifying, and encouraging candidates to
apply for positions.

What are the internal factors affecting recruitment?

Internal factors include the size of the organization, recruiting policies (internal vs. external
recruitment), organizational image, and job image.

What are the external factors affecting recruitment?

External factors include the labor market conditions, the level of unemployment, and
government policies that may impact employment.

What are the recruitment activities?

Recruitment activities include job analysis and job design, competency modeling, obtaining
authorization to hire, identification of sources of suitable candidates, and effective
communication through advertisement.

What are the sources of recruitment?

Sources of recruitment can be internal (promotions, transfers, employee referrals) or external

(advertisements, recruitment agencies, educational institutions, head-hunting, e-recruitment).

How is selection different from recruitment?

Recruitment involves attracting and encouraging potential candidates to apply, while

selection involves identifying and choosing the most suitable candidate from the pool of
applicants for a specific job.

Why is scientific selection important?

Scientific selection is crucial to the organization's success as it ensures a better fit between
the employer and employee. Wrong or inappropriate selection can be costly and demotivate
employees.

What are the possible outcomes of scientific selection?

In scientific selection, there can be four possible outcomes:

- True Positive (TP),

- False Positive (FP),
- True Negative (TN),
- False Negative (FN).

How does False Positive and False Negative affect selection?

A high number of False Positives or False Negatives indicates a poor selection tool, leading
to either selecting unsuitable candidates or rejecting potentially qualified ones.

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Why is competency modeling important in selection?

Competency modeling helps match the skills and capabilities of candidates to the specific
duties and responsibilities of the job, ensuring a more accurate selection process.

What are the steps involved in a standard selection process?

The steps involved in a standard selection process are:
- Application forms: Gathering biographical, educational, work experience, and other
relevant information from applicants.
- Preliminary interview: Assessing candidates to eliminate certain applicants or gather
specific information.
- Selection tests: Administering tests to measure specific abilities, skills, or knowledge
required for the job.
- Selection interview: Conducting face-to-face interviews to verify information and assess
the candidate's suitability for the role.
- Reference checks: Verifying information provided by contacting character and work
references.
- Physical examination (if necessary): Conducting medical or physical tests based on the
job requirements.
- Final selection: Offering the job to the most suitable candidate based on the overall
selection process.

What are some common selection tests?

Common selection tests include aptitude tests (ability or capability tests), achievement tests,
intelligence tests, judgment tests, personality tests, interest tests, and graphology tests.

What are the advantages of using testing in the selection process?

The advantages of using testing in the selection process are:

 Predicting future performance.
 Diagnosing situational behavior and understanding why someone behaves in a certain
way.
 Providing economies of scale (efficient for large-scale recruitment).
 Being unbiased and quantifying results.

What are the steps involved in developing a test program for selection?

The steps involved in developing a test program for selection are:

- Decide on the objectives of the tests.
- Analyze the specific job requirements and characteristics to be measured.
- Choose appropriate tests based on the identified requirements.
- Administer the tests to candidates.
- Establish success criteria based on test performance.
- Analyze the results to determine the best-suited candidates.

What are the guidelines for performing effective interviews in the selection process?

The guidelines for performing effective interviews in the selection process are:
 Set a specific time period for the interview.

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  Conduct interviews with experienced individuals capable of extracting relevant
information.
 Provide interviewers with guidelines and the candidate's CV in advance.
 Ensure privacy during the interview to maintain sensitive information.
 Show sensitivity to the interviewee's sentiments and emotional maturity.

What are some of the legal issues that can arise from recruitment and selection?

Some of the legal issues that can arise from recruitment and selection include:
 Equal opportunity and anti-discrimination laws.
 Issues related to data protection and privacy.
 Compliance with immigration laws when hiring for jobs abroad.
 Failure to hire based on merit and resorting to nepotism or favoritism.
 Corruption in the recruitment process.

What are some emerging trends in recruitment and selection?

Some emerging trends in recruitment and selection include:

 E-recruitment and utilization of ICT.
 Outsourcing recruitment functions to specialized agencies.
 Proactive recruitment with strategic human resource management and succession
planning.
 Focus on recruiting for assignments rather than traditional job roles.
 Emphasizing soft skills and core values in candidates.
 Increased brand visibility and representation of organizational values.
 Adoption of flexible work schedules and remote work options post-COVID-19.

Placement, Induction And Socialization

What is the purpose of placement in the recruitment and selection process?

The purpose of placement in the recruitment and selection process is to assign selected
candidates to suitable positions within the organization based on their competencies and job
requirements. It ensures that the right person is placed in the right job, reducing employee
absenteeism, workplace accidents, and dissatisfaction.

What is the difference between induction and socialization?

Induction is a part of socialization. Induction is specifically focused on introducing new

recruits to the organization, providing orientation, initial training, and mentoring.
Socialization, on the other hand, is a broader process that includes adaptation for all
individuals in the organization, whether new entrants or those affected by transfers or
promotions.

What are the goals of socialization in an organization?

The goals of socialization in an organization include developing a conscience, teaching

impulse control, preparing employees to perform social roles, and cultivating shared sources
of meaning and value. It helps individuals work harmoniously toward the organization's
vision and mission.

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What are the three main phases of the socialization process?

The three main phases of the socialization process are: a) Pre-arrival: New recruits are
introduced to the organization's values, culture, expectations, and attitudes. b) Encounter:
Roleplaying starts, and new employees align their expectations with the reality of the
organization. c) Metamorphosis: New employees become confident and productive members
of the organization, mastering the skills and aligning with the organization's values.

How can an organization make its induction program more effective?

To make an induction program more effective, an organization should involve other

employees, not just management, in the induction process. Including colleagues in the
induction process creates a more friendly and welcoming environment. Additionally, a
planned and formal induction program covering various aspects of the organization, such as
mission, policies, benefits, and training, can help new employees integrate more smoothly.

How does placement contribute to reduced workplace accidents and employee

dissatisfaction?

Placement contributes to reduced workplace accidents and employee dissatisfaction by

ensuring that individuals are assigned to roles that match their competencies and job
requirements. When employees are placed in suitable positions, they are more capable of
performing their tasks, reducing the likelihood of accidents due to improper skills or
knowledge. Moreover, being placed in the right job improves job satisfaction and morale,
leading to lower dissatisfaction rates.

What are the benefits of a well-designed induction program?

A well-designed induction program offers several benefits, such as reducing anxiety,

nervousness, absenteeism, and employee turnover. It also helps minimize cultural shock,
integrates new employees, fosters a sense of belongingness, and strengthens the bond
between new and existing employees.

How does socialization impact employee adaptation in an organization?

Socialization helps employees adapt to the values and norms of work roles in the
organization. It provides a platform for employees to understand the traditions, history, and
policies of the organization, fostering a sense of cohesion and belongingness. Through
socialization, employees learn to work harmoniously with their colleagues, leading to a
smoother and more effective work environment.

What is the definition of training?

Training is a deliberate effort planned and implemented to change (improve) skills,

knowledge, and attitudes of an employee towards his/her job. It involves systematic and
planned instructional activities that promote learning.

How does training differ from development and education?

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Training is narrow in scope, focusing on improving employees' efficiency and productivity
through specific skills acquisition. Development, on the other hand, is a continuous process
that encompasses non-technical aspects such as decision-making and problem-solving,
aiming to help the employee grow and reach their full potential. Education is a lifelong
process of increasing general knowledge and understanding of the total environment.

What are the different skill levels required of an employee?

The skill levels required of an employee can be categorized into operational skills, which are
hands-on skills required to fulfill job responsibilities throughout the organization, and
supervisory/management skills, necessary for individuals in positions of authority to
effectively manage employees and achieve organizational objectives.

What are the justifications for providing training in an organization?

Training can be justified when the knowledge or skills required by the employee cannot be
acquired through experiential learning or self-managed training at the workplace. It is also
justified when there is a need for quick acquisition of different skills, especially when tasks
are specialized or complex and when multiple employees have similar learning needs.

What are some of the important reasons to go for training?

Some important reasons for providing training in an organization include equipping

employees to perform tasks more efficiently, saving costs by avoiding outsourcing of skills,
keeping up with technological changes, ensuring workplace safety, minimizing wastage, and
maximizing the full potential of employees.

What are the five training areas?

The five training areas are:

 Knowledge - Providing facts and information related to the job.
 Technical Skills - Teaching practical skills associated with performing job tasks.
 Social Skills - Focusing on interpersonal and customer service skills.
 Technique - Understanding how and when to apply acquired skills.
 Attitude - Developing favorable employee attitudes towards organizational goals.

What are the steps involved in developing training programs?

The steps involved in developing training programs are:

 Identification of training needs - Analyzing corporate and human resource plans to
determine gaps between job demands and employee capabilities.
 Setting Training Objectives - Defining specific, measurable, achievable, realistic, and
time-bound goals for the training program.
 Content - Structuring the logical flow and arrangement of the training content.
 Length - Deciding the duration of the training based on content and available resources.
 Follow-up and evaluation - Assessing the effectiveness of the training program in
achieving its objectives, evaluating the trainer's performance, and determining the
usefulness of the skills or tools imparted during training.

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What are some of the different training approaches used in organizations?

Some different training approaches used in organizations are:

 On-the-job training - Acquiring skills while performing the job in the actual work
environment.
 Simulation methods - Using models and simulations to estimate reliability and practice
skills.
 Knowledge-based methods - Building on existing knowledge to achieve additional
information through work activities.
 Experimental methods - Carrying out procedures to support assumptions and test
hypotheses.

What are the different methods of training and development mentioned in the provided
information?

The methods of training and development mentioned in the provided information include:
 Classroom lecture method
 Group discussion method
 Simulation exercise method
 Case study method
 Outward bound training (OBT) method
 Vestibule training method
 Apprenticeship training and internship methods
 Work shadowing and mentoring methods
 Programmed instruction method (PIM)
 Job rotation method
 Computer-based training (CBT) method
 Behavior modelling method
 Development centre method
 Large-scale interactive events (LSIE) method
 Sensitivity training or T group training or laboratory training method
 Management games method/business simulators
 Role playing method
 In-basket training (IT) method

How do organizations decide which training method to use?

Organizations decide which training method to use based on the objectives of the training.
They choose the method that they believe is most suitable to address the specific needs and
goals of the organization and its employees. Factors such as the nature of the skills to be
developed, the size of the audience, the available resources, and the desired outcomes
influence the selection of the appropriate training method.

What are the different phases involved in the process of training and development?

The process of training and development involves the following phases:

 Assessment of organizational goals and objectives phase (Analysis phase)
 Needs assessment phase
 Task and skill analysis phase (Development phase)
 Implementation phase

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 Monitoring and evaluation phase

How is the evaluation of training and development carried out?

The evaluation of training and development is carried out to ensure efficacy and
improvement of skills and competencies. There are three types of evaluation criteria: internal,
external, and participants' reactions. Organizations can use different evaluation models, such
as the Kirkpatrick Model, CIO Approach, CIRO Approach, and Phillip's Evaluation
Approach, to assess the outcomes of the training programs and determine their effectiveness.
The evaluation focuses on the participants' reactions, the knowledge and skills they acquired,
the changes in behavior resulting from the training, and the overall impact of the training on
organizational goals and objectives.

Criteria For Evaluation

What are the three types of evaluation criteria for training and development?

The three types of evaluation criteria for training and development are:
 Internal (content) evaluation, which focuses on the program content and what it
contains.
 External (overall objective) evaluation, which assesses whether the overall objective
of the training program was achieved.
 Participant's reaction (benefit) evaluation, which checks whether the participants feel
that the training or project has been beneficial to them.

Explain the Kirkpatrick Model and its four outcomes of a proper training program.

The Kirkpatrick Model is an evaluation model for training programs with four outcomes:
 Reaction: It assesses the participants' reaction and benefits from the training.
 Learning: It evaluates how much the participants have learned from the training
content.
 Behavior: It examines whether the job behavior has changed as a result of the
training.
 Results: It gauges the effects and outcomes of the training program, considering both
the external overall objective and the participants' reaction.

Describe the CIPP Evaluation Model and its components.

The CIPP Evaluation Model stands for Context, Input, Process, and Product. It is based
on the view that a proper training program should improve the function of employees in
an organization.
 Context Evaluation: It assesses the training and development needs analysis and the
formulation of objectives based on the results of the needs analysis.
 Input Evaluation: It examines the content provided in the training program and how
well it aligns with the objectives.
 Process Evaluation: It evaluates the implementation of the organizational action plan
and provides feedback to the organization and employees.

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  Product Evaluation: It measures the attainment of the training program's objectives
and looks at the participants' reaction to see if their behaviors have changed as a result
of the training.

What is the CIRO Approach for training program evaluation?

The CIRO Approach stands for Context, Input, Reaction, and Outcomes. It is used before
and after the training program and focuses on the program content, achievement of
objectives, participants' feelings of benefits, and the training program's results.

What is the main focus of the Phillip's Evaluation Approach for training programs?

The Phillip's Evaluation Approach focuses on the return on profits from the training program
and checks the success of the program through the organization itself.

How is training and development supported by national laws in Kenya?

The Employment Act recognizes the need for practical training and development of staff in
organizations, placing the responsibility on employers to ensure their employees are trained
to meet the required competencies. Additionally, the Law Society of Kenya Act requires
advocates to undertake continuous professional development, and specific regulations like the
Advocates (CPD) Regulations provide guidelines for training and development.

What is one limitation of training and development efforts in organizations?

One limitation of training and development efforts in organizations is the fear of wastage of
investment resources. Organizations may fear that employees will leave after being trained
and take their new skills to other organizations, leading to a perceived waste of investment in
training.

Career management and development

What are the stages in career development and management?

The stages in career development and management are as follows:

 Stage 1: Exploration - This is the initial stage where individuals explore their career
options based on their abilities and interests.
 Stage 2: Establishment and Achievement - In this stage, individuals enter the
profession and start building their career, gaining experience and possibly establishing
their own firms.
 Stage 3: Mid-career - At this stage, individuals continue to develop their career and
may specialize in a particular area or seek leadership roles.
 Stage 4: Late career - This stage involves the winding down of a career, approaching
retirement, or reducing workload.
 Stage 5: Decline - This is the transition stage where individuals leave the profession
for retirement or a new career.

What is the purpose of a career development plan?

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The purpose of a career development plan is to help employees set realistic goals, actualize
those goals, see realistic job progression, and fulfill educational and experience gaps. It
provides a roadmap for an individual's career growth and helps align personal goals with the
objectives of the organization.

How does the manager support an employee's career development plan?

The manager supports an employee's career development plan by assisting them in coming up
with the plan, evaluating the feasibility of goals, ensuring the availability of resources, and
developing plans to guide the employee's objectives. The manager also follows up on the
employee's progress in plan implementation and provides feedback and coaching.

What are the benefits of career development and management for both employees and
organizations?

Career development and management provide several benefits, such as reducing employee
attrition, ensuring equal opportunity employment, improving the use of employee skills,
enhancing the quality of work-life for employees, and ultimately improving the organization's
performance and productivity.

What are the challenges in career development?

Some challenges in career development include limited access to information and networking
opportunities, gender discrimination, lack of proper education and training, uncertainty after
promotion, and the need for continuous upskilling in a rapidly changing job market.

How can emerging trends impact career development and management?

Emerging trends, such as the need for continuous professional development, networking
culture, globalization, the impact of economic turmoil, and advancements in information
technology, can significantly impact career development and management. Professionals
need to stay updated with these trends to remain competitive and relevant in their respective
fields. Additionally, remote work and social media play a significant role in expanding
professional networks and accessing job opportunities.

What is the role of senior counsel in the legal profession?

Senior counsel can be used in two ways in the legal profession. In a colloquial sense, it refers
to any advocate who has been admitted to the role before others. However, the rank of Senior
Counsel is a formal title conferred on an advocate who has demonstrated exemplary service
not only within the legal fraternity but also to the public. It is a recognition of outstanding
achievements in the legal profession.

How does organizational development contribute to career management?

Organizational development is a process of improving an organization's performance. By

enhancing the performance of employees through career management and development, the
organization benefits from a skilled and motivated workforce, leading to increased
productivity and success in achieving its objectives. A well-developed workforce contributes
significantly to the overall growth and success of an organization.

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What is internal mobility in an organization?

Internal mobility refers to the vertical or horizontal movement of employees within an

organization. It can involve promotions, demotions, transfers, or job rotations.

How do promotions differ from demotions?

Promotions involve upward movement within an organization, usually accompanied by

higher status, salary, and responsibilities. On the other hand, demotions are downward
movements in the organizational hierarchy, often due to issues like incompetence or
disciplinary reasons.

What are the reasons why organizations choose to employ internal mobility?

Organizations employ internal mobility to improve efficiency, satisfy employee and

organizational needs, provide for career and succession planning, effect changes in job roles
and organizational structure, ensure discipline, and link organizational rewards to employee
performance.

Describe the different types of promotions.

Promotions can be categorized into three types:

a) Horizontal Promotion: A promotion to a senior position within the same job, without
changes in responsibilities.
b) Vertical Promotion: The standard promotion with increased salary, authority, and status.
c) Dry Promotion: A promotion without an increase in salary, but with other intangible
benefits.

What is the purpose of promotions in an organization?

The purpose of promotions in an organization is to recognize employees' skills and

knowledge, improve efficiency, reward and motivate employees, provide opportunities for
career advancement, boost morale, build loyalty, increase a sense of belongingness, and
retain skilled labor.

What are the two main bases for promotions, and how do they differ?

The two main bases for promotions are seniority and merit. Seniority is based on an
employee's length of service, while merit is based on an employee's performance and
competence.

What are the different types of transfers, and why would an organization choose to
transfer employees?

Different types of transfers include production transfers, remedial transfers, replacement

transfers, versatility transfers, shift transfers, and penalty transfers. Organizations choose to
transfer employees to meet organizational needs, satisfy employee needs, better utilize
employee competencies, improve employee versatility, adjust the workforce, provide relief,
and, in some cases, as a disciplinary measure.

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What should a good transfer policy include?

A good transfer policy should specify the circumstances of transfers, be communicated

clearly to employees, indicate the basis of the transfer (e.g., seniority or skill-based), specify
the jobs affected, clarify duties, salary, and allowances, provide clarity on whether the
transfer is temporary or permanent, not be done frequently, and be consistent with the overall
organizational objectives.

What is demotion, and what are the common causes of demotion?

Demotion is the downward movement of an employee in the organizational hierarchy, often

resulting in a lower rank, status, or pay. Common causes of demotion include incompetence,
disciplinary reasons, redundancy, downsizing, cost-cutting, lack of cooperation, failure to
adjust to change, or as a punishment.

What are the different forms of employee separation?

The different forms of employee separation include retirement, resignation, death, layoff,
retrenchment, and dismissal.

What criteria are typically used for employee separation?

Employee separation can be based on seniority, employee status, merit, skills, or a multiple
criteria ranking approach that considers various factors.

What elements should a good separation policy include?

A good separation policy should cover aspects like equipment handling, network access
termination, specific timing for separation, enforcement of the policy, and assistance with
transition for the separating employee.

What role does the human resources department play in internal mobility and
separation?

The human resources department plays a vital role in evaluating employees for promotions,
formulating internal mobility policies, facilitating communication, resolving disputes, and
preparing the workforce for changes related to internal mobility or separation. They also
handle aspects like effective communication and dispute mitigation.

CONTRCAT LAW

What is a contract?

A contract is a legally binding agreement between two or more parties which, if it contains
the elements of a valid legal agreement, is enforceable by law or by binding arbitration .

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What are the sources of contract law in Kenya?

Sources of contract law in Kenya:

 Common Law: Contract law in Kenya is primarily based on common law, which
means it is derived from judge-made decisions and precedents set by courts over time.
The Law of Contract Act itself does not provide detailed provisions; instead, the rules
governing contracts are established through judicial decisions.
 Doctrines of Equity: Injunctions, a remedy provided by equity, can also influence
contract law in Kenya. Equity seeks to provide fair and just solutions when common
law remedies may not be sufficient.
 The Constitution: Some provisions in the Kenyan Constitution have an impact on
contracts. For example, consumer protection is now explicitly enshrined in the Bill of
Rights (Article 46). It ensures consumers have rights to reasonable quality goods and
services, essential information, health and safety protection, and compensation for
losses arising from defects in goods or services. Parliament is mandated to enact
legislation for consumer protection and fair advertising.
 Legislation: The Law of Contract Act CAP 23 is a significant statute governing
contracts in Kenya. Other relevant statutes include the Sale of Goods Act,
Employment Act, Consumer Protection Act, and Competition Act.
 Customary Law: Customary law might apply in specific civil cases that are not
repugnant to justice and morality, where the parties belong to the same customary
group, and when it does not conflict with written laws governing the issue. However,
the effect of the Law of Contract Act could potentially exclude customary law, as it
incorporates the entire body of English Kenyan law.

What are the main contents of a contract?

The contebts may vary depending on the nature and complexity of the agreement, but
typically, it includes the following components:
 Title: The contract is usually titled as "CONTRACT" or "AGREEMENT" to clearly
identify its purpose.
 Description of Parties: The contract should begin by stating the names and identities of
the parties involved. This section identifies who the contract is between.
 Whereas Clause/Recitals: This part of the contract provides context and background
information regarding why the parties are entering into the agreement. It may outline the
intentions, purposes, or circumstances that led to the contract.
 Definitions and Interpretations: Contracts often contain a section that defines key terms
used throughout the agreement. This helps to avoid misunderstandings or disputes about
the meaning of specific words or phrases.
 Terms and Conditions: The heart of the contract lies in its terms and conditions. This
section outlines the rights, obligations, and responsibilities of each party. It specifies what
each party is required to do or refrain from doing to fulfill their obligations under the
contract.
 Termination Clause: This section defines the circumstances under which the contract
can be terminated and the process for doing so. It may include provisions for early
termination, breach of contract, or other triggers for ending the agreement.

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 Dispute Resolution: Contracts often include provisions for resolving disputes that may
arise during the course of the agreement. This can include methods such as arbitration,
mediation, or litigation.
 Governing Law: The contract may specify which jurisdiction's laws will govern the
interpretation and enforcement of the agreement.
 Amendments: This section outlines the process for making changes or amendments to
the contract. It typically requires any modifications to be made in writing and signed by
all parties.
 Entire Agreement Clause: This clause states that the written contract represents the
complete understanding between the parties and supersedes any prior oral or written
agreements.
 Confidentiality: If applicable, a confidentiality clause may be included to protect
sensitive information shared between the parties during the contract's execution.
 Indemnification: This section may outline the conditions under which one party agrees
to compensate the other for specific losses or liabilities.
 Assignment: The contract may include provisions regarding whether or not either party
can assign their rights or obligations to a third party.
 Severability: This clause ensures that if any part of the contract is deemed unenforceable
or invalid, the rest of the agreement remains intact.
 Waiver: The waiver clause states that failure to enforce a particular provision of the
contract at any given time does not mean the party waives the right to enforce it later.
 Drawn By: This section identifies who drafted the contract, which can be useful in case
of any disputes about the contract's language or interpretation.
 Attestation by Parties: At the end of the contract, there is a space for signatures or other
forms of authentication from each party, confirming their agreement to the terms.
It is essential for contracts to be clear, unambiguous, and legally enforceable. It's often a good
idea to seek legal advice when drafting or reviewing complex contracts to ensure all
necessary elements are included and the agreement aligns with relevant laws and regulations.

What are the elements of a contract ?

Elements of a contract:
A contract consists of several essential elements that must be present for a legally enforceable
agreement to exist:
 Offer and Acceptance: A valid contract requires a clear and definite offer made by
one party and accepted by the other party. The offeror is the one making the offer,
while the offeree is the one receiving the offer.
 Lawful Consideration: Consideration is something of value exchanged between the
parties, and it must be lawful (not illegal or against public policy). Consideration can
be money, goods, services, or promises to do or not do something.
 Lawful Object: The object of the contract must be lawful, meaning it must not
involve illegal activities or violate public policy.
 Intention to Create Legal Relations: The parties to the contract must intend for their
agreement to have legal consequences. Informal or social agreements typically lack
this intention.
 Capacity: Each party entering into the contract must have the legal capacity to do so.
This means they must be of sound mind, of legal age, and not under the influence of
any factors that might impair their judgment.

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What is an offer?

An offer is an expression of willingness to contract on specified terms, made with the

intention that it is to become binding as soon as it is accepted by the person to whom it is
addressed. The party who makes an offer is known as the offeror. The party to whom the
offer is addressed is known as the offeree. An offer can be by both an act or omission.
Communication of an offer is complete when it comes to the knowledge of the offeree.
Originally the courts would determine whether or not an agreement had been reached
between the parties by determining whether there had been a meeting of the minds. However,
the courts now adopt an objective test as to the offeror’s intention. Therefore if a reasonable
person believed that the alleged offeror implied by his words or conduct that he intended to
be bound then this may be sufficient for the offer to be valid in law, regardless of his actual
state of mind.

What are the fundamental rules governing an offer?

 The offer must be communicated to the person to whom you are making it. (It may be
oral or written)
 The offer must be clear as where there is uncertainty then it does not amount to a good
offer
 There must be knowledge of their offer

How are offers terminated?

Offers may be terminated in various ways, affecting their legal validity and enforceability:
 Revocation: The offeror can withdraw the offer at any time before it is accepted. The
revocation must be communicated to the offeree to be effective.
 Lapse of Time: An offer may specify a particular time frame for acceptance. If not, it will
lapse after a reasonable period.
 Failure to Comply with a Condition Precedent: If the offer is subject to specific
conditions, it will terminate if those conditions are not met.
 Death of a Party: If either the offeror or offeree dies before acceptance, the offer is
terminated. However, if the offeror dies after acceptance but before the fulfillment of the
contract, their personal representatives may still be bound by the agreement.
 Rejection: When the offeree expressly refuses the offer or rejects it through conduct, such
as remaining silent.
 Counter Offer: A counter offer by the offeree terminates the original offer and creates a
new proposal with different terms.

What is an invitation to treat?

An invitation to treat is a preliminary statement expressing a party's willingness to receive

offers. It is not an actual offer but an invitation for others to make offers. The distinction
between a genuine offer and an invitation to treat is essential, and it depends on the intention
of the party making the statement. Certain situations help determine whether a statement is an
invitation to treat, including advertisements, self-service and shop window displays, auctions,
invitations to tender (calls for bids or calls for tenders), and mere statements of price.

Explain the types of invitation to treat

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Types of invitation to treat:
 Advertisements: Generally, advertisements are considered invitations to treat.
However, under certain circumstances, an advertisement may be treated as a unilateral
offer if it involves a promise to pay a reward or perform an act upon acceptance. For
example, an advertisement offering a reward for finding a lost item is a unilateral
offer that can be accepted by anyone who performs the specified action.
 Self Service: When goods are on display in a self-service setting, such as in a
supermarket, the display is an invitation to treat. Customers making a purchase offer
at the checkout, and the shop can either accept or reject the offer.
 Shop Window Displays: Similar to self-service situations, displaying goods in a shop
window is an invitation to treat. Customers making a purchase offer at the counter,
and the shop has the choice to accept or reject the offer.
 Auctions: In an auction, the auctioneer's request for bids and the lots on display are
invitations to treat. Each bid made by participants represents an offer to buy the lot at
the price offered. Acceptance occurs when the auctioneer's hammer falls.
 Invitations to Tender (Calls for Bids or Calls for Tenders): Invitations to tender
are invitations for suppliers or contractors to submit offers for supply or service
contracts. The submission of bids in response to the invitation constitutes offers, and
the party issuing the invitation is not obligated to accept any of the offers received.
 Mere Statements of Price: If a party merely states the minimum price at which they
would be willing to sell, it is considered an invitation to treat. It is not a binding offer
until someone accepts the stated price and makes an offer to purchase at that amount.

What is the difference between a unilateral contract and a bilateral contract?

Unilateral Contract Bilateral Contract
 A promise in return for an act  A promise in return for a promise
 An ‘if...’ contract – offer is a promise  Offer and acceptance are both promises
 Offeror is bound only if the specific act is  Both parties are immediately bound
performed (provided there is consideration (provided there is consideration and intention to cre
and intention to create legal relations). legal relations)

What is acceptance?
An acceptance is a final and unqualified expression of assent to the terms of an offer. Since
acceptance is a final and unqualified assent to the terms of an offer, it must correspond
exactly with the offer made. It must be unequivocal and unconditional. The principle that a
valid acceptance must correspond exactly with the terms of the offer is sometimes referred to
as the mirror image rule.

What are the rules of acceptance?

Rules for acceptance:

 Acceptance must be absolute, unqualified, and unconditional. Counter offers do not
amount to acceptance and invalidate the original offer.
 Acceptance should be expressed in a usual and reasonable manner, unless the offer
specifies a particular method of acceptance.

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  Acceptance must be communicated to the offeror. Silence cannot constitute
acceptance.
 Mere inquiries or requests for information do not count as rejection; they do not
invalidate the original offer.

What is consideration?
Consideration is the essential element that makes a promise contractually binding. It is the
price or benefit offered by one party and accepted by the other, creating mutuality in the
contract. It can take various forms, such as a right, interest, profit, forbearance, or detriment,
and it must be provided by the promisee to enter into the contract. Without consideration, a
promise is generally not enforce

What are the rules of consideration ?

 Consideration must move from the promisee: The person who receives the promise
must provide the consideration for the promise, and it cannot come from a third party.
 Consideration must not be past: The consideration for a promise must be given in
return for that promise and cannot be something that has already been done in the
past.
 Consideration must be sufficient but need not be adequate: Consideration must have
some value in the eyes of the law, but it does not need to be of equal value to the
promise.
 Mutual love and affection is not sufficient consideration: A promise made out of love
and affection alone is not legally enforceable; there must be additional consideration.
 Consideration must be legal: The act or promise offered as consideration must be
lawful; illegal consideration renders the contract invalid.
 Consideration must flow from the plaintiff/promisee: The person to whom the
promise is made must provide the consideration for the promise.
 Performance of an existing duty: If a party is already obligated to do something, that
performance alone is not sufficient consideration for a new agreement, unless
additional benefits or detriments are involved.
 Part payment of Debt: Part payment of an existing debt may not be good
consideration to waive the balance, unless there is an additional benefit or agreement.
 Promissory Estoppel + Consideration: The equitable doctrine of promissory estoppel
may make a promise binding, even without consideration, if certain conditions are
met. It temporarily suspends rights but does not extinguish them.

Explain lawful object of a contract:

 The subject matter and purpose of the contract must be legal for it to be valid and
enforceable.
 Contracts involving illegal activities or against public policy are considered void and
unenforceable.
 Examples of illegal contracts include those to commit crimes, promote harmful
activities, defraud the government, promote corruption, or encourage sexual
immorality.
 An illegal contract creates no rights or obligations, and money or assets exchanged
under it are irrecoverable.
 Exceptions for recovery may exist if one party repents before substantial performance
or when parties are not equally to blame for the illegality.
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Explain the rules on intention to create legal relations:
 The intention to create legal relations determines whether an agreement is legally
binding.
 Social and domestic agreements are presumed not to have an intention to create legal
relations, but this presumption can be rebutted in certain cases.
 Commercial agreements are presumed to have an intention to create legal relations
unless expressly stated otherwise.
 Employment agreements are considered commercial agreements and are intended to
impose legal obligations on the parties.
 Advertisements often contain "mere puff" statements that are not legally binding, but
specific and serious pledges can be binding.
 Agreements between parents and children are usually not intended to be contracts, but
they may be enforced if parties have clearly manifested an intention to contract.

What are the key rules of capacity to contract?

 Capacity refers to the legal ability of a party to enter into a contract.

 Certain classes of persons have limited contractual capacity, including infants/minors,
drunken persons, persons of unsound mind, corporations, and undischarged
bankrupts.
 Infants can enter into binding contracts for necessaries, other necessaries, educational
contracts, and contracts for beneficial service. Certain contracts, like partnership
agreements, are voidable and can be repudiated during or after infancy.
 Contracts with drunken persons and persons of unsound mind are voidable if the other
party was aware of their condition at the time of contract.
 Undischarged bankrupts and corporations have specific legal restrictions on their
contractual capacity.
 Some contracts require specific formalities, such as writing, written evidence,
consent, or a signature, to be legally enforceable.
 These formalities promote certainty, genuineness, and state intervention in certain
transactions.
 Equity may recognize part performance to prevent injustice when formalities have not
been complied with.

What are voidable contracts, and how can they be terminated?

Voidable contracts are contracts that have the potential of being terminated by one of the
parties involved. They can be repudiated or avoided by one of the parties if certain conditions
are met, allowing them to escape liability on the contract.

What types of contracts are considered voidable when entered into by an infant?

Certain contracts entered into by an infant (a person under the age of majority) are considered
voidable. These contracts include partnership agreements, lease or tenancy agreements, and
contracts for the purchase of shares.

Can an infant partner be held liable for debts and liabilities of the partnership during
infancy?

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No, an infant partner is not liable for debts and other liabilities of the partnership during
infancy since the contract is voidable at their option. However, if the infant does not avoid the
contract during infancy or within a reasonable time after attaining the age of majority, they
may become liable for the debts and obligations of the firm from the date they became a
partner.

What are void contracts, and how are they different from voidable contracts?

Void contracts are contracts that are treated as nonexistent by the law. They confer no rights
and impose no obligations on the parties involved. Unlike voidable contracts, they are invalid
from the beginning and cannot be ratified or enforced.

Provide examples of contracts that fall under void contracts.

Contracts that are void include:

 All accounts stated with infants (debts admitted by an infant).
 Contracts for the supply of goods other than necessaries to infants.
 Money lending contracts with infants (an infant is not bound to repay any borrowed
money).

Does the principle of subrogation apply to money lending contracts with infants?

If an infant uses money borrowed under a void contract to purchase necessaries, the lending
party is put into the shoes of the party supplying the necessaries. They can then sue the infant
for the recovery of the amount borrowed, which was used to purchase the necessaries.

What are the requirements for a contract entered into by a drunken person to be
voidable?

For a contract entered into by a drunken person to be voidable, two conditions must be met:
a) The person must have been too drunk to understand their acts. b) The other party must
have been aware of the person's intoxicated condition at the time of entering into the contract.

How can a drunken person ratify a contract made during intoxication?

A contract entered into by a drunken person can be ratified when the person becomes sober.
Once ratified, the contract ceases to be voidable, and the person becomes bound by its terms.

What are the requirements for a contract entered into by a person of unsound mind to
be voidable?

For a contract entered into by a person of unsound mind to be voidable, two conditions must
be established: a) The person must have been too insane to understand their acts. b) The other
party must have been aware of the person's mental condition at the time of entering into the
contract.

How does the Doctrine of Part Performance apply to contracts that have not yet fulfilled
formalities like writing?

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 The Doctrine of Part Performance states that if parties have entered into an oral agreement,
and one of the parties takes actions in furtherance of the agreement before fulfilling
formalities like writing, the other party cannot deny the existence of the contract. This
doctrine prevents a party from avoiding their obligations by claiming that formalities have
not been fulfilled.

What is an exclusion clause ?

An exclusion clause is a contractual term that aims to limit or exclude the liability of one or
both parties in a contract for certain types of loss or damage that may arise from the
performance of the contract. These clauses are commonly used to protect one party from
potential risks or costs that may arise during the course of the contract.

How is an exclusion clauses incorporated into a contract ?

Incorporation by Signature: If a document containing an exemption clause is signed by the

parties involved in the contract, the court must be satisfied that the document contained the
terms of the contract, and the signature was voluntary. When a party signs a document
containing an exemption clause, it is presumed that they have accepted and agreed to its
terms. However, if it can be proven that the signature was obtained through fraud or
misrepresentation of the document's contents, the signature may be considered voidable at the
option of the innocent party.

Incorporation by Notice: When the exemption clause is not contained in a document

requiring a signature, the court must be satisfied that the party affected by the clause was
aware of its existence when the contract was entered into. If the exemption clause is brought
to the attention of the party before or at the time of entering into the contract, it may be
considered incorporated by notice. However, if the exemption clause is brought to the
attention of the party after the contract has been concluded, it may not be considered
incorporated into the contract.

What are express terms?

Express terms are the terms explicitly agreed upon and stated by the parties at the time the
contract is formed. These terms can be found in a written document, an oral agreement, or
even in a standard form provided by one party and accepted by the other. Express terms are
clear and specific, leaving no room for ambiguity about the parties' intentions and
expectations.
Examples of express terms:
 In a written employment contract, the salary, job responsibilities, and working hours are
typically expressed terms.
 In a purchase agreement, the price, quantity, and delivery date of the goods are
examples of express terms.

What are Implied Terms?

Implied terms are not expressly stated by the parties but are nonetheless considered part of
the contract because they are assumed to be intended by both parties or are required by law.
Implied terms can be further divided into four categories:

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a) Terms implied by fact: These are terms that are not explicitly mentioned in the contract but
are assumed to be part of it because both parties would have reasonably intended to include
them had they thought about it. The courts use two tests to determine implied terms:
 The officious bystander test: If an officious bystander were to suggest the term while
the parties were making their contract, they would respond with a "of course"
indicating its obviousness.
 The business efficiency test: The term is necessary to give the contract business
efficiency and make it work effectively.
b) Terms implied by law: These are terms that the court considers to be included in certain
types of contracts based on legal principles, common law, or statutes. They are implied to
protect the rights of the parties and to uphold the fairness and reasonableness of the contract.
c) Terms implied by custom: These terms can be implied into a contract when there is
evidence that they are typically part of similar contracts within a specific local custom or
trade practice.
d) Terms implied by trade usage: Similar to terms implied by custom, these terms are
routinely included in contracts made by parties involved in a particular trade or business.
They are implied by the courts based on common trade practices.

Example of an implied term: In an employment contract, an implied term might be that the
employer will provide a safe working environment for the employee, even if it is not
expressly stated in the contract.

In summary, express terms are explicitly agreed upon and stated, while implied terms are
inferred by the court based on the circumstances of the contract or the relevant laws and
customs applicable to the agreement. Both types of terms play a crucial role in defining the
rights and responsibilities of the parties in a contract.

What are vitiating factors?

Vitiating factors in contracts are circumstances or factors that, despite the presence of the
necessary elements of a valid contract (offer, acceptance, consideration, and intention to
create legal relations), render the contract unenforceable or void. These factors may lead to
the contract being treated as if it never existed (void) or allow one party to avoid or cancel the
contract (voidable).

What are the different types of vitiating factors?

The different types of vitiating factors in contracts include:

 Mistake: Mistake occurs when there is an error in understanding or knowledge about
a fundamental aspect of the contract. There are three categories of mistakes: a.
Common Mistake: Both parties make the same mistake regarding a fundamental
point, such as the existence or quality of the subject matter or the possibility of
performing the contract. b. Mutual Mistake: The parties are at cross-purposes and
have different understandings of the terms of the contract or the subject matter. c.
Unilateral Mistake: One party is mistaken, and the other party is aware of the mistake
or takes advantage of it.
Documents Mistakenly Signed: This type of vitiating factor arises when a party signs
the wrong document, mistakenly believing it to be something else. If the party can

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 prove that the document was fundamentally different from what they thought they
were signing, the contract may be voidable.
Mistake as to Quality of Subject Matter: This occurs when one party is mistaken
about the quality of the subject matter of the contract. If the mistake is material and
affects the contract's substance, the innocent party may avoid the contract.
 Misrepresentation: Misrepresentation involves a false or misleading statement made
by one party to induce the other party to enter into the contract. There are three types
of misrepresentation:
a. Fraudulent Misrepresentation: The false statement is made knowingly, without
belief in its truth, or recklessly, with no regard for its truthfulness.
b. Negligent Misrepresentation: The false statement is made carelessly, without
reasonable grounds for believing it to be true.
c. Innocent Misrepresentation: The false statement is made in the belief that it is true,
with reasonable grounds for that belief.
Misrepresentation by Conduct: Misrepresentation can also occur through actions or
conduct rather than verbal or written statements. It may arise when one party's
behavior creates a false impression or induces the other party to enter into the
contract.
Non-Disclosure: While silence or failure to disclose certain information generally
does not amount to misrepresentation, there are exceptions. In specific circumstances,
there may be a duty to disclose material facts, such as in contracts of utmost good
faith or when there is a fiduciary relationship between the parties.
 Legality: Illegality is a vitiating factor which concerns itself with the character of the
contract, unlike misrepresentation or mistake which are more concerned with whether
it was entered into voluntarily. Considerations of public policy are a major factor.
Contracts may be void or illegal at common law or by statute
 Duress: Duress refers to a situation where one party is coerced or forced into entering
a contract against their will due to the threat of violence, harm, or some other illegal
or improper pressure. If a party can prove that the contract was entered into under
duress, they may be able to avoid the obligations of the contract. Threats of violence,
threats directed at property, or economic duress (where financial well-being is
threatened) can be considered as forms of duress. Even if threats of violence were not
the sole reason for entering the contract, if they played a part in the decision, duress
can still be established.
 Undue influence: Undue influence is an equitable remedy that applies when one
party takes unfair advantage of another by exerting improper pressure that doesn't
meet the criteria for duress at common law. It is an imprecise term, and there are two
types: actual undue influence and presumed undue influence. Actual undue influence
occurs when a party was unable to exercise free will at the time of entering the
contract due to the dominating influence of the other party, which inhibits their
independent judgment. Presumed undue influence is presumed to exist in specific
relationships like parent-child, advocate-client, doctor-patient, etc., where the weaker
party is presumed to be under the influence of the stronger party. In such cases, the
burden shifts to the stronger party to show that the weaker party made an independent
decision. Undue influence can also apply to transactions that are unconscionable or
unfair, where one party takes advantage of their position to secure an unfair deal.

It is important to note that the effect of these vitiating factors on a contract may vary
depending on the jurisdiction and the specific circumstances of each case.

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What are the remedies for Misrepresentation?

The remedies for misrepresentation depend on the type of misrepresentation that has
occurred:
Rescission: Rescission is an equitable remedy available for all types of misrepresentation. It
involves setting the contract aside and treating it as if it never existed. Rescission aims to
restore the parties to their pre-contractual positions. When a contract is rescinded, the parties
are released from their obligations, and any consideration exchanged is returned. Rescission
is available in cases of innocent, negligent, and fraudulent misrepresentation.

However, there are certain limitations or bars to rescission:

 Affirmation: Rescission may not be available if the innocent party with full
knowledge of the misrepresentation and their right to rescind affirms the contract,
either through explicit statements or actions that imply an intention to continue with
the contract.
 Time Limit: The right to rescind may be time-barred, and the time frame varies
depending on the type of misrepresentation. For fraudulent misrepresentation, the
time runs from when the fraud is discovered or could have been discovered with
reasonable diligence. For non-fraudulent misrepresentation, the time runs from the
date of the contract itself, not the date of discovery.
 Third-Party Rights: Rescission may be barred if a third party has gained bona fide
rights for value in property under the contract. If goods obtained by misrepresentation
are sold to a bona fide purchaser for value, rescission may not be possible to recover
the goods.
 Impossibility to Restore: Rescission may not be available if it is impossible to restore
the parties to their pre-contractual positions, such as when the subject matter of the
contract has changed substantially.

Damages: Damages are another remedy for misrepresentation and are assessed based on
principles of tort. The purpose of damages is to compensate the innocent party for their
financial loss resulting from the misrepresentation. The amount of damages depends on
the type of misrepresentation:
 Fraudulent Misrepresentation: Damages aim to place the innocent party in the
position they would have been in if the misrepresentation had never occurred. This
includes compensating for financial losses suffered and potential opportunity costs,
such as loss of profits resulting from reliance on the misrepresentation. The claimant
can recover damages for all direct losses, regardless of foreseeability.
 Negligent Misrepresentation: Damages aim to compensate the innocent party for
reasonably foreseeable losses resulting from the misrepresentation.

Void contracts are contracts that are considered non-existent and lack legal force, making
them generally unenforceable. However, there are some exceptions where certain rights may
be enforced even in a void contract if it is not illegal. Contracts can be declared void either by
statute or by a court of law. Here are some key points about void contracts:

Contracts Void by Statute: Certain contracts are deemed void by specific laws or statutes.
For example:
 Under the Employment Act, a contract to pay wages or salary in kind is null and void.
 The Gaming Act of 1845 declares wagering contracts (contracts based on uncertain
events with consideration depending on the outcome) as void.

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Contracts Void at Common Law (Courts of Law): Contracts can also be declared void by
courts of law for being contrary to public policy. Some examples include contracts that: A.
Attempt to oust the jurisdiction of the court, denying parties the right to seek judicial redress.
B. Interfere with the institution of marriage, such as marriage brokerage contracts or contracts
encouraging separation. C. Are in restraint of trade, restricting a person's future ability to
engage in a profession or trade in a certain manner or with specific individuals. For example,
an employee covenant not to work for a business rival after leaving employment.
However, for contracts in restraint of trade, there are certain circumstances where they may
still be enforced if certain conditions are met, including:
 The restraint was reasonably necessary to protect the interests of the party imposing
the restraint.
 The restraint was reasonable for the party being restrained.
 The restraint was not harmful to the public interest.

How can contracts be discharged/ terminated ?

Contracts can be discharged, meaning they come to an end, in several ways. Here are the
ways in which a contract can be discharged:

 Discharge by Performance: The most common way a contract is discharged is by

complete and precise performance of all obligations by both parties. However, exceptions
exist for contracts with severable obligations, where payment is due as specified parts of
the contract are rendered. In such cases, partial performance may be accepted, and
damages may be awarded for any incomplete aspects of the contract.
 Discharge by Agreement: A contract can be discharged if both parties agree to end it or
vary its terms. For this agreement to be enforceable, consideration is generally required,
except in cases of wholly executory consideration, where exchanged promises to release
each other from the contract are sufficient. If consideration is executed, a deed or new
consideration (accord and satisfaction) may be needed.
 Discharge by Breach of Contract: If one party fails or refuses to perform their
obligations without lawful excuse, it results in a breach of contract. Breaches can be
repudiatory, serious breaches that allow the innocent party to consider themselves
discharged from further obligations, or anticipatory, occurring before the performance is
due.
 Discharge by Frustration: Frustration occurs when events beyond the control of either
party make the performance of the contract impossible or illegal. It can also happen if
there is a significant change in circumstances that destroys the central purpose of the
contract. In cases of frustration, the contract ends at the moment of frustration, releasing
both parties from further obligations.
 Discharge by Novation: Novation is when the parties mutually agree to substitute the
original contract with a new one, with new rights and obligations. The old contract is
extinguished, and the new contract takes its place.
 Discharge by Operation of Law: A contract can be discharged by operation of law in
various situations. For example, it can be discharged by death if it involves personal skill
or ability of the promisor, or by insolvency if a person is declared insolvent. Unauthorized
alteration of the written agreement, as well as the vesting of rights and liabilities in the
same person, can also lead to the discharge of the contract.

Explain frustration of a contract?

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A contract can be frustrated under specific circumstances, which include:
 Destruction of Subject Matter: If the subject matter of the contract is destroyed before
performance, and neither party is at fault, the contract can be frustrated. The destruction
must significantly impact the commercial characteristics of the subject matter.
 Non-occurrence of an Event: If a contract is based on a particular event or state of affairs
that fails to happen as expected, and the event was the sole foundation of the contract, it
can be frustrated.
 Illegality: If performance becomes illegal due to a change in the law, the contract is
frustrated and discharged.
 Death or Permanent Incapacitation: In contracts involving personal service or
performance, like employment contracts, the death or permanent incapacitation of a party
can frustrate the contract.
 Government Intervention: If government policy, act, or regulation makes it impossible for
a party to fulfill their contractual obligations, the contract may be frustrated.
 Supervening Events: Events that significantly delay performance and change the
commercial characteristics of the contract can frustrate it.

What is the consequence of frustration?

Frustrated contracts in Kenya ae governed by the Law Reform (Frustrated Contracts) Act,
1943 which applies in Kenya as a statute of general application by reason of the schedule to
the Law of Contract Act.

Under this Act, when a contract is frustrated:-

1. It is terminated
2. Money pad is recoverable
3. Money payable ceases to be payable
4. If a party has suffered loss by reason of performance, the court may order the other to
pay to such party a sum of money
5. If a party has derived benefit other than financial, the court may order such party to
pay to the order a sum of money which must be less than the benefit it so derived.

How can one discharge for breach of contract?

When a contract is breached, it does not automatically discharge the contract, but it provides
the innocent party with certain options. The breach of contract can be either anticipatory or
actual.

Anticipatory Breach of Contract: Anticipatory breach occurs when one party to the
contract clearly indicates, either expressly or implicitly, that they will not perform their
obligations on the due date. The innocent party has several options in response to an
anticipatory breach:
a) Sue in Damages: The innocent party can choose to sue for damages caused by the
anticipatory breach. They need to prove the anticipatory breach and their willingness to
perform their part of the contract.
b) Wait for Performance: The innocent party can wait until the due date to see if the
breaching party performs their obligations. If they do not, the innocent party can take further
action.

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c) Sue for Specific Performance: In certain cases, the innocent party may seek the equitable
remedy of specific performance, which compels the breaching party to perform their
obligations as agreed in the contract. The court may grant this remedy if the circumstances
warrant it.
It's important to note that if the contract is frustrated during the period of waiting for
performance, the innocent party loses all remedies.

Actual Breach of Contract: Actual breach occurs when a party fails to perform their
contractual obligations on the due date or provides defective performance. In case of actual
breach, the innocent party can treat the contract as repudiated and terminate it if the breach is
fundamental to the contract. This means that the breach goes to the root of the contract and
renders it incapable of being performed as intended.

Discharge by Operation of Law:

Discharge by operation of law refers to situations where the law itself frees the parties from
their contractual obligations. It can occur due to the following circumstances:
1. Merger: When the terms of a simple contract are incorporated into a subsequent
written agreement between the parties, the simple contract is discharged by operation
of law.
2. Death: In contracts involving personal service or performance, such as employment
contracts, the death of a party discharges the contract.
3. Lapse of Time: If time is considered essential in the contract, and a party fails to
perform within the prescribed time, the contract is terminated by operation of law.
These situations automatically discharge the parties from their contractual obligations without
the need for further action or intervention by either party.

What are contracts of ubberimae fidei?

Contracts of uberrimae fidei, also known as contracts of utmost good faith, are a specific type
of contract where the parties are required to exercise the highest level of honesty, openness,
and full disclosure of all relevant information. These contracts are based on the principle that
both parties must act with utmost good faith and not withhold any material facts or
information that could influence the decision-making process.

Insurance contracts are the most common examples of uberrimae fidei contracts. In insurance
agreements, the insured is obligated to provide all relevant and accurate information about the
risk being insured, and the insurer must do the same regarding the terms and conditions of the
policy. Both parties must disclose any material facts that could affect the risk assessment or
the insurance premium.

The principle of utmost good faith imposes a duty on the parties to actively disclose any
information that could impact the contract and to refrain from misrepresenting or concealing
relevant details. If one party fails to fulfill this duty and provides false or incomplete
information, it may lead to the contract being voided or the insurer refusing to pay a claim.
Apart from insurance contracts, other examples of contracts of uberrimae fidei may include
contracts for the sale of land, contracts involving fiduciary relationships, and contracts in
which one party has superior knowledge or expertise that the other party relies upon. In such
cases, the party with more information or expertise is required to disclose any material facts
that the other party may not be aware of, to maintain the principle of utmost good faith.

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Can children enter into contracts? What it the legal position?

 As a general rule minors cannot enter into contracts. However, there are circumstances
where a minor can enter into a valid contract; a minor can contract for necessaries
(section 4 of the sale of goods Act defines necessaries as goods suitable to the condition
in life of a person. The court has to determine what is appropriate for a particular minor’s
condition in life (Nash v Inman)
 A minor can also enter into contracts for the minor’s benefit for example contracts of
service apprenticeship and education.

What are conditions, warranties an innominate terms?

Conditions:
 Conditions are the most crucial terms of a contract and are considered to "go to the
root" of the contract.
 A breach of a condition is significant, and it would mean that something essential to
the contract has failed, making the contract impractical to continue.
 If a condition is breached, the non-breaching party can access the full range of
contractual remedies and may have the right to terminate the contract.
 The importance of a term, whether it is a condition or not, is determined by its gravity
at the time of making the contract and at the time of the breach.
Warranties:
 Warranties are contractual terms of lesser importance compared to conditions.
 Breach of a warranty is less significant, and the contract might still be able to continue
after such a breach.
 Warranties do not "go to the root" of the contract, and their breach is less likely to be
fatal to the entire contract.
 When a warranty is breached, the injured party is limited to claiming damages, and
they do not have the right to terminate the contract.
Innominate Terms (Intermediate Terms):
 Innominate terms are neither conditions nor warranties; their classification depends on
the gravity of the breach.
 The importance of an innominate term can vary based on the specific circumstances at
the time of contract formation and at the time of breach.
 Depending on the seriousness of the breach, an innominate term can be treated as
either a condition or a warranty.
 Courts will analyze the consequences of the breach to determine whether it is closer in
nature to a condition or a warranty.

What is the difference between conditions and warranties?

 Conditions are major and essential terms, and their breach allows the non-breaching
party to terminate the contract and claim damages.
 Warranties are minor terms, and their breach does not entitle the non-breaching party
to terminate the contract, but they can still claim damages.
It's important to note that the categorization of terms as conditions, warranties, or innominate
terms can vary depending on the jurisdiction and the specific language used in the contract.
Legal interpretations and precedents in different countries may influence how these terms are
treated in a given context.

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What are implied and express terms?
In the context of Kenyan contract law, the concepts of implied and express terms are
recognized, and they are generally governed by the principles of the common law and
statutes. Here's how they are understood in the Kenyan legal position:

 Express Terms in Kenya: Express terms in Kenyan contract law are those terms that are
explicitly and clearly stated by the parties in the contract, either in writing or verbally.
These terms can be found in the written contract document itself or in any other document
that is expressly referred to in the contract. Express terms are crucial as they provide
certainty and clarity to the rights and obligations of the parties, and they are legally
enforceable.
 Implied Terms in Kenya: In Kenya, implied terms are terms that are not explicitly stated
by the parties but are considered to be part of the contract based on specific legal
principles and customs. Implied terms can be implied by fact or implied by law.

a. Implied by Fact: These are terms that the court infers to be part of the contract based on
the circumstances surrounding the agreement and the presumed intentions of the parties.
These terms are deemed necessary to give business efficacy to the contract or to reflect the
parties' presumed intentions.
b. Implied by Law: These are terms that are not based on the parties' actual intentions but
are imposed by law to protect the interests of one or both parties. These terms are often
implied as a matter of public policy and to promote fairness and justice in contractual
relationships.
It's important to note that the exact implied terms in specific contracts may vary depending on
the nature of the agreement and the applicable legal provisions. In Kenya, contract law is also
influenced by various statutes, such as the Sale of Goods Act, the Employment Act, and other
relevant legislation, which may further define and govern the implied terms in specific types
of contracts.
To fully understand the implied and express terms in a particular contract or legal situation in
Kenya, it's advisable to seek legal advice from a qualified Kenyan lawyer who can provide
up-to-date and jurisdiction-specific guidance.

What are the remedies for breach of contract?

 Damages: This financial remedy compensates the injured party for the consequences of
the breach. Damages aim to put the innocent party in the position they would have been
in if the contract had been fulfilled. Damages can be nominal (symbolic) or substantial
(actual loss suffered).
 Specific Performance: This equitable remedy compels the party in breach to perform
their part of the contract. It is granted when damages are inadequate, and the subject
matter is unique or has rare characteristics (e.g., land).
 Restitution: This remedy requires the defendant to forfeit any gains obtained from the
breach. It is used to restore the injured party to their financial position before the contract
and prevent unjust enrichment of the defendant.
 Quantum Meruit: This legal theory determines the value of services rendered in a
contract where there is no written agreement specifying the amount due. It ensures the
party is paid a fair amount for their services.

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 Injunction: This court order either restrains a party from doing something (prohibitory
injunction) or compels them to undo a wrongful action (mandatory injunction). It is an
equitable remedy awarded when monetary compensation is inadequate or to maintain the
status quo.
 Rescission: This remedy aims to restore the parties to the position they were in before the
contract. It is available when a contract is vitiated by misrepresentation, but the right to
rescind may be lost due to delay, affirmation, third-party rights, or impossibility of
restitution.

Why damages?

Damages place the plaintiff in the position he would have been had the contract been
performed.

Explain when one may loss their right to a remedy

When a person’s legal or equitable rights are violated, he is said to make a cause of action
e.g. breach of contract, negligence, nuisance etc. Causes of actions are not enforceable in
perpetuity. The law prescribes the duration within which causes of action must be enforced.

The Limitation of Action Act prescribes the duration within which causes of action must be
enforced. If not enforced within the prescribed time the action becomes statute barred and is
unenforceable.

E.g. a breach of contract must be enforced within 6 years.

 Negligence 3 years
 Nuisance 3 years
 Defamation 1 year
 Recovery of rent 6 years
 Recovery of land 12 years
 Enforcing an arbitral award or court order 6 years
 Assault 3 years
 Battery 3 years
 False Imprisonment 3 years

The prescription of the duration within which a cause of action must be enforced may be the
duration within which a cause of action must be enforced may be justified on policy grounds.

It ensures that justice is administered on the basic of the best available evidence. It ensures
that disputes are settled as and when they occur.

When does time start running?

As a general rule, time starts running on the date the cause of action accrues or arises.

However the running of time may be postponed in certain circumstances e.g

1. If the prospective plaintiff is an infant or minor, time starts running when it attains the
age of the majority or dies whichever occurs first.

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 2. If the prospective plaintiff is of unsound mind, time starts running when he becomes of
unsound mind or dies whichever comes first.
3. If the prospective plaintiff is labouring under ignorance, fraud or mistake time starts
running when he ascertains the fact or when a reasonable person would have
ascertained.
4. If the prospective defendant is the president, time starts running when he leaves office or
dies whichever occurs first.

When time starts running, it generally runs through and the action becomes statute barred.
However, a statute barred action may be enforced with leave of the court if it is proved that
the failure to sue was justified.

If a contract lacks any of these 8 elements it becomes an invalid contract

What is caveat emptor?

"Caveat emptor" is a Latin phrase that translates to "buyer beware" in English. It is a

principle of contract law that places the responsibility on the buyer to thoroughly inspect and
assess the quality and condition of a product or item before making a purchase. In other
words, when "caveat emptor" applies, the seller is not obligated to disclose any defects or
issues with the product, and the buyer is expected to exercise due diligence in evaluating the
purchase.
The concept of caveat emptor is based on the idea that the buyer is in a better position to
assess the value and suitability of the product since they have the opportunity to examine it
closely before finalizing the transaction. This principle is commonly applied in the sale of
used or second-hand goods, where the buyer is presumed to be aware of any wear and tear or
potential issues that may exist.
However, it is essential to note that the principle of caveat emptor is not absolute and may be
subject to various exceptions and consumer protection laws. In some cases, sellers may still
be held liable for certain defects or misrepresentations, especially if they intentionally
deceive the buyer or withhold crucial information about the product. Additionally, consumer
protection laws in many jurisdictions provide specific rights and remedies for buyers in cases
of deceptive practices or defective products, which may override the principle of caveat
emptor.

What is the difference between rescission and repudiation in a contract?

Rescission and repudiation are both legal concepts related to the termination of a contract, but
they have distinct meanings and implications. Here's a breakdown of the difference between
rescission and repudiation in a contract:
Rescission: Rescission refers to the cancellation or undoing of a contract, as if it never
existed. It is a remedy available when a contract is voidable due to factors such as fraud,
misrepresentation, mistake, duress, or undue influence. Rescission allows the innocent party
to treat the contract as if it never took place and to be restored to the position they were in
before entering into the contract.
Key characteristics of rescission include:
 Retroactive Effect: Rescission operates retrospectively, treating the contract as if it were
null and void from the beginning.
 Mutual Consent or Court Order: Rescission can occur by mutual agreement between
the parties involved or through a court order based on a legal ground for rescission.

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 Restoration of Consideration: In rescission, both parties are required to return any
benefits received from the contract to restore the status quo ante (the original position
before the contract was made).
Repudiation: Repudiation occurs when one party to a contract clearly and unequivocally
communicates an intention to no longer fulfill their obligations under the contract. It is a
breach of contract that occurs before the time for performance, indicating a party's
unwillingness or inability to carry out their contractual duties.
Key characteristics of repudiation include:
 Anticipatory Breach: Repudiation is an anticipatory breach, meaning it occurs before
the actual time for performance arrives.
 Unilateral Action: Repudiation is a unilateral act by one party, indicating their intention
not to fulfill their contractual obligations.
 Remedies for Breach: When repudiation occurs, the innocent party may treat the
repudiation as a breach of contract and pursue remedies such as claiming damages or
seeking specific performance.
In summary, rescission involves the cancellation of a contract due to voidable factors, with a
retroactive effect, while repudiation refers to one party's clear indication of their intention not
to fulfill their contractual obligations, leading to an anticipatory breach of the contract.

TORT LAW

What is a tort ?

A tort is a civil wrong or injury that causes harm to a person's legal rights, property, or
reputation, for which the remedy is typically unliquidated damages, meaning the
compensation is not pre-determined but left to the discretion of the court. Tortious liability
arises when a duty fixed by law is breached, and this breach can be redressed by seeking
unliquidated damages through legal action.

What are the components of a tort?

Key Components of a Tort:

 Act (or Omission): A tort can result from an action taken by someone (commission) or a
failure to act when there was a legal duty to do so (omission).
 Causation: There must be a causal link between the defendant's action or inaction and the
harm suffered by the plaintiff. In other words, the plaintiff must show that the defendant's
actions directly led to the injuries or damages.
 Fault: In many tort cases, the concept of fault or negligence comes into play. The
defendant's actions are judged against a standard of reasonable care, and if they fail to
meet that standard, they may be held liable for the resulting harm.
 Protected Interest: A tort involves a violation of a legal right or interest. This can include
personal safety, property rights, reputation, and other interests that the law seeks to
safeguard.
 Damage: To have a valid tort claim, the plaintiff must demonstrate that they suffered
actual harm or damages due to the defendant's actions. Damages can be physical,
emotional, or financial in nature.
The functions of tort law are primarily to compensate for losses caused by accidents, to deter
undesirable behavior through legal consequences, and to protect the rights of individuals in
disputes. By awarding compensation (damages) or issuing injunctions, tort law aims to rectify
the harm caused and prevent further harm in the future.

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It's essential to note that the law of torts covers a wide range of circumstances, and the
specific elements required for establishing liability may vary depending on the particular tort
in question (e.g., negligence, battery, defamation, etc.).

What is negligence
Negligence is the breach of a legal duty to take care, resulting in damage to the plaintiff that
was not desired by the plaintiff. In the context of legal cases, negligence refers to the failure
of an individual or entity to exercise reasonable care, which leads to harm or injury to another
person or their property.

What are the components of negligence

The components of a trot of negligence typically include the following:

 Duty of care: The first component is establishing that the defendant owed a duty of care
to the plaintiff. Duty of care is a legal obligation to act in a way that avoids causing harm
to others. It was famously established in the landmark case of Donoghue v Stevenson,
where the "neighbor principle" was introduced, imposing a universal duty to take care
towards others. This means that individuals or entities can owe a duty of care to others,
even if there is no contractual relationship between them.
 Breach of duty: The second element involves proving that the defendant breached their
duty of care. This means that the defendant failed to meet the standard of care that a
reasonable person in a similar situation would have exercised. The court may apply the
"reasonable person test" to determine whether the defendant's conduct fell below the
expected standard.
 Causation: The third element is establishing a causal link between the defendant's breach
of duty and the plaintiff's harm or injury. This means proving that the defendant's
negligence was a direct cause of the damages suffered by the plaintiff. In legal terms,
there are two aspects of causation: factual causation and legal causation. Factual
causation involves showing that "but for" the defendant's actions, the harm would not
have occurred. Legal causation, on the other hand, considers whether it is fair and just to
hold the defendant legally responsible for the harm caused.
To succeed in a tort of negligence claim, all three components must be proven by the
plaintiff. If any of these elements cannot be established, the claim may not succeed. It is
essential to provide evidence and arguments to support each component in a negligence case.

What is the doctrine of Res Ipsa Loquitor?

As a general rule, the burden of proving negligence lies with the plaintiff. However, in certain
cases, the plaintiff's burden of proof is relieved by the doctrine of res ipsa loquitor. Res ipsa
Loquitor means that “thing or facts speaks for themselves”. Before it can be relied upon,
three conditions must be satisfied, namely:
a. The thing inflicting the injury must have been under the control of the defendant or
someone whom he controls.
b. The event must be such that it could not have happened without negligence and
c. There must be no evidence or explanation as to why or how the event occurred, as the
accident is such as in the ordinary course of things does not happen if those who have the
duty use proper care.

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In the case of Bryne vs. Boadle , a barrel of flour fell from a warehouse to the defendant onto
the plaintiff injuring him in the street while he was passing through. In the circumstances, the
Court held that the plaintiff was not required to show how the accident took place because on
the facts, negligence could be presumed and the rule of res ipsa loquitor applied.

What are the defences of neglsigcne

The defenses for negligence that can be raised by the defendant in a legal case are as follows:

Volenti Non Fit Injuria: Volenti Non Fit Injuria is a Latin term that translates to "to one
who volunteers, no harm is done." This defense applies when the plaintiff knowingly and
voluntarily assumes the risk of the dangerous activity or situation that leads to harm. The key
element here is consent, and it goes beyond mere knowledge of the risk. The plaintiff must
have freely and willingly accepted the risk.
For example, if the plaintiff hitches a ride with a drunk driver and is injured in an accident,
the defendant may argue that the plaintiff voluntarily accepted the risk of riding with an
intoxicated driver and, therefore, cannot hold the defendant liable.
Similarly, if the plaintiff encourages another person to create a risky situation, they may not
be able to recover damages if harm results from that situation.

Contributory Negligence: Contributory negligence is a defense that reduces the claimant's

award of damages if the claimant's actions or omissions contributed to the harm they
suffered. This defense applies when both the plaintiff and the defendant are at fault for the
accident or the extent of the harm.
For instance, if both the plaintiff and the defendant were driving negligently, and their
negligence led to a collision, the plaintiff's damages may be reduced based on their
percentage of fault.
Another example is if the plaintiff fails to take reasonable safety precautions, such as not
wearing a seat belt in a car or a helmet on a motorcycle, which leads to more severe injuries
in an accident. In such a case, the damages awarded to the plaintiff may be reduced due to
their contribution to the severity of the injuries.

Ex Turpi Causa Non Oritur Actio: Ex Turpi Causa Non Oritur Actio is a Latin term that
means "from a dishonorable cause, an action does not arise." This defense states that if the
plaintiff's injury or harm resulted from illegal or immoral conduct on their part, they cannot
bring a claim for damages.
For example, if someone gets injured while attempting to commit a crime, the court may hold
that the injured party cannot seek compensation for their injuries because they engaged in
unlawful activities.

Exclusion Clause: An exclusion clause is a contractual provision that limits or excludes one
party's liability for certain events or damages. However, for an exclusion clause to be valid
and enforceable, it must be reasonable and properly incorporated into the contract.

What are the remedies for negligence?

The remedies for negligence under Kenyan law primarily involve the award of damages to
compensate the injured party for their losses. There are different types of damages that may
be awarded, depending on the circumstances of the case:

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 Nominal Damages: Nominal damages are awarded when the claimant proves that the
defendant committed a tort (such as negligence) but did not suffer any significant
financial loss or harm. The purpose of awarding nominal damages is to acknowledge the
plaintiff's right to a legal remedy, even though their actual losses are minimal.
 General Damages: General damages are damages that are presumed to flow naturally
from the tort and do not require specific evidence of the amount of loss. These damages
are awarded for injuries or losses that are typically associated with the type of tort
committed. For instance, in a negligence case, general damages may cover pain and
suffering, emotional distress, or loss of reputation (in a defamation case).
 Special Damages: Special damages, also known as specific damages, refer to the actual
measurable financial losses that the claimant has suffered as a direct result of the
defendant's negligence. Unlike general damages, special damages must be specifically
pleaded and proven by the claimant as part of their cause of action. These damages are
unique to the individual case and can include medical expenses, property damage, lost
wages, and other tangible financial losses.

It's important to note that the objective of awarding damages in negligence cases is to fully
compensate the injured party for their losses and put them back in the position they would
have been in had the tort not occurred. The amount of damages awarded will vary based on
the extent of the harm caused and the evidence presented during the legal proceedings.

What is trespass ?

Trespass is a wrongful interference with one's body or property without consent, and it can
take different forms: trespass to land, trespass to person, and trespass to goods. Each form of
trespass has its specific elements and defenses, as follows:

Explain Trespass to Land and the defences

Elements:
a. Possession: The plaintiff must be in possession of the land at the time of the trespass.
b. Interference: The defendant must directly interfere with the plaintiff's possession of the
land, such as entering the land without permission or remaining on the land after the right to
be there has ended.
Defenses:
a. Statutory authority: If the law allows entry upon the land, it can be a defense against
trespass.
b. Entry by license: If the defendant entered the land with the authorization of the landowner,
unless the authority is abused.
c. Adverse possession: If the land has been peacefully possessed by the defendant for over
12 years without disturbance.
d. Act of necessity: For example, entry to put off fire for public safety may be justifiable.
e. By order of a court of law: If the defendant entered the land as part of the execution of a
court order.
f. Self-defense: A trespasser may be excused if the actions were taken in self-defense or the
defense of a person's goods, chattels, or animals.
g. Re-entry on land: If a person wrongfully dispossessed of land retakes possession
peacefully, they will not be liable for trespass to land.
h. Re-taking of goods and chattels: If a person unlawfully takes goods and chattels of another
on their own land, they imply license the owner to enter the land to recapture the goods.

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What are the remedies for Trespass to land ?
 Defense of property: He may have to use force till he gets possession but not unnecessary
amount of force of violence. This is called remedy of ejection.
 Expulsion of trespasser especially in case of continued trespass.
 Distress damage feasant: He may seize and retain them impounded as a pledge for the
redress of the injury sustained.
 Damages: This means recovery of monetary compensation from the defendant.
 Injunction: This may be obtained to ward off a threatened trespass or to prevent a
continuing trespass.
 Action for recovery of Land: In case the plaintiff is wrongfully dispossessed of his land
he can sue for the recovery of the land from the defendant.

Explain Trespass to Person:

 Elements:
a. Assault: The defendant threatens to use force against another person, putting the person in
fear of immediate danger.
b. Battery: The defendant intentionally causes physical contact with the person of the plaintiff
without their consent.
c. False Imprisonment: The total restraint or deprivation of the liberty of a person without
lawful justification.
 Defenses:
a. Volenti non-fit injuria: Consent by the plaintiff to come into bodily contact with another
person, such as in sports.
b. Private defense: A person can defend themselves, their property, or their family using
reasonable force proportional to the risk.
c. Legal authority: For example, police officers have statutory authority to arrest a person in
the preservation of public peace.
d. Forceful entry: The rightful owner of property can use reasonable force to prevent forcible
entry onto their land or to repossess their land or goods wrongfully in possession of another.
e. Parental authority: Parents or similar guardians can inflict reasonable punishment for the
correction and benefit of children.

Explain Trespass to Goods:

 Elements:
a. Trespass to Chattels: Interference with goods in the actual or constructive
possession of the plaintiff, such as removing, using, or damaging the goods
wrongfully.
b. Trespass to Detenue: Wrongful withholding or detention of goods from the person
entitled to immediate possession.
c. Trespass to Conversion: Dealing with goods in a manner inconsistent with the right
of the person in possession of them.
 Defenses: The defendant may claim the right of lien or other general defenses like
statutory or judicial authority.

What are the remedies to trespass to goods ?

 Recaption: The plaintiff can recapture his goods that have been wrongfully taken away
from him provided he uses reasonable force;
 Order for Specific Restitution: The court may also order for specific restitution of the
goods where damages is not an adequate remedy.

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 Damages: The principal remedy available is a monetary award in damages and the
plaintiff is entitled to the value of the goods he has been deprived. The value is
determined as per the date of conversion. The plaintiff is entitled to claim the full value of
the goods and damages for any inconvenience suffered by him. If the plaintiff suffers a
pecuniary loss as per the result of the conversion he is entitled to special damages.

What is occupiers liability laws used for and what governs it in Kenya?

Occupiers' Liability in Kenya is governed by the Occupiers' Liability Act, which outlines the
duty of care that occupiers owe to visitors and others lawfully on their premises. The occupier
is the person who has sufficient control over the premises to be responsible for the safety of
visitors. The Act imposes a common duty of care on the occupier to ensure that visitors are
reasonably safe while using the premises for the purpose they are invited or permitted to be
there.

Who are visitors under the Occupiers' Liability Act?

Visitors include invitees and licensees, as well as persons who enter the premises in the
exercise of a right conferred by law, such as policemen and firemen carrying out their lawful
duties. The duty of care is to be exercised in all the circumstances of the case and takes into
account the age and special calling of the visitor.

Occupiers' Liability Act Section 3(1) and (2) specify the common duty of care an occupier
owes to visitors. The duty of care extends to both damage to property and injury to the
person. However, an occupier may escape liability if the injury or damage is caused by a
danger of which the occupier had warned the visitor or if it is caused by the fault of an
independent contractor.

common duty of care. This duty requires the occupier to take reasonable care in all
circumstances to ensure that visitors will be reasonably safe while using the premises for the
purposes for which they are invited or permitted to be there.
The duty of care takes into account various factors and considerations, some of which are
highlighted in the provided information:
 Duty of Care as to Children: An occupier must be prepared for children to be less
careful than adults. Children may not recognize obvious dangers that adults would avoid,
and certain dangerous objects may allure children but not adults. Therefore, the occupier
must take extra precautions to guard child visitors against dangers that adults do not need
protection from.
 Persons in Special Calling: The occupier may expect that a person in the exercise of a
special calling, such as a specialist hired to deal with a specific task (e.g., an electrician),
will appreciate and guard against any special risks typically associated with that calling.
In such cases, the occupier may leave the specialist free to take appropriate precautions.
 Warning: In most cases, warning visitors of potential dangers will be sufficient to enable
them to be reasonably safe, and it may discharge the occupier's duty of care. However, if
a warning is not sufficient or effective in preventing harm, the occupier remains liable.
 Independent Contractor: The occupier may engage an independent contractor to carry
out certain work on the premises. If the occupier ensures that the contractor is competent
and has done the work properly, the contractor will be liable for any injuries to visitors
caused by their work. However, if the occupier has notice of the contractor's

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 incompetence or bad work practices, they can also be liable to the contractor's employees
who are injured as a result.
 Contributory Negligence: If an invitee is found to have been careless and contributed to
their own injury, the court may apply the Occupiers' Liability Act to reduce the damages
awarded.
 Exclusion of Liability: The occupier may discharge their duty of care by warning visitors
of potential dangers. If the occupier imposes conditions on entry that exclude or restrict
their duty of care, the effectiveness of these conditions will depend on the laws of
negligence and contract.
 Effect of Contract on Occupier's Liability to Third Parties: If a person contracts with
the occupier for the use of premises and is entitled to permit third persons to use them
(e.g., a restaurant), the duty owed by the occupier to those third persons is the same as
that owed to the other party to the contract. However, the occupier cannot reduce their
obligations to visitors who are strangers to the contract to a level below that imposed by
the common duty of care.
Overall, the nature of the duty of care on the occupier is to exercise reasonable care in all
circumstances, taking into account various factors and potential risks. The occupier's liability
may be affected by the behavior of visitors, warnings provided, the presence of independent
contractors, and contractual arrangements. However, the duty is aimed at ensuring the safety
and protection of visitors lawfully on the premises.

What is strict liability?

Strict liability means liability without proof of any fault on the part of the wrongdoer. Once
the plaintiff is proved to have suffered damage from the defendant's wrongful conduct, the
defendant is liable whether there was fault on his part or not. Strict liability must be
distinguished from absolute liability. Where there is absolute liability, the wrong is actionable
without proof of fault on the part of the wrong- doer and in addition, there is no defense
whatsoever to the action.

Strict liability under Kenya law is the imposition of liability without fault for damages on the
defendant. This is different from negligence as the burden of proof is not placed on the
plaintiff to prove that the damages were a result of the defendant’s negligence, only that
damages occurred and the defendant is responsible.

Where there is strict liability, the wrong is actionable without proof of fault but some
defenses may also be available.

What does the case of Rule in Rylands v Fletcher say?

Rule in Rylands v Fletcher: The rule in this case states that; "The person who, for his own
purposes, brings on his land and collects and keeps there anything likely to do mischief if it
escapes, must keep it at his peril and, is prima facie answerable for all the damage which is
the natural consequence of its escape". The above rule is commonly called the rule in Ryland
vs. Fletcher. In this case Ryland had employed independent contractors to construct a
reservoir on his land adjoining that of Fletcher. Due to the contractor's negligence, old mine
shafts, leading from Ryland’s land to Fletcher's were not blocked. When the reservoir was
filled, the water escaped through the shafts and flooded the plaintiffs mine and caused great
damage. The court held that Ryland was liable and it was immaterial that there was no fault
on their part. For this rule to apply the following conditions must be applied:

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Prerequisites of the operation of the rule in Rylands v Fletcher:

 The defendant made a “non- natural” or “special” use of his land; The defendant must
have used his land in a way, which is not ordinarily natural.
 D must have brought into, kept or accumulated things on his land for personal use
 The things brought must be capable of causing mischief if they escaped The substance in
question in fact escaped; and
 There must be actual escape of the thing from D’s land and not a place outside it.
 Damage was caused to the plaintiff’s property as a result of the escape.

Liability for Fire: The liability for fire due to negligence is actionable in tort. It is also a case
of strict liability. Therefore, if a fire starts without negligence but it spreads due to negligence
of a person, then that person will be liable for damages caused by the spread of the fire.
Liability for Animals: This may arise in cases of negligence. An occupier of land is liable
for damage done by his cattle if they trespass onto the land of his neighbors thus causing
damage. In the same way, a person who keeps dangerous animals like leopards, dogs, lions,
etc. is liable strictly for any injury by such animals. He cannot claim that he was careful in
keeping them. He remains liable even in the absence of negligence.
The significance of the rule in Rule Rylands v Fletcher is that it puts restrictions to the use
of land for any non-natural or illegal purposes , Now the owner also has to take care of his
surroundings and not to bring anything that can cause damage at large.
The advantage of Rylands v fletcher is that helps protect the rights of neighbours and
surroundings but it also puts restrictions on the owner to the use of his land.
Anyone who has suffered damage from the escape of any harmful substance from defendants
property can sue under Rylands v Fletcher.

What are the defences of strict liability?

 Acts of God: where a natural occurrence happens which is totally out of D’s control e.g.
an earthquake or tornado.
 Plaintiffs' Fault: If the escape of the thing is due to the fault of the plaintiff, the defendant
is not liable. This is because the plaintiff has himself brought about his own suffering.
 Plaintiff’s consent or benefit: That the accumulation or bringing of the thing was by
consent of the plaintiff.
 Statutory authority: That the thing was brought into the land by requirement of an Act of
parliament.
 Contributory negligence: if the plaintiff was also to blame for the escape.
 Wrongful act of a third party: the defendant may take the defence of the wrongful acts of
a third party though he may still be held liable in negligence if he failed to foresee and
guard against the consequences to his works of that third party’s act.
For manufacturing defects how does a plaintiff claim strict liability?

Under Kenya laws, for a plaintiff to make a claim based on manufacturing defects in strict ,
the following must be true:

1. The defendant is the manufacturer of the defective product

2. The product contained defects when purchased by the plaintiff
3. The defect existed when the defendant sold the product

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The defect was responsible for injury to the plaintiff.The injury sustained by the plaintiff
must be foreseeable by the manufacturer, within reason. Additionally damages may be
awarded if the plaintiff can prove that the defendant was aware of the defect when the
product was sold to the consumer.

What are the Responsibilities of Sellers and Bailors?

Under Kenya laws, the lending of personal property to another with the agreement to return
the property at a later time is called bailment. The owner is known as the bailor and the
recipient of the property is the bailee. If there are inherent dangers in the use of the property,
the bailor is responsible for warning the bailee of those dangers. Therefore, the bailor is liable
for negligence if appropriate notice is not given to the bailee. Similarly, the seller assumes
responsibility from the manufacturer to warn the consumer about the dangers of the product.

How does Strict Liability Relate to Ultra Hazardous Activity?

The “ultra-hazardous” activity doctrine states that certain activities create a serious risk of
danger and that liability must be placed on persons engaging in this activity regardless of
fault. In this legal definition the plaintiff under Kenya laws must have engaged in an ultra-
hazardous activity which caused the plaintiff to suffer injury, loss or damage and the
defendant should have recognized the likelihood or damage to the plaintiff during the course
of this activity. Some examples of ultra- hazardous activity include demolition and the
handling of dangerous animals.

What is nuisance?
Nuisance refers to the lawful interference with a person's use or enjoyment of land or some
other rights over or in connection with land. It involves the doing of an unjustifiable act that
interferes with the use or enjoyment of another's land or rights associated with the land.
Nuisance is a tort that protects a person's enjoyment of land and the rights vested in the land.

What are the types of nuisance?

There are three main types of nuisance:
a) Public Nuisance: This type of nuisance involves interference with an individual's
enjoyment of a public space, such as the right to fresh air, freedom from noise pollution, use
of public highways, waterways, etc. Public nuisance is considered a criminal offense and can
be actionable by the state on behalf of the public. A private citizen may also bring a civil suit
for public nuisance if they can demonstrate that they suffered special harm beyond what the
general public experienced.
b) Private Nuisance: Private nuisance occurs when there is interference with a private
interest in land. It affects an individual in their individual capacity, and therefore, a personal
action for redress is necessary. Private nuisance can take various forms, such as noise, heat,
smoke, vibrations, overhanging branches, or playing loud music. The defendant may not be
liable for private nuisance if their actions are considered reasonable in the legitimate use of
their property.
c) Statutory Nuisance: Statutory nuisance is an administrative remedy for addressing both
private and public nuisances. It involves interference that can be considered substantial and
unreasonable and may be regulated by specific laws or statutes.

What are the defences in Nuisance ?

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Defences of Nuisance:
Nuisance can be either public or private, each having its specific characteristics. Here are
some of the common defences that can be raised in response to a claim of nuisance:
 Statutory Authority: A defendant may raise the defence of statutory authority when the
alleged nuisance is authorized or permitted by law. If the defendant can show that the
activity causing the nuisance is carried out in accordance with relevant statutes,
regulations, or permits, they may be shielded from liability for the nuisance. However, it
is essential to demonstrate strict compliance with the applicable legal provisions to
successfully claim this defence.
 Triviality: The defence of triviality can be raised when the alleged nuisance is deemed
too minor or insignificant to warrant legal action. If the court determines that the
interference caused by the defendant's actions is minimal and does not substantially affect
the claimant's use and enjoyment of their property, the claim of nuisance may be
dismissed.
 Lawful Use of Land: If the activity or use of land that allegedly causes the nuisance is
lawful, the defendant may argue that they have a right to carry out such activities on their
property. A defendant must demonstrate that their actions are permitted under zoning
laws, planning regulations, or other relevant legal provisions.
 Reasonable Act or Omission: A defendant may claim that their actions or omissions
were reasonable under the circumstances. If the court agrees that a reasonable person in
the defendant's position would have acted similarly, the defence of reasonableness may be
upheld.
 Prescriptive Right: Prescriptive right, also known as the doctrine of prescription, may be
invoked as a defence when the alleged nuisance has been ongoing for a significant period
without the claimant making a complaint or taking legal action. If the defendant can show
that the interference has been continuous and uninterrupted for a legally prescribed period
(often referred to as the prescriptive period), they may acquire a legal right to continue the
activity despite its nuisance-like effects.
It's important to note that the availability and success of these defences can vary depending
on the jurisdiction and the specific circumstances of the case. Nuisance law is complex and
fact-specific, so individuals facing or defending against a nuisance claim should seek legal
advice to understand their rights, obligations, and potential defences.

What are the remedies for the tort of nuisance?

The remedies for the tort of nuisance include:
a) Damages: If a plaintiff can prove that they have suffered loss or damage due to the
nuisance, they may be entitled to claim damages from the defendant. Damages aim to
compensate the plaintiff for the harm caused by the nuisance.
b) Injunction: An injunction is a court order that restrains the defendant from continuing the
tortious acts that cause the nuisance. In cases where an injunction is granted, the defendant
must cease the interfering activity.
c) Abatement: Abatement involves the discontinuation of the nuisance, such as cutting
overhanging branches or roots. It is a remedy that seeks to remove or mitigate the source of
the nuisance.

In the case of private nuisance, damages are not always presumed, and the plaintiff may need
to prove the extent of their loss. Injunctions are generally the primary remedy in private
nuisance cases, but damages may be awarded in lieu of an injunction if specific conditions
are met, as stated in the Shelfer v City of London Electric Lighting Co case. Statutory

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nuisance may also be addressed through specific administrative remedies as provided by
relevant laws or regulations.

What is the difference between donoghue –vs – Stevenson & rylands vs fletcher ?

The cases of Donoghue v. Stevenson and Rylands v. Fletcher are both landmark cases in the
field of tort law, but they deal with different legal principles and concepts. Here's a
breakdown of the key differences between the two cases:
Donoghue v. Stevenson:
 Legal Principle: Donoghue v. Stevenson is a famous case that established the concept of
negligence and the duty of care owed by manufacturers to consumers. It focused on the
liability of manufacturers for harm caused by their products.
 Fact Pattern: In Donoghue v. Stevenson, a woman consumed a bottle of ginger beer that
contained a decomposed snail. She suffered illness and shock as a result. The case
involved the issue of whether the manufacturer owed a duty of care to the consumer and
whether they breached that duty.
 Duty of Care: The court held that the manufacturer owed a duty of care to the ultimate
consumer of the product, even in the absence of a contractual relationship. The case
introduced the "neighbour principle," which established that individuals must take
reasonable care to avoid acts or omissions that could reasonably be foreseen as likely to
cause harm to others who could be affected by those acts or omissions.
Rylands v. Fletcher:
 Legal Principle: Rylands v. Fletcher is a significant case that established the principle of
strict liability for the escape of non-natural substances or things that cause damage to
another party's property. It deals with liability for the escape of dangerous things.
 Fact Pattern: In Rylands v. Fletcher, the defendant owned a mill with an artificial
reservoir on their land. Due to a defect in the reservoir, water flooded the plaintiff's coal
mines, causing significant damage. The case involved the issue of whether the defendant
was liable for the damages caused by the escape of water from their land.
 Strict Liability: The court held that the defendant was strictly liable for the damages
caused by the escape of water from their land, regardless of whether they were negligent
or at fault. The case established that if a person brings or accumulates something on their
land that is not a natural use of the land and it escapes and causes damage to another, they
will be held liable. A person who in the course of an unnatural use of his land
accumulates something that would harm another if it escapes is liable for the damages or
injury caused by the escape of the harmful object.

In summary, Donoghue v. Stevenson focused on negligence and the duty of care owed by
manufacturers to consumers, while Rylands v. Fletcher dealt with strict liability for the
escape of non-natural substances or things causing damage. The former focused on harm
caused by defective products, while the latter concerned harm caused by the escape of
substances or things from one's land.

What is vicarious liability?

Vicarious liability refers to the liability of one person (the principal or employer) for the torts
committed by another person (the agent or employee) while acting within the scope of their
employment or agency. In other words, the principal or employer can be held responsible for

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the wrongful acts or negligence of their agent or employee, even if the principal or employer
did not directly commit the tort themselves.

What must be proved for vicarious liability?

For vicarious liability to apply, the following elements must be proved:

 Lawful relationship: There must be a recognized legal relationship between the principal
and the agent or the employer and the employee. This relationship can exist in the form of
an employment contract or a contract of service.
 Contract of service: There must be a valid contract of service between the principal and
the agent or the employer and the employee. The contract of service establishes the duties
and obligations of the parties involved.
 Control and discretion: The principal or employer must have the right to control and
direct the actions of the agent or employee. This control can extend to matters such as
hiring, firing, determining tasks to be performed, and remuneration.
 Wrongful act within the course of employment: The tortious act must be committed by
the agent or employee in the course of their employment or agency. This means that the
act must be connected to the duties they were employed to perform.
 Liability during the course of employment: The wrongful act must have occurred while
the agent or employee was acting within the scope of their employment or agency. If the
act was committed outside the course of employment, vicarious liability may not apply.

What relationships does vicarious liability apply to?

Vicarious liability typically arises in two main relationships:

 Employer and employee (Master-Servant Relationship): Employers can be vicariously
liable for the torts committed by their employees while acting within the scope of their
employment. This is commonly seen in cases where an employee causes harm to others
during the course of their work duties.
 Employer and independent contractor: Employers are generally not vicariously liable
for the torts committed by independent contractors they hire. However, there are
exceptions where the employer may still be liable, such as when they retain control over
the contractor's actions or when the contracted work is inherently dangerous.

In summary, vicarious liability holds a principal or employer responsible for the torts
committed by their agent or employee while acting within the scope of their employment or
agency. This legal principle helps ensure that those who benefit from the services of others
also accept the corresponding liabilities for their actions.

Distinguish between independent contractor and agent in kenyan tort law

In Kenyan tort law, there is a distinction between an independent contractor and an agent.
Here are the key differences:
Relationship with the Principal:
 Independent Contractor: An independent contractor is generally engaged by a
principal to perform a specific task or provide a service, but they operate as a separate
entity. They are not under the direct control or supervision of the principal, and they
typically have autonomy in how they carry out their work.
 Agent: An agent, on the other hand, acts on behalf of the principal and represents the
principal's interests. The agent is authorized to perform certain acts or make decisions

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 on behalf of the principal, and they are subject to the control and direction of the
principal.
Scope of Authority:
 Independent Contractor: An independent contractor typically has a limited scope of
authority and performs specific tasks or services as agreed upon in the contract. They may
have discretion in how they complete the work but are not authorized to act on behalf of
the principal in legal or contractual matters.
 Agent: An agent has a broader scope of authority and is authorized to act on behalf of the
principal. They have the power to bind the principal in legal and contractual obligations,
such as entering into agreements or making representations, subject to the limits set by
the principal.
Liability:
 Independent Contractor: Generally, an independent contractor is personally liable for
their own acts and omissions. If the independent contractor causes harm or injury to a
third party during the performance of their work, they are typically responsible for any
resulting liability.
 Agent: An agent, acting within the scope of their authority, can bind the principal to legal
obligations. Therefore, the principal may be held liable for the actions or omissions of the
agent performed within the course of their agency. However, the agent may also bear
liability if they act negligently or in breach of their duties as an agent.
It's important to note that the determination of whether a person is an independent contractor
or an agent in a specific situation depends on the facts and circumstances of the case,
including the terms of any agreements or contracts between the parties and the actual nature
of the relationship. The classification has implications for the legal responsibilities and
liabilities of the parties involved in a tort claim under Kenyan law.

What is defamation?

Defamation means the publication of a false statement regarding another person without
lawful justification, which tends to lower his reputation in the estimation of right thinking
members of society or which causes him to be shunned or avoided or has a tendency to injure
him in his office, profession or trade. In Kenya, the law on defamation is derived on both
statutes, Defamation Act and common law.

What are the types of defamation?

The distinction of the two is based on form of expression:

LIBEL SLANDER
Libel is made in some permanent & physical form Slander is taken in the form of spoken words or som
e.g. writing, printing, pictures, effigies etc. other form that is not permanent whether visible o
audible.
When slander is done by the way of wireless
broadcasting then it shall be treated like a publication Slander takes place where the defamatory statement
in permanent form (communication to other parties made in nonpermanent form e.g. by word of mout
because of publication). Radio falls under this. gestures, etc. Slander is actionable only on proof o
damage.
Libel is said to be actionable per se: such that to Slander, requires actual proof of damage of the part o
sustain a suit based on libel you need not demonstrate the plaintiff for example e.g. loss of business, job o

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that you suffered any harm or damage as a result of any other lost opportunity.
the libel.
Libel takes place where the defamatory statement is However, in exceptional cases, a slanderous stateme
made in permanent form e.g. in writing, printing, is actionable without proof of damage. This is so
television broadcasting, etc. Where a defamatory cases where the statement inputs a criminal offenc
matter is dictated to a secretary and she subsequently punished by imprisonment. Where the statement inpu
transcribes it, the act of dictation constitutes a slander a contagious disease on the plaintiff. Where th
while the transcript is a libel. statement inputs unchastely on a woman. Where th
statement imputes incompetence on the plaintiff in h
trade, occupation or profession.

What are the exceptions in which the plaintiff does not have to prove damage?

You have accurately identified the exceptions in which the plaintiff does not have to prove
damage in a slander case. These exceptions make the slander actionable per se, meaning that
harm or damage is presumed by law without the need for the plaintiff to demonstrate actual
loss or injury. Here they are again:

a) Imputation of criminal conduct: If the defendant makes a slanderous statement that

imputes criminal conduct punishable by imprisonment, the slander is actionable per se. The
plaintiff may be at risk of facing prosecution or legal consequences due to the false criminal
allegation.
b) Imputation of certain contagious diseases: Making a slanderous statement that accuses
someone of having a contagious disease, such as a venereal disease, falls under this
exception. It is considered a moral issue, and the plaintiff may suffer adverse consequences
socially or professionally due to the false accusation.
c) Imputation of unchastity against a woman: Under Section 4 of the Defamation Act, if the
defendant imputes unchastity against a woman or girl, it shall not be necessary for the
plaintiff to prove essential damage. This means that the slander is actionable per se in cases
of false accusations related to a woman's moral character or virtue.
d) Imputation of unfitness in business: Section 3 of the Defamation Act provides that if the
imputation relates to the plaintiff's office, profession, calling, trade, or business, the plaintiff
does not have to prove damage. In other words, if the false statement attacks the plaintiff's
competence or suitability in their work, the slander is actionable without the need to
demonstrate actual harm.

In these specific circumstances, the law recognizes the potential harm caused by the
slanderous statement and presumes that damage has occurred without requiring the plaintiff
to provide further evidence of the harm. However, for all other cases of slander, where the
defamatory statement is not covered by these exceptions, the plaintiff must provide evidence
of actual damage or harm to pursue a successful defamation claim.

What are the distinctions between slander and libel?

Libel can be a criminal offence as well as a civil wrong ,while slander amounts to a mere
civil wrong only. Libel is in a permanent form while slander is in a non-permanent form.
Under libel, the wrong is actionable per se (meaning no damage needs to be shown) whereas
in slander the plaintiff must prove actual damage except when it conveys certain imputations.

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What are the elements of defamation?

False Statement: The defendant must have made a false statement about the plaintiff. If the
statement is true, it cannot be considered defamation.

Defamatory Statement: The statement must be defamatory, meaning it exposes the plaintiff
to hatred, contempt, ridicule, or shunning, or it injures the plaintiff's profession, trade, or
reputation among people who know them. The courts determine this based on whether the
words tend to lower the plaintiff in the estimation of right-thinking members of society
generally.

Identification of the Plaintiff: The defamatory statement must refer to the plaintiff, either
explicitly by name or description or implicitly by reasonable inference.It is essential that
right-thinking members of society can understand the statement to refer to the plaintiff.

Publication: The defamatory statement must be published, meaning it must be

communicated to a third party or person other than the plaintiff. Publication can occur
through various means, such as spoken words, broadcasting, written statements in books or
newspapers, graffiti, or any other form that makes the defamatory matter known to others.

It is important to note that defamation laws may vary in different jurisdictions, and the
specific elements required to prove defamation may differ accordingly. In some jurisdictions,
additional elements, such as the requirement of fault on the part of the defendant (negligence
or actual malice), may also be necessary to establish a defamation claim. If you are involved
in a defamation case or need legal advice on defamation, it is essential to consult with a
qualified attorney familiar with the defamation laws in your jurisdiction.

What is the law of defamation?

In Father Samuel Waweru v Samuel Mburu & The Standard the Kenyan high court
adopted a test of defamation that took into account the two tests that were set out in the
Parmitter Case & Sim Case. The court stated" there is no wholly satisfactory definition of a
defamatory imputation and three formulae have been particularly influential:

 Would be imputation tend to lower the plaintiff in the estimation of right thinking
members of society generally.
 Would be importation tend to cause others to shun or avoid the plaintiff.
 Would the words tend to expose the plaintiff to hatred, contempt or ridicule?

What defenses against defamation ?

You have provided an accurate summary of the defenses against defamation based on the
information provided earlier. These defenses offer legal protection to defendants who are
accused of making defamatory statements. To reiterate, the defenses include:
 Truth or Justification: If the defendant can prove that the statement they made is true or
substantially true, it serves as a complete defense to a defamation claim. The burden of
proof lies on the defendant to demonstrate the truth of the statement.

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 Fair Comment on a Matter of Public Interest: This defense allows individuals to
express honest, relevant, and non-malicious opinions about matters of public concern
without facing liability for defamation.
 Privilege: Privilege is divided into two categories:
 Absolute Privilege: Certain communications or statements are absolutely privileged and
not actionable in defamation. Examples include statements made by judges during
judicial proceedings, statements made in Parliament by legislators, and confidential
communications between spouses.
 Qualified Privilege: This defense applies when a person has a moral or legal duty to
communicate a defamatory statement, and the recipient has an interest in receiving the
information. Qualified privilege can cover situations such as self-defense or
communications to individuals in public positions for the public good.
 Apology or Offer of Amends: If the defendant offers to make a suitable correction and
apology for the defamatory statement, this can serve as a defense, especially if the
publication was made without malice and was innocently published.
 Consent: If the plaintiff impliedly consents to the publication of the statement in
question, such consent can be a defense in a defamation case. If the plaintiff has given
permission or authorized the publication, they cannot later claim defamation based on that
same statement.

As you correctly pointed out, defamation laws can vary in different jurisdictions, and the
application of these defenses may differ based on local laws and circumstances. If facing a
defamation claim or seeking to defend against one, consulting with a qualified attorney
familiar with defamation laws in the relevant jurisdiction is crucial for appropriate guidance
and legal representation.

You have provided an accurate summary of the defenses against defamation based on the
information provided earlier. These defenses offer legal protection to defendants who are
accused of making defamatory statements. To reiterate, the defenses include:
 Truth or Justification: If the defendant can prove that the statement they made is true or
substantially true, it serves as a complete defense to a defamation claim. The burden of
proof lies on the defendant to demonstrate the truth of the statement.
 Fair Comment on a Matter of Public Interest: This defense allows individuals to
express honest, relevant, and non-malicious opinions about matters of public concern
without facing liability for defamation.

Privilege: Privilege is divided into two categories:

 a) Absolute Privilege: Certain communications or statements are absolutely privileged
and not actionable in defamation. Examples include statements made by judges during
judicial proceedings, statements made in Parliament by legislators, and confidential
communications between spouses.
 b) Qualified Privilege: This defense applies when a person has a moral or legal duty to
communicate a defamatory statement, and the recipient has an interest in receiving the
information. Qualified privilege can cover situations such as self-defense or
communications to individuals in public positions for the public good.

 Apology or Offer of Amends: If the defendant offers to make a suitable correction and
apology for the defamatory statement, this can serve as a defense, especially if the
publication was made without malice and was innocently published.

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 Consent: If the plaintiff impliedly consents to the publication of the statement in
question, such consent can be a defense in a defamation case. If the plaintiff has given
permission or authorized the publication, they cannot later claim defamation based on that
same statement.

Defamation laws can vary in different jurisdictions, and the application of these defenses may
differ based on local laws and circumstances. If facing a defamation claim or seeking to
defend against one, consulting with a qualified attorney familiar with defamation laws in the
relevant jurisdiction is crucial for appropriate guidance and legal representation.

What are the general defences in tort?

General defenses in tort refer to legal arguments that defendants may use to avoid or limit
liability for their actions that allegedly caused harm to the plaintiff. Here are the general
defenses in tort based on the provided information:
 Consent: The defense of consent is based on the principle of "Volenti non fit injuria,"
which means that no wrong is done to one who consents. If the plaintiff voluntarily agrees
to suffer harm, they cannot claim damages for that harm. Consent can be express or
implied, but it must be given freely and not obtained through fraud or illegal means.
However, certain limitations apply to this defense, such as it cannot legalize an unlawful
act, it is not applicable to cases of negligence, and it does not work against actions based
on breach of statutory duty.
 Defence of Illegality on the Part of Plaintiff: This defense is based on the maxim "Ex
turpi causa non oritur actio," which means no action arises from an immoral cause. If the
plaintiff engaged in illegal or immoral conduct, they may be barred from recovering
damages in tort. The court will not lend aid to a person who bases their claim on an
immoral or illegal act.
 Inevitable Accident: An inevitable accident is an occurrence not avoidable by any
reasonable precaution. If the defendant can prove that the harm caused was due to an
inevitable accident, they may escape liability for negligence. However, the defendant
must demonstrate that they had no control over the event, and it could not have been
prevented by using great skill and care.
 Act of God: The defense of an act of God negates the fault element of negligence by
asserting that the damage was due to an extraordinary natural event beyond human
control. An act of God must be so extraordinary and unforeseeable that a reasonable
person could not have anticipated or prevented it.
 Contributory Negligence: Contributory negligence is a defense that applies when the
plaintiff's actions contributed to their own harm. If the plaintiff is partially at fault for
their injuries, the court may apportion the compensation accordingly, reducing their
recovery based on their degree of fault.
 Novus Actus Interveniens: This defense is raised when a chain of events results from the
tort, but the subsequent loss is not within the scope of those that would naturally occur
from the initial tort. An intervening act may break the chain of causation, limiting the
defendant's liability.
 Remoteness of Damage: The defense of remoteness of damage argues that the damage
suffered by the plaintiff was not a direct result of the tort and is too remote from the
tortious act. The defendant will not be liable for damage that is not reasonably foreseeable
as a consequence of their actions.

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 Self-Defense: Self-defense is a valid defense in tort where a person has a right to defend
their person, property, or family from unlawful harm. The force used in self-defense must
be reasonable and proportionate to the threat faced.
 Plaintiff as a Wrongdoer: The defendant may argue this defense when the plaintiff's
actions were illegal or wrong, which may absolve the defendant from liability.
 Necessity: The defense of necessity applies when intentional damage is done to prevent
greater harm. If a person finds themselves in a position where they must interfere with
another person's rights to prevent harm to themselves or their property, the defense of
necessity may be upheld.
 Mistake: Mistake may be a defense in certain circumstances, such as malicious
prosecution, false imprisonment, and deceit. However, in most cases, mistake is not a
defense in tort.
 Act in Respect to Statutory Authority: If the defendant's actions were authorized by a
statute, the injured person may be remediless unless the legislature provides
compensation. However, the powers granted by the statute must be exercised with
judgment and caution to avoid unnecessary damage.

What are the types of remedies in tort?

These remedies can be categorized into two main heads: judicial remedies and extra-judicial
remedies (self-help remedies).
Judicial Remedies:
a. Damages: Damages are the primary and most common remedy in tort law. They represent
monetary compensation awarded to the injured party to compensate for the harm suffered as a
result of the tortious act. Damages can be classified into different types:
 Pecuniary Damages: These are the actual monetary losses incurred by the plaintiff,
such as medical expenses and loss of earnings due to hospitalization.
 Non-Pecuniary Damages: These are damages awarded for pain and suffering, loss of
amenity, and loss of future earnings.
 Nominal Damages: Awarded when the plaintiff proves the tort but has suffered no
significant loss.
 Contemptuous Damages: A derisory sum awarded when the court deems the
plaintiff's claim to be without merit.
 General Damages: Presumed damages that flow from actionable per se torts and do
not require specific pleading.
 Special Damages: Damages that must be specifically pleaded and proved as part of
the cause of action in certain torts where damage is the essence of the claim.
b. Injunction: Injunctions are orders issued by the court commanding or prohibiting a party
from doing a certain act. In the context of tort law, injunctions may be granted in cases of
continuing torts or to prevent harm or threats of harm. There are two main types of
injunctions:
 Prohibitory Injunction: Orders a person to refrain from doing a certain act.
 Mandatory Injunction: Orders a person to perform a specific action to restore things to
their former state.
c. Specific Restitution of Property: This remedy entitles a person who has been wrongfully
dispossessed of immovable or specific movable property to recover the property in question.

Extra-Judicial Remedies (Self-Help Remedies):

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These remedies are found outside the court and allow individuals to take certain actions to
protect their rights or property without resorting to a formal lawsuit. Some of the common
extra-judicial remedies include:
a. Expulsion of a Trespasser: An occupier of land may use reasonable force to prevent a
trespasser from entering their land or to eject the trespasser after they have entered.
b. Re-Entry of Land: A person wrongfully dispossessed of land may retake possession if
they can do so peacefully and without resorting to force.
c. Reception of Goods: A person entitled to immediate possession of chattels may recover
them from anyone in actual possession if such possession was wrongful.
d. Abatement of Nuisance: An individual may take reasonable action to abate a nuisance,
such as cutting overhanging branches or breaking down a fence that obstructs their right of
way.
e. Distress Damage Feasant: An occupier of land may lawfully seize chattels unlawfully on
their land causing damage and detain them until compensation for the damage is paid

What is a deed pole?

 A deed poll is provided for under the Registration of Documents Act, and the same is
specifically provided for under the Registration of Documents (Change of Name)
Regulations.
 The document ought to be signed by the person in both the old and the new name, and it
shall be witnessed by one witness. In the case of a minor below (16 years), shall be signed
by a parent or a legal guardian, and one witness.
 In the case of a minor above 16 years, signed by a guardian, the consent shall be endorsed
on the document and witnessed by an advocate.
 Rule 4 of the Regulations provides that the deed poll shall be accompanied by a birth
certificate, statutory declaration.

CRIMINAL LAW

What is criminal law?

Criminal law is a system of laws that defines and regulates conduct that is considered harmful
to society. It deals with establishing the wrongs done to an individual and how these wrongs
affect society as a whole. Criminal law prohibits certain conduct, and the violation of these
laws is prosecuted by the state in judicial proceedings. The primary purpose of criminal law
is to punish individuals who commit crimes and to maintain order and safety within society.

What is the purpose of criminal law?

The purpose of criminal law is multifaceted and includes the following objectives:

 Punishment: Criminal law aims to punish individuals who commit crimes, providing a
form of retribution for their actions.
 Rehabilitation: Criminal law seeks to rehabilitate offenders by offering them
opportunities for reform and reintegration into society during their incarceration or
through alternative sentencing programs.
 Deterrence: Criminal law acts as a deterrent by imposing penalties for criminal
conduct, discouraging potential offenders from committing crimes out of fear of
punishment.

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  Protection: Criminal law aims to protect society from dangerous individuals by
removing them from the community through imprisonment or other forms of
incapacitation.
 Restoration: In some cases, criminal law may require offenders to restore or
compensate their victims for the harm done, promoting a sense of justice and
accountability.
 Maintenance of Morals: Criminal law addresses offenses against morality to maintain
a sense of ethical standards within society.
 Protection of Property and Life: Criminal law includes offenses that protect individual
rights to property and life.
 Preventing Destabilization: Criminal law addresses acts that threaten the stability and
peace of the country.
 Ensuring Rights: Criminal law ensures that citizens enjoy their rights as guaranteed by
the state, as outlined in the constitution or international law.

What are the principles underlying criminal law?

The principles underpinning criminal law include:

 The Principle of Legality: Crimes must be clearly defined in the law before an
individual can be convicted. The law must be precise, specific, and not retrospective.
 The Correspondence Principle: The elements of a crime should correspond to each
other, meaning a person should be held responsible for what they have done.
 The Labelling Principle: The label applied to an offender (the charge) should accurately
represent the criminal act committed.
 Morality and Criminal Law: While modern criminal law may not be directly based on
strict moral beliefs, moral values can influence the creation and enforcement of criminal
laws to some extent.

What are the sources of criminal law?

The sources of criminal law include:
 The Constitution: The constitution is the supreme law of the land and provides the
framework for criminal law. It outlines fundamental rights, fair trial principles, and
limitations on criminal prosecutions.
 Legislation: Criminal offenses are primarily defined by statutes enacted by the
legislature, such as the Criminal Procedure Code, Penal Code, and other relevant laws.
 Common Law: Although common law offenses are generally excluded in Kenya, some
definitions in statutes are influenced by common law principles.
 Customary Law: In some cases, customary practices and traditions may influence or
coexist with formal criminal law.
 International Law and Treaties: International law principles and treaties ratified by
Kenya may become part of the country's criminal law.

What are the elements of a crime?

The elements of a crime typically include:

 Actus Reus: The physical act or conduct that constitutes the offense.
 Mens Rea: The mental state or intent of the perpetrator to commit the crime. It refers to a
guilty mind, knowledge, recklessness, or intention to commit the criminal act.
 Concurrence: The requirement that the actus reus and mens rea must occur
simultaneously for a crime to be committed.

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 Causation: The link between the defendant's conduct and the resulting harm or
consequences.
 Harm: The actual damage or injury caused by the criminal act.
 Legality: As per the Principle of Legality, the conduct must be prohibited by law for it to
constitute a crime.
 Capacity: The accused must have the capacity to understand the nature and wrongfulness
of their actions.
 These elements must be present for a person to be held criminally liable for a specific
offense.

What is actus reus?

Actus Reus refers to the "guilty act" or the physical element of a crime. It encompasses all the
external components of an offense, including actions, omissions, or events caused or
influenced by the accused. To establish criminal liability, it must be proven beyond a
reasonable doubt that the accused committed the actus reus in combination with the mens rea
(guilty mind). The actus reus can take various forms, including commission, omission, or
possession.
 Commission: The actus reus involves actively performing an act that is prohibited by
law and considered harmful to society. Examples include actions like killing, raping,
beating, or burning a building. It can also involve allowing or permitting something
prohibited to be done, leading to criminal liability.
 Omission: In some cases, an individual may be criminally liable for an omission,
which is a failure to act or take necessary steps to prevent harm or fulfill a legal duty
or obligation. Generally, there is no criminal liability for an omission unless the
prosecution can establish that the accused had a legal duty to act in the given
circumstances.
 Possession: Some criminal offenses are based on possession, where an individual is
involved in an event or circumstance by possessing something that is prohibited or
being in a specific state or place. Possession can be actual or constructive, and in
some cases, multiple individuals with knowledge and consent may be deemed to
possess the item.
 Causation: Causation refers to determining whether the defendant's act or omission
caused the harm or damage for which they are being charged. It involves establishing
a causal link between the defendant's conduct and the resulting consequence.
 Voluntariness: An essential element of actus reus is voluntariness. A person cannot
be criminally liable for an act or omission if it was involuntary or beyond their
control. Situations like automatism, reflex actions, or physical force by another can
lead to the defense of involuntariness.

What is causation in criminal law

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’

R v White [1910] 2 KB 124 - The defendant put some poison in his mother's milk with the
intention of killing her. The mother took a few sips and went to sleep and never woke up.

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Medical reports revealed that she died from a heart attack and not the poison. The defendant
was not liable for her murder as his act of poisoning the milk was not the cause of death. He
was liable for attempt. This case established the 'but for' test. Ie would the result have
occurred but for the actions of the defendant? If the answer is yes the defendant is not liable.

Explain the ‘Skull Principle’ in criminal law

 The "Thin Skull Principle," also known as the "Eggshell Skull Rule" or "Eggshell
Plaintiff Rule," is a legal doctrine in criminal law that deals with the consequences of a
victim's pre-existing physical or mental condition on the liability of the wrongdoer.
 According to this principle, a wrongdoer is held responsible for the full extent of the harm
caused to the victim, even if the victim had a pre-existing condition that made them more
susceptible to injury or the harm inflicted on them is more severe than it would be to an
average person. In other words, the wrongdoer must "take the victim as they find them,"
regardless of any pre-existing vulnerabilities.
 An illustrative example of the Thin Skull Principle can be found in the case of R v Blaue
(1975). In this case, the defendant had stabbed the victim, who was a Jehovah's Witness
and refused a blood transfusion due to her religious beliefs. Despite the fact that the
victim's refusal of medical treatment made her more vulnerable to the consequences of
the stabbing, the defendant was still held liable for her injuries. The court ruled that the
defendant could not use the victim's refusal of treatment as a defense, and he was
responsible for the full extent of the harm he caused, even if an average person might not
have suffered the same consequences.
 The Thin Skull Principle is based on the idea that a wrongdoer should not be allowed to
escape liability by arguing that the victim's pre-existing condition or characteristics made
them more susceptible to harm. It ensures that victims are not penalized for their
vulnerabilities and that wrongdoers are held accountable for the harm they cause,
regardless of the victim's individual circumstances.

What is mens rea?

Mens Rea: Mens Rea, often referred to as the "guilty mind," pertains to the mental state or
intention of the accused at the time of committing the actus reus. It involves proving that the
accused had a blameworthy state of mind or culpable mental state necessary for criminal
liability. Different forms of mens rea include intention, recklessness, negligence, and
knowledge.
 Intention: Intention means that the accused deliberately intended to cause a particular
consequence or result through their actions. It involves consciously shaping conduct
to bring about a specific event. Intent can be either direct (purpose intent) or oblique
(foresight intent).
 Recklessness: Recklessness involves the conscious taking of an unjustifiable risk,
where the accused foresees the possible consequences but goes ahead with their
actions without desiring the outcomes. Recklessness is more than mere negligence.
 Negligence: Negligence refers to the failure to meet the standard of conduct expected
of a reasonable person. It is an objective standard that ignores the accused's state of
mind and focuses on whether the person's actions fell below what a reasonable person
would have done in the given circumstances.
 Knowledge: Knowledge means that the accused knew or should have known about
certain circumstances or consequences related to their actions. It can be an essential
element for offenses like possession or aiding and abetting.

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It is essential to establish both actus reus and mens rea to establish criminal liability for an
offense. In some cases, strict liability offenses may exist, where mens rea is not required, and
liability is based solely on committing the prohibited act. However, strict liability offenses
are typically limited to specific statutory cases.

What are the two main types of presumptions of law?

The two main types of presumptions of law are irrebuttable (conclusive) presumptions and
rebuttable presumptions.

Define irrebuttable presumptions of law and provide an example.

Irrebuttable presumptions of law are presumed facts that, once established, cannot be
contradicted by evidence to the contrary. An example is the presumption that a male person
under the age of twelve years is incapable of having carnal knowledge, as stated in Section
14(1)(3) of the Penal Code.

Explain rebuttable presumptions of law and give an illustration.

Rebuttable presumptions of law are presumptions that can be challenged and contradicted by
evidence. These presumptions may be displaced if evidence to the contrary is presented. An
example is the presumption that a child under twelve years is not criminally liable unless it
can be proven that the child had the capacity to know that the act was wrong, as stated in
Section 14(2) of the Penal Code.

What is the significance of the presumption of innocence in criminal law?

The presumption of innocence is a fundamental principle in criminal law. It means that an

accused person is considered innocent until proven guilty beyond a reasonable doubt. This
presumption places the burden of proof on the prosecution to establish the accused's guilt,
and it can be challenged by evidence presented by the defense.

Give an example of a statutory presumption of fact.

A statutory presumption of fact is created by law and may be related to specific offenses or
circumstances. An example is Section 58 of the Anti-Corruption and Economic Crimes Act,
which presumes that if an accused has committed a certain act, it is presumed to be corrupt,
unless evidence to the contrary is provided.

What is the presumption that arises from recent possession of stolen property, and how
can it be rebutted?

The presumption that arises from recent possession of stolen property is that the possessor
was either the thief or received the stolen property. This presumption can be rebutted by the
accused providing an explanation for their possession of the property.

Explain the presumption that can arise in murder cases based on the last seen doctrine.

The presumption that can arise in murder cases based on the last seen doctrine is that if there
is evidence that the accused was last seen with the deceased before their death, the accused is

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expected to explain the circumstances of their parting and the state of the deceased. This
presumption is rebuttable and can be challenged by providing an alternative explanation.

What is the significance of the failure to call a crucial witness, and what presumption
can arise from it?

The failure to call a crucial witness may lead to a presumption that the witness's evidence
would have been unfavorable to the party who failed to call them. This presumption allows
the court to draw an adverse inference against the party who did not call the witness.

How can inferences be made regarding mens rea elements in criminal cases?

Inferences regarding mens rea elements (intent, knowledge, foresight) in criminal cases can
be made from the accused's conduct. The court may presume mens rea based on the actions
and behavior of the accused. However, such presumptions can be challenged by providing
evidence that the accused had an alternative reasoning for their actions.

What are the different sections of the Evidence Act that deal with burdens and
standards of proof?

The sections of the Evidence Act that deal with burdens and standards of proof are Section
107, Section 109, and Section 110.

Explain the burden of proof on the State in criminal cases and the standard of proof
required.

In criminal cases, the burden of proof lies on the State or prosecution. The standard of proof
required is "beyond reasonable doubt," which means the State must prove the accused's guilt
to the extent that there is no reasonable doubt in the court's mind. If doubt is raised, it should
be resolved in favor of the accused.

What is the general rule regarding the burden of proof on the accused in criminal
cases?

The general rule in criminal cases is that the burden of proof always rests on the prosecution
and never on the accused to disprove the charge brought against them. The law does not
require the accused to prove their innocence.

Under what circumstances does the burden of proof shift to the accused in criminal
cases?

The burden of proof may shift to the accused in certain exceptional cases:
 When the accused raises the defense of insanity, they have the burden to prove their
insanity at the time of the offense on a balance of probability.
 When a statute expressly places a burden upon the accused to prove a certain fact.
 When certain facts are peculiarly within the knowledge of the accused, especially in
regulatory legislation.
 In murder cases, if the accused was the last person seen with the deceased, they incur
the burden of explaining the circumstances of their parting with the deceased.

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What is the principle of legality in criminal law?

The principle of legality states that no person shall be made to suffer for an act that was not
prohibited as an offense in the law at the time it was committed. It requires that criminal laws
be clear, precise, and not applied retroactively.

What are some defenses available in criminal cases?

Some defenses available in criminal cases include autrefois acquit (previously acquitted),
autrefois convict (previously convicted), the principle of double jeopardy (prohibition against
being prosecuted twice for the same crime and facts), superior orders, diplomatic immunity,
and judicial immunity.

Can corporations be held criminally liable in Kenya?

Yes, corporations can be held criminally liable in Kenya. A corporation has the same criminal
responsibility as a natural person. Common law relies on the culpability of individual
directors or managers in fixing liability on the corporation. The acts and state of mind of a
corporation's servants may be treated as that of the corporation itself.

Under what circumstances can the veil of incorporation be lifted in criminal cases?

The veil of incorporation can be lifted in criminal cases if someone is found to be engaging in
fraudulent behavior for the purpose of the company. In such cases, the company can be held
criminally liable, and the directors can also be held criminally liable for their behavior.

What are principal offenders in the context of criminal law, and what roles do they play
in the commission of an offense?

Principal offenders are the primary participants in the commission of an offense. They can
include the person who actually commits the prohibited act, anyone who aids or abets another
in committing the offense, or individuals who counsel or procure someone to commit the
offense. They are all liable to the same punishment and are charged jointly with the persons
who actually carry out the prohibited deed.

Explain the concept of accomplices and consortees in criminal law. A2:

Accomplices and consortees are individuals who are involved in the commission of an
offense either as principals or as those who aided, abetted, or counseled the principal
offender. Criminal association is punishable, and these individuals may be charged jointly
with the actual perpetrators. A person is considered an accomplice if they participate in the
offense, but they do not necessarily bring about the actus reus (prohibited act) of the offense.

What are aiders and abetters, and how do they contribute to the commission of an
offense?

Aiders and abetters are individuals who provide assistance to the perpetrators before or
during the commission of an offense. They may help with planning or provide material
support for the execution of the offense. Aider refers to giving help, support, or

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encouragement, while abet means to incite, instigate, or encourage. These individuals are
accomplices to the crime and can be charged with actually committing the offense.

How does the concept of common intention and joint offenders apply to criminal law?

Common intention and joint offenders refer to situations where two or more people form a
common intention to commit a crime together, and the offense is actually committed, whether
by one or more of them. In such cases, the law treats all those involved as joint offenders, and
each one is deemed to have committed the offense. The existence of common intention can
be inferred from the circumstances, and all parties involved are held jointly liable for the
consequences of the offense.

What is the role of counsellors, procurers, instigators, and inciters in criminal law?

Counsellors offer advice or encouragement in the commission of an offense, while procurers

secure the commission of an offense by obtaining a person for the purpose of committing it.
Instigators or inciters, on the other hand, refer to individuals who verbally or actively provoke
others to commit the offense. These individuals may be charged as principal offenders if the
offense is actually committed based on their counsel, procurement, or instigation.

What is the distinction between an accessory after the fact and an accomplice in
criminal law?

An accomplice is a person who is concerned with another in the commission of a crime. They
may participate in the offense directly or indirectly, but they do not necessarily bring about
the actus reus of the offense. An accessory after the fact, on the other hand, is someone who
assists the principal offender to evade justice. They provide assistance or shelter to the
offender after the offense has been committed.

How does the Penal Code treat the liability of principal offenders and accomplices in
criminal cases?

The Penal Code treats all principal offenders equally, regardless of their specific role in the
commission of the offense. It does not distinguish between principals in the first, second, or
third degree as is the case in other jurisdictions. Additionally, the Code does not distinguish
between principal and secondary offenders as per the common law, but rather, all participants
in the commission of an offense are treated in identical terms of punishment.

What is vicarious liability in criminal law, and when does it apply?

Vicarious liability is a legal principle where a person can be held criminally liable for the
actions committed by another person, especially when the other person is their agent.
However, in criminal law, vicarious liability does not apply unless a statute expressly
provides for it. An example of vicarious liability is when the registered owner of a vehicle
can be held liable for permitting someone else to drive it without insurance or with an
unregistered vehicle.

How does the principle of vicarious liability differ from personal liability in criminal
law?

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In criminal law, offenses are generally considered personal in nature, meaning a person
cannot be charged for the offense committed by another person. However, under vicarious
liability, a person, such as a principal or employer, can be held criminally liable for the
actions of their agents or employees, even if they did not directly commit the offense
themselves.

Explain the concept of inchoate offenses in criminal law.

Inchoate offenses are acts that indicate an inclination to commit a crime, even though the
actual crime is not completed. These offenses include attempts (where the accused tries but
fails to commit a crime), conspiracies (where the accused plans with others to commit a
crime), and solicitations (where the accused encourages or induces another person to commit
a crime). The law deals with inchoate offenses to prevent crimes before they are fully carried
out.

What are the key elements of an attempt offense in criminal law?

For an attempt offense to be established, three key elements must be present:

1. Specific intent (mens rea) to commit the completed offense.
2. Overt acts towards committing the offense (actus reus). These acts must go beyond
mere preparation and be immediate and closely connected to the intended offense.
3. The failure to consummate the offense, meaning the attempt was unsuccessful.

How is conspiracy defined and proved in criminal law?

Conspiracy is an inchoate offense where the accused person plans with others to commit a
crime. To prove conspiracy, there must be evidence of an agreement between the parties or
accused persons to engage in criminal conduct. The agreement can be shown in two types:
chain conspiracy, where a sequence of individuals is involved, and wheel conspiracy, where
some participants have minimal contact with the main actors but are still part of the
conspiracy.

What are solicitation offenses, and what elements are necessary to establish such
offenses in criminal law?

Solicitation offenses involve one party encouraging or inducing another person to commit a
crime. The key elements required to establish a solicitation offense are:
1. The use of words containing inducement to commit the crime (actus reus).
2. The specific intent (mens rea) to persuade someone else to commit the offense.

How is manslaughter defined in criminal law?

Manslaughter is defined as the unlawful killing of another person without malice

aforethought. It involves causing the death of another person through an unlawful act or
omission. Manslaughter can be categorized into voluntary manslaughter and involuntary
manslaughter based on the circumstances surrounding the offense.

What are the principal elements of manslaughter?

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 The principal elements of manslaughter include:
(a) Causing the death of another person
(b) By an unlawful act or omission

What is the difference between voluntary manslaughter and involuntary

manslaughter?

Voluntary manslaughter occurs when all the elements of murder, including actus reus and
mens rea, are present, but the offense is committed under mitigating circumstances. These
mitigating circumstances include defenses like infanticide, provocation, diminished
responsibility, and suicide pact.
In contrast, involuntary manslaughter lacks malice aforethought, meaning there is an actus
reus (guilty act) but the mens rea (guilty mind) is insufficient for murder. Involuntary
manslaughter can result from reckless or negligent conduct that inadvertently causes another
person's death.

What are some of the defenses that can mitigate murder to voluntary manslaughter?

Some of the defenses that can mitigate murder to voluntary manslaughter include:
a. Defense of infanticide
b. Defense of provocation
c. Defense of diminished responsibility
d. Defense of suicide pact

How is actus reus established in cases of manslaughter?

The actus reus for manslaughter requires an unlawful act or omission that causes the death of
another person. The act must be dangerous and likely to cause injury to another. The
accused's actions must be the cause of death, and there must be proof of death resulting from
the defendant's conduct.

What is the mens rea required for manslaughter?

The mens rea for manslaughter falls short of malice aforethought, which is required for
murder. For voluntary manslaughter, the accused must have the intention to commit a
dangerous act, but the offense is committed under mitigating circumstances. In cases of
reckless or negligent conduct leading to involuntary manslaughter, the mens rea involves
either recklessness or negligence in the awareness of the risk of causing harm.

What are suicide pacts, and how are they treated in manslaughter cases?

A suicide pact is an agreement between individuals that they will all die at the hands of one
member, who will also die as part of the agreement. When someone kills another person as
part of a suicide pact, they commit manslaughter. The mens rea required for this offense is
the settled intention to die in that manner.

What is the maximum penalty for manslaughter, and how is the severity of the offense
determined?

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The maximum penalty for manslaughter is life imprisonment, as prescribed in Section 202 of
the Penal Code. However, the court has discretion in sentencing and is not bound to impose
the maximum penalty. The severity of the offense is determined based on the circumstances
surrounding the case, including the nature of the offense, the accused's personal
circumstances, and any mitigating factors. The court may consider factors like whether the
accused is a first-time offender and the time spent in prison awaiting trial.

What is the burden of proof in manslaughter cases?

The burden of establishing manslaughter lies with the state. The accused is not required to
prove their innocence; it is the prosecution's responsibility to provide evidence to support the
charges of manslaughter.

How is murder defined in the Penal Code, and what is the mandatory penalty for it?

Murder is defined as causing the death of another person with malice aforethought through an
unlawful act or omission, according to Section 203 of the Penal Code. The mandatory penalty
for murder is death. However, certain partial defenses can lead to the charge being reduced to
manslaughter.

What are the principal elements of murder?

The principal elements of murder include:

(a) The causing of death of another person
(b) By an unlawful act or omission (
c) With malice aforethought
(d) The death occurs within a year and a day after the act or omission.

How is the Actus Reus of murder established, and why is proof of death important?

The Actus Reus of murder involves the unlawful killing of a human being, which can occur
through an act, omission, or result. Proof of death is crucial to establish that the alleged act or
omission caused the death of the victim. Medical evidence or post-mortem reports are
typically used to prove death. If the body cannot be found, circumstantial evidence may be
used to establish death.

Explain the concept of causation in murder cases.

In murder cases, the death must not be caused by the immediate act of the accused. Section
213 of the Penal Code states that causing death includes acts that are not the immediate or
sole causes of death. This means that the accused can still be held responsible for another
person's death even if their act is not the immediate or sole cause. Various scenarios, such as
the accused inflicting injury leading to a surgery that causes death or a victim failing to
receive proper medical attention, can establish causation.

What is Malice Aforethought, and how is it connected to the Mens Rea of murder?

Malice aforethought refers to the predetermined intention to kill. It is an essential element of

murder. The Mens Rea of murder involves various forms of intention to cause death or
grievous harm to another person. Malice aforethought can be established by evidence

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showing the conscious intent to cause death or grievous bodily harm before committing the
crime. It can also be inferred from the knowledge that the act or omission will likely cause
death.

What are some of the forms of Mens Rea that indicate Malice Aforethought?

Some forms of Mens Rea that indicate Malice Aforethought include:

(a) Intention to cause the death of another person, whether that person is the one actually
killed or not. (b) Intention to cause grievous harm to another person, resulting in dangerous
harm, serious injury, permanent disfigurement, or injury to organs.
(c) Intent to commit a felony, which amounts to constructive malice.

What is the punishment for murder, and who bears the burden of proof in murder
cases?

The punishment for murder is mandatory death, as per Section 204 of the Penal Code. The
burden of proof rests on the prosecution to prove the elements of murder beyond a reasonable
doubt.

Can you explain the jurisdiction over murder cases?

Murder cases are triable in the High Court. Subordinate courts do not have jurisdiction over
murder cases because of the complexity and technical nature of the offense, as well as the
severity of the penalty.

Are there any offenses connected to murder, and if so, what are they?

Yes, there are offenses connected to murder, such as:

 Infanticide: Mothers killing their infants under twelve months, which may be treated as
manslaughter under specific circumstances.
 Threats to Kill: Uttering threats to kill someone without lawful excuse, punishable with
imprisonment up to ten years.
 Suicide: The law does not punish suicide but focuses on attempted murder.
 Attempted Suicide: A misdemeanors offense with a penalty of up to two years
imprisonment or a fine or both.
 Aiding Attempted Suicide: A maximum penalty of life imprisonment for aiding
someone in attempting suicide.
 Concealing Birth: A misdemeanor offense targeting the disposal of unwanted newborn
children in secret.
 Abortion: An offense lying between abortion and homicide, involving preventing a child
from being born alive through an act or omission.

How is attempted murder defined in the Penal Code, and what is the penalty for it?

Attempted murder is defined under Section 220 of the Penal Code as any person who
attempts unlawfully to cause the death of another or, with the intent unlawfully to cause the
death of another, does any act or omits to do any act which it is his duty to do, and such act or
omission endangers human life. The penalty for attempted murder is life imprisonment, as
per Sections 220 and 221 of the penal code.

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What are the Actus Reus elements of attempted murder?

The Actus Reus of attempted murder consists of an act or omission that endangers the life of
another. However, if the actions are interrupted when they still amounted to preparations
only, it will not constitute attempted murder. In such cases, the accused can be prosecuted for
other offenses.

What are the Mens Rea elements of attempted murder?

The Mens Rea elements of attempted murder include the intention to kill the victim. The
court should only convict a suspect of attempted murder when there is positive proof of an
intention to kill. Merely intending to cause grievous harm is not sufficient to establish
attempted murder.

What options does the court have if the Mens Rea for attempted murder is not
established, but a different offense is proved?

If the Mens Rea for attempted murder is not established, but a different offense is proved, the
court may convict the accused of the alternative offense based on the evidence. This option is
provided under Section 179 of the Criminal Procedure Code.

How is "Grievous Harm" defined in the Penal Code, and what are the penalties for it?

"Grievous Harm" is an assault causing serious injury or harm to another, endangering life and
health. It is defined in Section 234 of the Penal Code and is a felony punishable by a
maximum penalty of life imprisonment. "Grievous harm" refers to really serious injuries that
are permanent or close to permanent.

What is the duty of the court in determining whether an injury amounts to "Grievous
Harm"?

The court has the duty to determine whether an injury amounts to "Grievous Harm" as
defined in the Penal Code. It is not for a medical officer of health to decide; instead, the court
examines the evidence before it to establish whether the injury is a really serious injury that
endangers life or seriously or permanently injures the health of the person injured.

Can an injury be considered "Grievous Harm" if it is caused indirectly by the accused?

Yes, an injury can be considered "Grievous Harm" even if it is caused indirectly by the
accused. It suffices that the accused creates the situation which leads to the serious injury.
The accused can still be held responsible for the harm caused indirectly.

What is the difference between assault and battery?

Assault, provided for in Sections 250 to 253 of the Penal Code, involves intentionally
creating a reasonable belief in the mind of another person that force is about to be used
against them. Battery, which is not expressly provided for in the Penal Code, involves the
application of some force on the complainant, typically associated with physical striking. The

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key distinction is that assault does not require physical contact, whereas battery involves
some form of physical contact with the complainant.

Is provocation a defense for assault and battery?

No, provocation is not a defense for assault and battery. While it may be considered in some
other offenses, it is not a valid defense for assault and battery charges.

What is theft, and how is it defined in the Penal Code?

Theft, also known as stealing, is defined in Section 268 of the Penal Code. It occurs when a
person fraudulently and without claim of right takes anything capable of being stolen or
fraudulently converts it for the use of any person other than the general or special owner.

What are the Actus Reus elements of theft?

The Actus Reus elements of theft include:

1. The existence of property capable of being stolen, which must have value.
2. The property was taken, involving unlawful removal without consent of the possessor.
Obtaining consent through trickery, intimidation, or mistake does not count as
consent.
3. The accused has possession of the stolen property.

What is the Mens Rea element of theft?

The Mens Rea element of theft is the intention to steal (animo furandi). It involves a
fraudulent intention to permanently deprive the general or special owner of the thing taken.
The intention to temporarily deprive the owner of the thing is insufficient for theft.

What is the difference between a general owner and a special owner in the context of
theft?

The ownership for the purpose of theft is not limited to the legal owner. A general owner
refers to the person to whom the thing belongs, and a special owner, as defined in Section
268(2) of the Penal Code, is any person who has any charge on the thing in question or who
has rights arising from or dependent on holding or possessing the thing.

What constitutes arson under the Penal Code, and what is the penalty for it?

Arson, defined in Section 332 of the Penal Code, occurs when a person willfully sets fire to a
building or structure, any vessel, a stack of cultivated vegetable produce or fuel, or a mine or
its workings. The penalty for arson is life imprisonment.

What are the Actus Reus and Mens Rea elements of arson?

The Actus Reus of arson is the willful setting on fire of the objects listed in Section 332. The
thing must be actually burnt or charred, not just scorched, to constitute arson. The Mens Rea
required for arson is willfulness, meaning the act must be intentional or reckless, and it must
be an unlawful act.

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What is the offence of malicious damage, and what is the penalty for it?

Malicious damage is an offence where a person willfully and unlawfully destroys or damages
any property. The penalty for malicious damage is a maximum of five years imprisonment.

What are the Actus Reus and Mens Rea elements of malicious damage?

The Actus Reus of malicious damage is the willful and unlawful destruction or damage of
property. The property must have depreciated in value, even slightly. The Mens Rea required
for malicious damage is willfulness, which means acting intentionally or recklessly.

What is the defense available for malicious damage?

The defense available for malicious damage is honest claim of right. If the accused can prove
an honest belief that they had a right to damage or destroy the property, it may be a valid
defense.

What is the difference between theft and robbery?

Theft is defined in Section 268 of the Penal Code as fraudulently taking anything capable of
being stolen without claim of right. On the other hand, robbery is defined in Section 295 of
the Penal Code as stealing something and, at or immediately before or after the time of
stealing it, using or threatening to use actual violence to any person or property in order to
obtain or retain the stolen thing.

What is the Actus Reus of robbery, and why is the element of violence crucial?

The Actus Reus of robbery is the act of taking property from the owner using violence or the
threat of violence. The element of violence is crucial because it differentiates robbery from
simple theft. Without the use or threat of violence, the offense would not be considered
robbery.

What is the Mens Rea required for robbery?

The Mens Rea required for robbery is the same as that for theft, which includes dishonesty
and the intent to permanently deprive the owner of the stolen property. Additionally, the
offender must have the intent to use violence to obtain or retain the stolen thing or to prevent
or overcome resistance.

How is robbery with violence different from simple robbery?

Robbery with violence, also known as aggravated robbery, involves committing the act of
robbery while meeting specific criteria. It includes being armed with a dangerous or offensive
weapon, being in the company of one or more persons, or using personal violence during or
immediately before or after the robbery. In contrast, simple robbery involves theft and the use
or threat of violence without necessarily meeting the criteria for robbery with violence.

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What is the principle of "recent possession of stolen property," and how does it apply in
theft-related offences?

The principle of "recent possession of stolen property" is a doctrine of presumption under

Section 119 of the Evidence Act. If a person is found in possession of property very soon
after it was stolen, and there is no reasonable explanation for the possession, a presumption
arises that the person may be either the thief or the receiver of stolen property.

What is the burden of proof for the doctrine of "recent possession"?

The burden of proof lies with the prosecution to establish that the accused was in recent
possession of stolen property and had knowledge or reason to believe that it was stolen. The
accused, on the other hand, has the burden to provide an innocent explanation for the
possession and to prove that their possession is lawful.

What are some defenses available for robbery and related offences?

Some defenses available for robbery and related offences include:

 Honest claim of right: The accused can assert that they honestly believed they had a
lawful claim right to the property.
 Innocent possession: The accused can provide a reasonable explanation for their
possession of recently stolen property to show they were not involved in the theft.
 Challenging the violent intent: The accused may argue that they did not have the
intent to use violence during the commission of the theft.

What is the definition of rape under the Sexual Offences Act, and what are its principal
elements?

Rape, as defined in section 3 of the Sexual Offences Act, is having sexual intercourse with a
person without their consent. The principal elements of rape are penetration of the victim's
sexual organs with the male or female organs of the aggressor and the lack of consent from
the victim.

How does the definition of rape under the Sexual Offences Act differ from that in the
now-repealed provisions of the Penal Code?

Under the Penal Code, rape was limited to being committed by males against females.
However, under the Sexual Offences Act, the offense can be committed by a person of either
gender on a person of either gender. It allows for the possibility of a man raping a woman,
another man, or vice versa.

What is the Actus Reus of rape, and why is penetration crucial for the offense?

The Actus Reus of rape is the penetration of the victim's genitalia with the offender's male or
female organs. Penetration is crucial because it is the crux of the offense. Even the slightest
penetration is sufficient to establish the offense of rape.

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What is the definition of "penetration" under the Sexual Offences Act, and how does it
differ from the definition in the repealed provisions of the Penal Code?

"Penetration" under the Sexual Offences Act is defined as the partial or complete insertion of
the genital organs of a person into the genitalia organs of another person. Notably, the Act
includes the anus in the definition of genitalia, which differs from the previous definition
under the repealed provisions of the Penal Code, where it only referred to the vagina.

What is the Mens Rea required for rape?

The Mens Rea required for rape includes the intention to have unlawful penetration without
consent, or with consent obtained through force, fraud, or false pretenses. The offender must
have the intention to proceed with penetration despite the lack of consent from the victim.

How does lack of consent play a crucial role in establishing the crime of rape?

Lack of consent is a fundamental element of the crime of rape. The definition of rape makes
it clear that lack of consent on the part of the victim is at the core of the offense. Even if
apparent consent was obtained through false pretenses or personation, a charge of rape can
still be brought against the perpetrator. Without consent, the act constitutes rape; however, if
there is consent, there cannot be a charge of rape.

How is treason defined under the Penal Code of Kenya?

Treason, as defined in section 40 of the Penal Code of Kenya, involves two types of offenses.
- The first type occurs when a person imagines, invents, devises, or intends to cause harm
to the President, unlawfully depose the President from office, or unlawfully overthrow the
government. This must be expressed in writing, print, or through overt acts.
- The second type is committed by a person who levies war against Kenya, supports
enemies of the Republic, or instigates armed invasion into Kenya.

The penalty for the offense of treason under section 40(3) of the Penal Code is mandatory
death.

Section 40 of the Penal Code - treason is where an individual or persons:

(a) compasses, imagines, invents, devises or intends –
(i) the death, maiming or wounding, or the imprisonment or restraint, of the President; or
(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
(iii) the overthrow by unlawful means of the Government; and.
(b) expresses, utters or declares any such compassing, imaginations, inventions, devices or
intentions by publishing and printing or writing or by any overt act or deed, is guilty of
the offence of treason

Can both citizens and aliens commit the offense of treason in Kenya?

Yes, the offense of treason can be committed by both citizens and aliens within the
boundaries of the Republic of Kenya, as long as they owe allegiance to the country.

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What is the offense of misprision of treason?

Misprision of treason, defined in section 42 of the Penal Code, involves the concealment of
treason. It can be committed by a person who is an accessory after the fact of treason,
assisting the guilty party in escaping. It can also be committed by someone who knows about
a planned treasonable act but fails to inform the relevant authorities or take reasonable
measures to prevent it.

A person convicted of misprision of treason is liable to life imprisonment.

What is Treasonable Felony under the Penal Code?

Treasonable Felony, defined in section 43 of the Penal Code, is an offense committed by a

person who does not owe allegiance to the Kenyan state but carries out acts that would
amount to treason if done by a person owing allegiance. The penalty for this offense is life
imprisonment.

What constitutes the offense of Treachery under the Penal Code?

The offense of Treachery, created by section 43A of the Penal Code, involves a person doing
acts to assist the enemy of the Republic, interfere with public order, interfere with the
government of Kenya, impede the operations of the disciplined forces, or endanger life. A
person convicted of treachery is liable to life imprisonment.

What actions are considered offenses under the category of Promoting Warlike
Undertaking in the Penal Code?

Offenses under the category of Promoting Warlike Undertaking, defined in section 44 of the
Penal Code, involve a person carrying on, making preparation for, aiding in, advising on, or
preparing for any war or warlike undertaking within, for, by, or against any person, body, or
group of persons in Kenya. The penalty for this offense is life imprisonment.

Are there any offenses related to interference with the armed forces in the Penal Code?

Yes, sections 46, 47, 48, and 49 of the Penal Code define offenses relating to interference
with the armed forces. These offenses include dissuading persons from enlisting in the armed
forces, inciting members of the armed forces to mutiny or disobey lawful orders, and
procuring desertion of armed forces members.
What are the penalties for offenses related to interference with the armed forces?

The penalties for these offenses are not specified in the provided text. Further information
from the relevant sections of the Penal Code would be required to determine the specific
penalties.

What is the purpose of defences in criminal law?

Defences in criminal law are used by accused parties to justify or excuse the commission of
crimes. They aim to achieve an acquittal or a reduced sentence by arguing that the accused's

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behavior was excusable or justified, and thus, the required elements of mens rea or actus reus
for the crime are not present.

What are the types of defences

- Insanity
- Intoxication
- Infancy
- Duress/Compulsion
- Necessity
- Superior Order
- Accident
- Consent
- Bona Fide Claim Of Right
- Defence Of Person Or Property( Incl Self Defence)-
- Mistake Of Fact
- Provocation
- Alibi
- Innocent Intention And Absence Of Mens Rea:

What is the burden of proof when an accused raises the defence of insanity?

In the defence of insanity, the burden of proof lies on the accused. They are expected to
provide adequate evidence to establish that they were insane at the time of committing the
crime. The presumption of sanity, as established in Section 11 of the Penal Code, can be
rebutted by the accused proving that they were not sane at the time of the alleged crime.

What are the requirements for the defence of insanity to be valid?

For the defence of insanity to be valid, the accused must demonstrate the following:

A) Defect of Reason: The accused must have been suffering from a disease of the mind at the
time of the act. This disease should be medically approved, such as schizophrenia or
depression, and capable of leading to disoriented thinking.
B) Incapacities: The accused must prove that the disease of the mind led to either an
incapacity to understand what they were doing or an incapacity to know that what they were
doing was wrong.

What is the The M’Naughton rule?

This is a legal test used in many common law jurisdictions to determine the mental state of an
accused person at the time they committed a crime. The rule originated from the famous
English case R v McNaughton (1843).
According to the McNaughton rule, the accused can be found not guilty by reason of insanity
if the following conditions are met:
 Defect of Reason: The accused must have been suffering from a "defect of reason." This
means that at the time of committing the crime, the person's mental faculties were
impaired due to a mental disorder or disease of the mind. The impairment must have been
significant enough to affect their ability to understand the nature and quality of their
actions.

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 Disease of the Mind: The impaired mental state must have been caused by a "disease of
the mind." This term has been interpreted broadly to include various mental disorders and
illnesses, ranging from severe psychiatric conditions to temporary episodes of mental
disturbance.
 Lack of Knowledge or Understanding: As a result of the mental defect or disease, the
accused did not know the nature and quality of their actions. This means they were not
aware of what they were doing or did not understand the wrongfulness of their actions. In
other words, they lacked the ability to comprehend the moral or legal implications of their
conduct.

The burden of proof for establishing the defense of insanity lies with the defense. It is
typically required to prove, on the balance of probabilities, that the accused meets the criteria
laid out in the McNaughton rule.

Under what circumstances can intoxication be used as a defence?

Intoxication can only be used as a defence in specific situations, such as:

a) Involuntary Intoxication: When a person is intoxicated against their will or involuntarily.

b) Intoxication Amounting to Insanity: When intoxication leads to a state of insanity, similar
to the defence of insanity under Section 13(2) of the Penal Code.
c) Intoxication Negating Mens Rea: When the accused's intoxication affects their ability to
form the required mens rea for the offence charged.

What is the age limit under which a person is considered not criminally responsible
according to Section 14(1) of the Penal Code?

According to Section 14(1) of the Penal Code, a person under the age of 8 years is not
criminally responsible for any acts or omissions.

What are the conditions that need to be satisfied for the defence of duress/compulsion to
apply?

The conditions for the defence of duress/compulsion to apply are as follows:

a) The offence is committed by two or more offenders.
b) The compulsion consists of threats to kill or cause grievous harm to the person compelled
if they refuse. c) The threats are applied throughout the period of the commission of the
offence.

What is the basis of the defence of necessity?

The defence of necessity is based on the principle that unlawful acts performed with the
intention of avoiding a greater harm are considered justified and not illegal. It is used when
the accused is confronted with a choice of evils and reasonably believes that their act or
omission would avert a greater harm.

What is the concept of "superior orders" in criminal law?

The concept of "superior orders" refers to a situation where a person is not criminally
responsible for an act or omission done in obedience to an order they are bound by law to

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obey, unless the order is unlawful. This plea is often raised by military, law enforcement, or
civilian personnel who claim they were following orders from a superior officer or official.

Under what circumstances can a person claim the defence of accident?

The defence of accident is applicable when a person engages in an innocent act without any
mens rea, and there was no foreseeability that their act would lead to the commission of a
crime. It can be used unless the person is charged with an offence that expressly declares
liability by negligence.

Please note that these answers are based on the information provided in the topic you shared.
Legal matters can be complex and may vary by jurisdiction, so it is essential to consult legal
professionals for specific advice and guidance.

What is consent, and how does it serve as a defense in certain criminal cases?

Consent is the voluntary agreement of a person to a particular action or activity. In certain

criminal cases where the definition of the offense includes the absence of consent as an
element of the actus reus (the guilty act), the defense of consent may be raised. This defense
can be used, for example, in cases of rape, criminal trespass, or any offense where the law
requires explicit consent for the act to be lawful. The accused can claim that they had the
necessary consent to perform the action, and it is the prosecution's burden to prove beyond
reasonable doubt that the accused acted without consent.

What is a bona fide claim of right, and in what type of cases can it be used as a defense?

A bona fide claim of right is a defense raised by an accused person who genuinely believed
that they were entitled by law to act in the manner they did. This defense is primarily
applicable in cases of theft, malicious damage of property, and intimidation. According to the
Penal Code, a person may not be criminally responsible for an offense relating to property if
their actions were done in an honest claim of right and without the intention to defraud. To
use this defense, the accused must prove that they honestly believed they had the right to act
as they did.

How is self-defense governed by the law, and what are the key elements of the defense of
a person or property?

Self-defense, also known as defense of a person or property, is governed by Section 17 and

241 of the penal code. It is divided into three types of defenses: defense of person (self-
defense), defense of another person, and defense of property. The key elements of self-
defense include:
 The accused must have been under attack.
 The accused must have reasonably believed that they were in imminent danger of
death or serious bodily harm due to the attack.
 The accused must have believed that it was necessary to use force to repel the attack.
 The force used by the accused must be proportionate to the threat they faced.

What is the defense of provocation, and how does it differ from an absolute defense in
criminal cases?

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The defense of provocation is a partial defense to murder that, if accepted, can reduce the
charge to manslaughter. It involves proving that the accused was provoked by a wrongful act
or insult to the extent that they lost self-control, leading them to commit the assault that
caused the victim's death. Unlike an absolute defense, which completely absolves the accused
of criminal liability, the defense of provocation only mitigates the severity of the charge from
murder to manslaughter.

How does the defense of alibi work, and what is required to raise a successful alibi
defense?

The defense of alibi is raised when the accused claims that they were not present at the scene
of the crime at the time it was committed. To raise a successful alibi defense, the accused
must provide evidence supporting their claim of being elsewhere during the crime's
occurrence. This evidence can include witnesses, documents, or any other credible proof that
establishes their absence from the crime scene at the relevant time. The prosecution is then
required to present evidence to refute the alibi defense and prove the accused's presence at the
scene of the crime.

What are the different types of immunity under criminal law?

Presidential Immunity- Article 143 COK provides protection to the president or any person
performing functions of that office from criminal proceedings during their tenure of office.
Diplomatic Immunity-Sec 31 Privileges And Immunity Act grants protection to
Diplomatic agents, consular posts and heads of state from criminal jurisdiction of the
receiving state. It includes the obligation not to give evidence.

What is the capital punishment, and which offenses can lead to a death penalty in
Kenya?

Capital punishment, also known as the death penalty, is the most severe form of punishment
where the convicted individual is sentenced to death. In Kenya, the death penalty is
applicable to offenses such as murder, treason, and robbery with violence. However, it's
worth noting that the Constitution recognizes the death penalty but does not make it
mandatory, as established in the case of Mutiso v Republic.

What are the different forms of imprisonment as punishment in Kenya?

In Kenya, imprisonment is a common form of punishment for various offenses. There are two
main types of imprisonment:
a) Imprisonment for life: This applies to offenses like manslaughter, and it means the
convicted individual will remain in prison for the rest of their life, unless they are granted a
pardon or have their sentence commuted.
b) Imprisonment for a limited term: Some offenses attract imprisonment for a specific
duration, such as robbery, which can lead to a term of not more than 14 years imprisonment
under Section 195 of the Penal Code.

How are fines determined as a form of punishment, and what factors are considered by
the court when imposing a fine?

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 Fines are monetary penalties imposed by the court on a convicted individual. The court has
discretion in determining the amount of the fine, and the principles governing the imposition
of fines are outlined in Section 28 of the Penal Code. When imposing a fine, the court
considers factors such as the gravity of the offense, the offender's ability to pay, the
magnitude of the offense, and the potential for reconciliation between the parties involved.

In what circumstances can a court use the punishment of caution, and for which types
of offenses is it applicable?

A court can use the punishment of caution in minor offenses or offenses where it is expressly
stated that upon conviction, the offender shall be cautioned. This form of punishment is
applicable to small offenses or petty cases. An example of an offense that may be subject to a
caution is elopement.

How does community service serve as a form of punishment, and under what conditions
is it applied by the court?

Community service is a form of punishment where a court, with the consent of the convict,
orders the offender to perform community work instead of being sent to prison. This form of
punishment is applicable to offenses where the maximum sentence does not exceed two
years. The specific type of community work can vary depending on the circumstances and the
needs of the community.

What is the Significance of international criminal law

The significance of international criminal law lies in its ability to hold individuals
accountable for the most serious and egregious crimes that threaten the international
community as a whole. The key significance of international criminal law includes:
 Preventing Impunity: International criminal law aims to ensure that those responsible
for committing grave crimes, such as genocide, war crimes, crimes against humanity, and
aggression, do not escape justice. This helps prevent impunity, where perpetrators believe
they can commit crimes without facing consequences.
 Deterrence: The existence of international criminal tribunals and the possibility of
prosecution act as a deterrent against potential perpetrators. Knowing that they could be
held individually responsible for their actions, individuals may be less likely to commit
serious crimes.
 Reconciliation and Justice: By prosecuting and punishing those responsible for
international crimes, international criminal law seeks to bring justice to victims and
affected communities. This process can contribute to reconciliation and healing in
societies that have experienced conflicts and atrocities.
 Contributing to International Peace and Security: Addressing and prosecuting serious
international crimes can help contribute to peace and security at the international level.
By holding perpetrators accountable, it may help to prevent future conflicts and atrocities.
 Developing International Law: International criminal law has played a crucial role in
developing and clarifying international legal principles related to individual criminal
responsibility for serious crimes. It has contributed to the evolution of international law
and established important precedents for future cases.
Crimes that can be tried internationally include:
 Genocide: Genocide involves acts committed with the intent to destroy, in whole or in
part, a national, ethnic, racial, or religious group. These acts can include killing members

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 of the group, causing serious bodily or mental harm, imposing measures to prevent births,
or forcibly transferring children of the group to another group.
 War Crimes: War crimes refer to serious violations of the laws and customs of war
committed during international or non-international armed conflicts. These can include
intentional killing, torture, cruel treatment, taking hostages, attacking civilians, and other
acts that cause unnecessary suffering or violate fundamental human rights.
 Crimes Against Humanity: Crimes against humanity encompass a range of acts
committed as part of a widespread or systematic attack against any civilian population.
These acts include murder, enslavement, forced deportation or transfer of populations,
torture, rape, and other inhumane acts causing great suffering or serious injury to physical
or mental health.
 Aggression: The crime of aggression involves the planning, preparation, initiation, or
execution of an act of aggression by a state against another state. Aggression refers to the
use of armed force in violation of international agreements or the UN Charter.
It is important to note that international criminal law is primarily applied through
international criminal tribunals and courts, such as the International Criminal Court (ICC)

What is the crime of hate speech?

Hate speech is regulated by Article 33 of the Constitution, which addresses Freedom

of Expression. According to this article:
(1) Every individual possesses the right to freedom of expression, encompassing:
(a) The freedom to seek, receive, or impart information or ideas;
(b) Freedom of artistic creativity; and
(c) Academic freedom and freedom of scientific research.

However, freedom of expression has limitations, particularly when it comes to hate

speech.
Article 33(2) specifies that:
(2) The right to freedom of expression does not extend to:
(a) Propaganda for war;
(b) Incitement to violence;
(c) Hate speech; or
(d) Advocacy of hatred that:
(i) Constitutes ethnic incitement, vilification of others, or incitement to cause harm; or
(ii) Is based on any ground of discrimination specified or contemplated in Article 27(4).

National Cohesion and Integration Act No. 12 of 2008 defines hate speech under section
13 as a person who publishes or distributes written material;

(a) uses threatening, abusive or insulting words or behaviour, or displays any written
material;
(b) presents or directs the performance the public performance of a play;
(c) distributes, shows or plays, a recording of visual images; or
(d) provides, produces or directs a programme, which is threatening, abusive or insulting
or involves the use of threatening, abusive or insulting words or behavior commits an
offence if such person intends thereby to stir up ethnic hatred, or having regard to all
the circumstances, ethnic hatred is likely to be stirred up.

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(2) Any person who commits an offence under this section shall be liable to a fine not
exceeding one million shillings or to imprisonment for a term not exceeding three years or to
both.

(3) In this section, “ethnic hatred” means hatred against a group of persons defined by
reference to colour, race, nationality (including citizenship) or ethnic or national origins.

LEGAL SYSTEMS AND METHODS

What is the essence of Legal Systems & Legal Methods?

The essence of legal systems lies in their function of governing social behavior and resolving
disputes through a set of rules of substance and procedure. Legal systems encompass both the
rules and institutions that govern society. On the other hand, legal methods refer to the
techniques and tools used by those involved in the creation, activation, or operation of the
law to achieve specific legal outcomes. This involves rules of interpretation and other
methodologies used to determine legal consequences. In essence, legal systems address the
"what" and "why" of law, while legal methods address the "how" of law.

What is Law?

Law is a system of rules and regulations that authorize and recognize legitimate authority,
provide mechanisms for dispute resolution, and facilitate interpersonal relationships while
accommodating societal changes. There is no universally accepted definition of law, and
different approaches exist to explain its meaning and functions. The two main orientations in
defining law are positivism and naturalism.

What are the functions of law?

The general functions of law include:

1. Facilitating and effectuating private relationships, such as family law.
2. Resolving social conflicts.
3. Maintaining social control.
4. Protecting public order.
5. Resolving disputes.
6. Protecting the certainty of legal systems.
7. Facilitating orderly change.
8. Establishing justice in society.
9. Outlining the limits of governmental authority.

What are the philosophical foundations of law?

The philosophical foundations of law refer to different schools of thought that attempt to
explain the nature and authority of legal systems.

Under the ambit of social foundations of law, two prominent philosophical foundations are
discussed:

a. Natural Law Theory: This philosophy emphasizes laws that are inherent and common to
all societies, regardless of being formally written or enacted. It posits that law is rational and

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reasonable. Natural law legal theory suggests that the authority of legal standards derives, at
least in part, from moral considerations. It is believed that the natural law governs human
behavior and is a reflection of the eternal law, which is a divine design of law. The
application of natural law varies in different legal systems, with some laws following natural
law principles while others may not align entirely.

b. Legal Positivism: Legal positivism views law as a product of social construction, and it
emphasizes that law consists of positive norms made by the legislator or established as
common law or case law. According to John Austin, positive law is a series of commands
from a higher authority to the people, reflecting the sovereign's wishes and based on the
sovereign's power. However, this sovereign power concept may not apply in all legal
systems, such as democratic societies like Kenya. Legal positivism often separates law from
moral considerations, but in practice, some laws may incorporate moral aspects.

c. Historical School: The historical school of thought in legal philosophy focuses on

understanding law through historical development and evolution. It seeks to comprehend
legal concepts and principles based on their historical context and how they have evolved
over time. This approach aims to interpret and apply the law with an appreciation for its
historical foundations and influences. However, the information provided doesn't offer a
detailed explanation of the historical school's perspective, so further research would be
necessary to provide a comprehensive answer.

Explanation of Legal Systems of the World

a. Common Law System: In the common law system, courts base their decisions on prior
judicial pronouncements rather than legislative enactments. Judges rely on past cases
(precedents) to guide their decision-making, which leads to the development of a body of
case law. Precedents set by higher courts are binding on lower courts within the same
jurisdiction, creating a system of stare decisis (the principle of following established legal
precedents). Common law systems are characterized by their flexibility in adapting to social
changes and unanticipated controversies. Disputes are settled through an adversarial process,
with parties presenting their cases before a neutral fact finder, and decisions can be appealed
to higher courts.
b. Civil Law Systems: The civil law system places a strong emphasis on written laws and
legislation as the primary source of law. Courts base their judgments on codes and statutes,
with judges applying the law to specific cases. Civil law systems are inquisitorial, meaning
judges play a more active role in the trial process, and they are not bound by precedent as
strictly as in common law systems. Instead of relying on case law, civil law systems focus on
formulated general principles found in legislation. Civil law systems trace their roots back to
Roman law and the Napoleonic Code.
c. Religious Legal Systems: Religious legal systems are based on religious texts and
principles. The most prominent examples are Sharia in Islam and canon law in some
Christian groups. Sharia law governs many aspects of life in Islamic countries and is based on
interpretations of the Quran and Sunnah. Canon law in Christianity is inspired by religious
teachings but is not considered divine law. Religious legal systems may vary in their
methodologies, with some following legal precedent (similar to common law) and others
relying more on religious edicts and principles.
d. Plural Systems: Plural legal systems exist where multiple legal systems coexist within one
geographic area. This often occurs in former colonies, where the law of the former colonial
authority coexists with traditional legal systems. Individuals may choose to bring their legal
claims under the system they believe will provide them with the best advantage. Legal

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pluralism can also occur when different laws govern different groups within a country, as
seen in certain jurisdictions with special courts for specific communities.
e. Hybrid Systems: Hybrid legal systems arise when a mixture of legal notions from
different legal systems coexist simultaneously. India is a prominent example of a hybrid legal
system, which combines civil, common law, and customary or religious law. Different
personal law codes apply to different religious communities, and decisions by higher courts
are binding on lower courts.
f. Judicial System and Quasi-judicial System: The judicial system refers to the network of
courts responsible for hearing and deciding legal cases. The quasi-judicial system focuses on
specialized tribunals or bodies that have a judicial role in specific areas, such as
environmental issues, legal education appeals, sports disputes, tax appeals, etc.
g. Inquisitorial and Adversarial System: In the inquisitorial system, judges play a more
active role in court proceedings, summoning witnesses and parties to gather evidence. This
system is commonly found in civil law jurisdictions. On the other hand, adversarial systems,
like those in Kenya, involve judges acting as referees or umpires, with parties presenting their
cases and evidence before the court.

Comparison of Common Law System and Civil Law System:

Sources of Law:
 Common Law: The primary source of law in the common law system is case law or
judicial decisions, and statutes are seen as secondary to case law.
 Civil Law: The primary source of law in the civil law system is legislative statutes, and
judges base their decisions on codes and statutes.
Role of Precedent:
 Common Law: Precedent (stare decisis) is strongly relied upon, and decisions of higher
courts are binding on lower courts within the same jurisdiction.
 Civil Law: Precedent is not as strongly relied upon as in common law systems, and judges
have more freedom to interpret laws in specific cases.
Approach to Lawmaking:
 Common Law: Common law systems have a bottom-up approach to lawmaking, where
principles emerge from individual cases.
 Civil Law: Civil law systems have a top-down approach, with laws established in
statutes, and judges interpret laws to derive conclusions about specific cases.
Historical Roots:
 Common Law: Common law systems trace their history to England and have evolved
over time through case law development.
 Civil Law: Civil law systems trace their history to Roman law and were influenced by
the Napoleonic Code.
Judicial Role:
 Common Law: Common law judges have an active and creative role in lawmaking.
 Civil Law: Civil law judges play a more passive and technical role, interpreting laws
rather than creating them.
Role of Legal Scholarship:
 Common Law: Legal scholarship plays a secondary and peripheral role in common
law systems.
 Civil Law: Legal scholarship has an extensive and influential role in civil law
systems.
Judicial Review:
 Common Law: Common law systems typically incorporate judicial review of statutes
and executive actions.

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  Civil Law: Judicial review of statutes and executive actions is not usually
incorporated in civil law systems.
Trial Format:
 Common Law: Common law systems have an accusatorial and confrontational trial
format.
 Civil Law: Civil law systems have an inquisitorial and collaborative trial format.
Continuity of the Legal System:
 Common Law: Common law systems are evolutionary, and changes to the law are
gradual, based on precedents.
 Civil Law: Civil law systems are revolutionary, and changes to the law occur
immediately after new legislation is enacted.

What are the classifications of law?

Local & International Law:
 Local (Municipal) Law: This comprises domestic laws applicable within a given state,
such as laws enacted by the national parliament. In Kenya, most laws fall under this
category, operating within the geographical limits of the country.
 International Law: Regulates legal relations at the international level and has
extraterritorial effect, affecting states outside their borders. International law operates
between sovereign states and is binding on the international community at large.
Kenya incorporates general rules of international law, customary international law,
and ratified treaties into its legal system.

Monism and Dualism:

 Monism: In monist states, international and national legal systems are unified into one
body of law, and international law is directly applied by national courts without the
need for translation into domestic law.
 Dualism: In dualist states, there is a clear distinction between international law and
domestic law. International law requires translation into national law to be accepted
and treated as part of the national legal system.

Substantive & Procedural Law:

 Substantive Law: Concerned with defining legal rights, obligations, and remedies of
individuals or entities. It establishes the rules and principles governing legal
relationships between parties.
 Procedural Law: Concerned with the legal procedure or steps to be followed in the
enforcement of rights and obligations defined by substantive law. It governs the
process of bringing a legal action to court and the conduct of legal proceedings.

Civil Law Procedure & Criminal Law/Procedure:

 Civil Law Procedure: Primarily concerned with the regulation of relationships
between individuals (plaintiffs and defendants). Civil litigation is initiated by the
injured party (plaintiff) claiming injury or violation of their rights. The burden of
proof initially lies with the plaintiff, and the standard of proof is a preponderance of
the evidence.
 Criminal Law/Procedure: Concerned with the definition, prevention, detection, and
punishment of crimes. Criminal cases are initiated by the state, and the accused is
presumed innocent until proven guilty beyond a reasonable doubt. The burden of
proof lies with the state, and the accused does not need to prove their innocence.

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Private and Public Law:
 Public Law: Regulates the relationship between the state and individuals or citizens. It
includes constitutional law and administrative law, dealing with matters of public
interest and governance.
 Private Law: Primarily concerned with regulating relationships between individuals or
private entities. It covers areas such as contract law, family law, and tort law,
governing private interactions and disputes.

Written & Unwritten/Uncodified Law (Statutory and Non-Statutory Laws):

 Statutory Law: The formal written law of a country enacted by the legislative
authority and ratified by the highest executive in the government. Statutes are
published and command, prohibit, or declare policy.
 Non-Statutory Law (Common Law): Consists of legal principles developed and
derived from court decisions and judicial precedent rather than written statutes. It is
an essential part of the legal systems of countries with a common law tradition, such
as those once part of the British Empire. Non-statutory law includes common law,
customary law, and judicial decisions

What are the sources of Law in Kenya?

The sources of law in Kenya are as follows: a) The Constitution: The supreme law of the
Republic, binding all persons and state organs at both levels of government. Any law
inconsistent with the Constitution is void to the extent of the inconsistency. b) Statutes: Laws
enacted by the Kenyan Parliament. c) Delegated Legislation: Laws made by state organs,
state officers, or persons under the authority given by an Act of Parliament. d) Acts of
Foreign Legislative Bodies: Certain British statutes may apply in Kenya under specific
criteria. e) Common Law: Decisions made by courts based on prior judicial pronouncements,
guided by the doctrine of Stare Decisis. f) Doctrines of Equity: Principles of fairness and
justice that supplement strict rules of law. g) Customary Law: Traditional practices
recognized as law, subject to certain conditions. h) International Law: General rules of
international law and treaties ratified by Kenya.

What does Section 3 of the Judicature Act of Kenya on the Sources of Law in Kenya?

Section 3(1) of the Judicature Act states that the jurisdiction of the High Court, the Court of
Appeal, and all subordinate courts in Kenya shall be exercised in conformity with:
 Kenyan law (the Constitution)
 Statutes of general application as of 12th August 1897, subject to specific criteria
 Common law (judges' interpretations on law - case law)
 Customary law, which should not be repugnant to justice and morality, subject to
good practice
 Doctrines of equity and statutes of general application in force in England on 12th
August 1897, to the extent that circumstances in Kenya permit.

Explain the sources of law

 The Constitution: The supreme law of Kenya, binding all persons and state organs. It
provides fundamental rights, principles, and structure of government.
 Statutes: Laws enacted by the Kenyan Parliament, derived from the legislative authority
vested in Parliament by the people.

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 Delegated Legislation: Laws made by state organs or individuals under authority given
by an Act of Parliament, subject to specified purposes and limits.
 Acts of Foreign Legislative Bodies: Certain British statutes may apply in Kenya if they
meet specific criteria, as specified in the Judicature Act.
 Common Law: Judicial decisions based on precedents, guiding courts in similar cases,
while adhering to the doctrine of Stare Decisis.
 Doctrines of Equity: Principles of fairness and justice that supplement strict legal rules,
aiming to prevent unjust outcomes.
 Customary Law: Traditional practices recognized as law, applicable under certain
conditions and not inconsistent with written law or public policy.
 International Law: General rules of international law and treaties ratified by Kenya,
forming part of the law of Kenya. A source of law that is not mentioned in the Judicature
Act is international law. However, the Constitution provides in article 2 that the general
rules of international law shall form part of the law of Kenya. Moreover, any treaty or
convention ratified by Kenya shall form part of the law of Kenya according to the
Constitution.

What are the Maxims of Equity?

Maxims of equity are fundamental principles that guide courts in applying equitable
remedies. Some of the well-known maxims of equity include: a) "He who seeks equity must
come with clean hands." b) "Equity will not suffer a wrong to be without a remedy." c)
"Equity aids the vigilant, not those who slumber on their rights." d) "Equality is equity." e)
"Equity follows the law." f) "Where there is a right, there is a remedy." g) "Equity looks to
the intent rather than the form." h) "Equity acts specifically, not by way of damages."

What is the reasoning behind Establishing the Maxims of Equity?

The maxims of equity were developed to address situations where strict application of
common law rules would lead to unjust outcomes. Equity seeks to supplement the law in
cases where the law itself may not provide an adequate remedy. The underlying rationale is to
achieve fairness, justice, and moral considerations in legal decisions, especially when
following the common law would lead to harsh or inequitable results.

What are some Examples of Some Maxims of Equity and Their Explanations for
Application?

 "He who seeks equity must come with clean hands": This maxim requires that a party
seeking equitable relief must have acted fairly and without wrongdoing in the matter. A
plaintiff who has engaged in misconduct or acted in bad faith may be denied equitable
remedies.
 "Equity will not suffer a wrong to be without a remedy": This principle ensures that a
party with a legitimate claim is not left without a remedy simply because the common law
does not provide for it. Equity seeks to fill the gaps where the law is inadequate.
 "Equity Aids The Vigilant, Not Those Who Slumber On Their Rights": This maxim
emphasizes the importance of timely action in seeking equitable relief. If a party delays in
asserting their rights, they may be barred from obtaining equitable remedies.
 "Equality is equity": This principle suggests that equal treatment should be given to
similarly situated parties. Equitable remedies aim to achieve fairness and equality in
addressing legal disputes.

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 "Equity Follows The Law": This maxim indicates that equity operates alongside the
common law and should not contradict established legal principles. It ensures that equity
does not override the law but supplements it when necessary.
 "Where there is a right, there is a remedy": This principle ensures that parties with
legal rights are entitled to seek remedies to enforce those rights. Equity supports the
availability of remedies to protect individuals' rights.
 "Equity Looks To The Intent Rather Than The Form": This maxim highlights that in
equitable matters, courts focus on the substance of the transaction or relationship rather
than its formalities. Equity seeks to achieve the true intentions of the parties involved.
 "Equity Acts Specifically, Not By Way Of Damages": This principle suggests that
equity is more concerned with providing specific remedies tailored to the circumstances
rather than awarding monetary damages. Specific performance, injunctions, and
declarations are common equitable remedies.

What is the applicability of customary law in Kenya?

The applicability of customary law in Kenya is recognized and regulated under the legal
system, with certain conditions and limitations. Customary law refers to the practices,
traditions, and customs of specific communities or tribes that have been consistently followed
over time. Here's how customary law applies in Kenya:
 Recognition in the Judicature Act: The Kenyan legal system acknowledges customary
law as part of Kenyan law. Section 3(2) of the Judicature Act recognizes the authority of
customary law within the Kenyan legal framework.
 Conditions for Application: For customary law to be applied in Kenyan courts, certain
conditions must be met: (i) Parties Subject or Affected: One or more parties involved in
the case must be subject to or affected by the customary law in question. (ii) Consistency
with Written Law: Customary law cannot be applied if it contradicts any written law,
whether in the Constitution or other statutes. (iii) Compliance with Justice and Morality:
The court must ensure that the application of customary law aligns with principles of
justice and morality.
 Supremacy of the Constitution: The Kenyan Constitution, particularly Article 2,
ensures that any customary law inconsistent with the Constitution is void to the extent of
the inconsistency. The Constitution takes precedence over customary practices that
violate fundamental rights and principles enshrined in the Constitution.
 Law of Succession Act: The Law of Succession Act recognizes the validity of certain
customary laws pertaining to the distribution of property on intestacy. Section 33 of the
Act provides that the law or custom applicable to the distribution of property shall be that
of the deceased's community or tribe, subject to the provisions of the Act.
 Article 11 of the Constitution: Article 11 of the Kenyan Constitution emphasizes the
importance of culture as the foundation of the nation and the cumulative civilization of
the Kenyan people. It encourages the promotion of all forms of national and cultural
expression, including customary practices that are in harmony with constitutional
principles.
 Case Law Examples: Courts in Kenya have recognized and upheld certain customary
practices that are not contrary to constitutional principles. For example, in the case of
Monica Jesang Katam v Jackson Chepkwony & Another [2011], the High Court upheld
the right of inheritance in a woman-to-woman marriage under the Nandi tradition. The
court considered contemporary social systems and practices within the Nandi community
as aspects of culture protected by Article 11 of the Constitution.

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 Limitations: While customary law is recognized, Article 2(4) of the Constitution
stipulates that any law, including customary law, inconsistent with the Constitution, is
void to the extent of the inconsistency. Furthermore, Article 159 of the Constitution
enjoins the courts to ensure that traditional dispute resolution mechanisms do not
contravene the Bill of Rights, are not repugnant to justice and morality, and are not
inconsistent with the Constitution or any written law.

In conclusion, the applicability of customary law in Kenya is subject to specific conditions

and limitations to ensure that it is consistent with the Constitution and does not violate
fundamental rights and principles. Customary law is recognized as part of the Kenyan legal
system and can be applied in certain cases, but it must comply with constitutional standards
of justice and morality.

What is the Law-Making Process in Kenya?

The law-making process in Kenya primarily occurs in the Parliament, which is bicameral and
comprises the Senate and the National Assembly. Here is an overview of the law-making
process in Kenya:
 Origin of Bills: Bills can originate from various sources, such as political parties, the
National Executive, individual members of Parliament, committees of the House, or
through petitions from the public.
 b. First Reading: The first reading is a formal stage where the Clerk introduces the Bill
to the House by reading its title. No debate or voting occurs during this stage. The Bill is
referred to a relevant departmental committee for public participation and scrutiny.
 c. Second Reading: During the second reading, members of Parliament debate the main
purpose and principles of the Bill. The advantages, disadvantages, and implications of the
Bill are discussed. The Bill is moved by the sponsor and can be seconded by any member
of the House.
 Committee Stage: The Bill is scrutinized in detail at the committee stage, usually
through the Committee of the Whole House. The committee conducts a line-by-line study
of the Bill's clauses and votes on each modification. Amendments may be proposed and
incorporated into the Bill during this stage.
 Report Stage: Following the committee stage, a report is presented to the House with
any modifications made to the Bill. The House may further amend or approve the Bill as
presented in the report.
 Third Reading: During the third reading, a general discussion of the Bill takes place
after the report stage. Members can debate the Bill's content, but no further amendments
are allowed. The House takes a final vote on the Bill.
 Presidential Assent: If the House passes the Bill, it is presented to the President for
assent. The President has the option to assent to the Bill, making it an Act of Parliament,
or refer it back to Parliament with a memorandum of reservations.
 Referral of Bill Back to Parliament: If the President refers the Bill back to Parliament,
the House can reconsider the Bill, either accommodating the President's reservations or
passing the Bill again with a two-thirds majority.

Concurrent Bills: Some Bills require consideration and concurrence by both Houses of
Parliament. Concurrent Bills may originate in one House and be referred to the other House
for consideration. A Mediation Committee may be formed if both Houses do not agree on a
version of the Bill.

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 Process of Passing a Bill in Kenya: To pass a Bill in Kenya, it must go through the
following stages:
 First Reading: Introduction of the Bill to the House without debate or voting.
 Second Reading: Debate on the main purpose and principles of the Bill.
 Committee Stage: Detailed scrutiny and voting on each clause of the Bill.
 Report Stage: Presentation of a report with any modifications made during the committee
stage.
 Third Reading: General discussion and final vote on the Bill without further amendments.
 Presidential Assent: The President may assent to the Bill or refer it back to Parliament.

Explain the Division of a Bill or Act of Parliament in Kenya

Every Bill or Act of Parliament in Kenya is typically divided into several parts, each serving
a specific purpose. The usual division includes:
 Preliminary Provisions: Introductory sections that include the arrangement of sections,
long title, short title, commencement date, interpretation provisions, and Act number.
 Principle Provisions: Sets out the main objectives and principles of the legislative
instrument or act, including the establishment of relevant bodies.
 Substantive Provisions: Spells out the duties, powers, roles, composition, administrative
setup, and code of conduct of the established body.
 Administrative Provisions: Provides information on the organizational matters and
practical aspects to ensure the effective functioning of the law.
 Miscellaneous Provisions: Deals with important matters such as general penalty
sanctions and enforcement of the law under the act.
 Final Provisions: Addresses issues of appeals and amendments to the relevant act.
 Schedules: Part of the administrative setup, containing additional information, standard
forms, and administrative details related to the act.
 Transitional Provisions: Directs how the law will apply to new situations already in
existence.
 Marginal Notes: Concise summaries of each relevant section of the act, providing quick
reference points.

How does a bill originate in Kenya?

In Kenya, a Bill may originate from various sources, and the process for its introduction
depends on the entity proposing it. Here are the different ways a Bill can originate in Kenya:
 Political Party: A Bill can be introduced in Parliament in the name of the Leader of the
Majority Party or the Leader of the Minority Party, or their respective deputies. This
means that the leadership of a political party in Parliament can propose legislation on
behalf of the party.
 National Executive: A Bill can be introduced in the name of the Leader of the Majority
Party or the Leader of the Minority Party, or the name of the Chairperson of the relevant
Committee. This implies that the executive branch of the government, through its leaders
or committee chairs, can present Bills for consideration in Parliament.
 Individual Members of Parliament: Any member of Parliament can sponsor a Bill in
their own name. This means that individual MPs have the right to introduce legislation on
matters they are passionate about or believe are essential for the country.
 Committee of the House: A Bill can be introduced in the name of the Chairperson or a
member designated by the Committee. Parliamentary committees, which focus on

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 specific subject areas, have the authority to propose legislation related to their respective
areas of focus.
 Member of the Public Petition: According to Article 119 of the Constitution and the
Standing Orders, a member of the public has the right to petition Parliament on a
particular matter that they believe requires legislation. The petition, conveyed by the
Speaker, is then committed to the relevant Departmental Committee for consideration. If
the Committee finds the petition justified, they may proceed to draft a consequential Bill
based on the petition's subject matter.
 Members of the Public Legislative Proposals: Members of the public also have the
option to forward legislative proposals to Members of Parliament. These proposals can be
on various issues, and if an MP finds a proposal compelling, they can choose to sponsor a
Bill based on the public's submission.
In summary, a Bill can originate from political parties, the executive branch, individual MPs,
parliamentary committees, public petitions, or legislative proposals submitted by members of
the public. Once a Bill is introduced, it goes through the legislative process, as outlined in the
previous responses, to become law if approved by both Houses of Parliament and assented to
by the President.

What is the structure of the court system in Kenya?

The structure of the court system in Kenya refers to the hierarchical arrangement of courts
from the lowest to the highest one.

What is the jurisdiction of the Supreme Court of Kenya?

The Supreme Court of Kenya consists of seven Judges.

The Supreme Court of Kenya has exclusive original jurisdiction over disputes relating to the
elections of the President. It also has appellate jurisdiction to hear appeals from the Court of
Appeal and other courts or tribunals as prescribed by national legislation. Additionally, it
may give advisory opinions at the request of the national government, any State organ, or any
county government on matters concerning county government.

What is the composition of the Court of Appeal in Kenya?

The Court of Appeal in Kenya consists of not fewer than twelve judges. The head of the
Court of Appeal is the President of the Court, who is elected by the judges of the Court of
Appeal from among themselves.

What is the jurisdiction of the High Court of Kenya?

The High Court of Kenya has unlimited original jurisdiction in criminal and civil matters. It
can also determine questions related to the violation or infringement of rights or fundamental
freedoms in the Bill of Rights. The High Court hears appeals from decisions of tribunals
appointed under the Constitution for the removal of a person from office (except for the
President). Additionally, it has jurisdiction over matters relating to the interpretation of the
Constitution, conflict of laws between county and national laws, and supervisory jurisdiction
over subordinate courts and judicial or quasi-judicial authorities.

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What types of cases does the Employment and Labour Relations Court in Kenya
handle?

The Employment and Labour Relations Court in Kenya handles disputes related to
employment and labour relations. These include disputes between employers and employees,
trade unions, employer organizations, and trade unions, among others.

What is the jurisdiction of the Environment and Land Court in Kenya?

The Environment and Land Court in Kenya has jurisdiction over disputes related to the
environment and the use and occupation of, and title to land. It also exercises appellate
jurisdiction over decisions of subordinate courts and local tribunals on matters falling within
its jurisdiction.

What is the significance of the principle of exhaustion of remedies in Kenya?

The principle of exhaustion of remedies in Kenya requires parties to approach the first
instance challenge before seeking remedies at a higher court. For example, if there is a
specialized designated court for a particular matter, parties must first approach that court
before going to a higher court.

What is the difference between subject matter jurisdiction and territorial jurisdiction?

Subject matter jurisdiction refers to the type of cases a court is empowered to hear and
determine, while territorial jurisdiction refers to the geographical limits within which a court
can exercise its jurisdiction.

How many types of appeals lie to the Supreme Court of Kenya from the Court of
Appeal?

Two types of appeals lie to the Supreme Court of Kenya from the Court of Appeal:
(a) Appeals involving the interpretation or application of the Constitution; and
(b) Appeals involving a matter of general public importance, certified by the Court of Appeal
and affirmed by the Supreme Court.

Who are the heads of the above courts?

• Supreme Court - Chief Justice (Justice David Maraga)

• Court of Appeal - President (Justice William Ouko)
• High Court - Principal Judge (Justice Richard Mwongo)

Who is the Attorney General of Kenya?

Justice Paul Kihara Kariuki

Who are the current justices?

 Honourable Lady Justice Martha Koome - Chief Justice and President of the Supreme
Court.
 Honourable Lady Justice Philomena Mwilu - Deputy Chief Justice and Vice
President of the Supreme Court.

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  Honourable Justice Mohamed Khadhar Ibrahim.
 Houroable Justice Dr Smokin Wanjala.
 Houroable Lady Justice Njoki Susanna Ndung'u.
 Justice Isaac Lenaola.
 Justice William Ouko.

What is judicial review in Kenya?

Judicial review in Kenya refers to the power of the courts, particularly the High Court, to
examine and assess the legality and constitutionality of executive action, laws, and decisions
made by public bodies. It ensures that the executive does not abuse its powers and that
actions are taken within the confines of the law and the Constitution.

What are some of the writs that developed in common law and what are their
purposes?

Some of the writs that developed in common law include: (i) Habeas corpus - It orders the
release of a person who has been detained or arrested without legal justification. (ii)
Certiorari - It directs lower courts to produce the record of their proceedings. (iii) Prohibition
- It orders lower courts to stop hearing or continuing to hear a matter that is beyond their
jurisdiction or in violation of the rules of natural justice. (iv) Mandamus - It orders a person
or body to perform a certain duty.

How does judicial review aid in ensuring checks and balances in the government?

Judicial review enhances the effectiveness of the separation of powers doctrine by ensuring
that each arm of government acts within its constitutional limits and does not exceed its
powers. It allows the judiciary to act as a check on the actions of the executive and legislative
branches, ensuring that they adhere to constitutional standards and do not infringe upon
individual rights and liberties.

Is judicial review compatible with the concept of separation of powers?

Yes, judicial review is compatible with the concept of separation of powers. While the three
arms of government have their own duties and mandates under the Kenyan Constitution,
separation of powers is effective when the arms also act as checks and balances to one
another. The judiciary's role in reviewing the decisions of the political branches that do not
align with constitutional standards is not an infringement on the separation of powers but
serves as a safeguard to uphold the rule of law and constitutional principles.

How can judicial review correct the democratic process in Kenya?

Judicial review can correct the democratic process in Kenya by ensuring that elected
representatives do not behave unfavorably and pass laws or policies that are unconstitutional
or contrary to the will of the people. When the elected branches do not uphold constitutional
values and human rights, the judiciary can intervene to enforce the popular will and uphold
the rule of law.

538
Give an example of a significant judicial review case in Kenya where the court
intervened to protect democratic principles.

One example of a significant judicial review case in Kenya is the case of David Ndii and
Others vs. The Attorney General and Others 2021 (BBI judgment). In this case, the court
ruled against the President's attempt to amend the Constitution through the Building Bridges
Initiative (BBI) process, stating that it was a presidential initiative disguised as a popular
initiative. The court found that the President had violated the Constitution by initiating a
process that should have been started by ordinary citizens, as outlined in Article 257. The
court's intervention in this case protected democratic principles and upheld the Constitution's
provisions on popular initiatives.

What is the difference between judicial review and review ?

 Judicial review is when a higher authority examines the decision made by a

subordinate administrative authority to ensure its legality and proper exercise of
power.
 Review is when a court reconsiders its own decision on certain grounds like the
discovery of new evidence or an error apparent on the face of the record.

What is the difference between judicial review and appeal ?

 Judicial review focuses on the legality of the administrative action or decision-making
process itself, not the merits of the decision.
 Appeal involves a higher court reviewing the decision of a lower court or
administrative body, and the court is concerned with the merits of the decision,
ultimately substituting its own decision if necessary.

What is the difference between review and appeal?

 Review is a re-examination of a decision on specific grounds, and it typically takes
place within the same court that made the initial decision.
 Appeal involves taking the decision to a higher court, which evaluates the merits of
the decision and may replace it with a different one if necessary.

What is the difference between review and revision?

Review and revision are essentially the same thing. Both involve the same court
reconsidering its own decision, but the terms "review" and "revision" are used in different
legal proceedings – "review" in civil proceedings and "revision" in criminal proceedings.
Both processes do not require legal arguments as in an appeal.

What are the core principles of the rule of law according to Dicey?

Dicey's three principles of the rule of law are:

(i) No punishment may be inflicted on anyone other than for a breach of the law.
(ii) All individuals, regardless of rank and status, are equal under the law.
(iii) The rights and freedoms of citizens are best protected under the common law.

How does the rule of law ensure the absence of arbitrary power in the government?

539
The rule of law prevents the government from exercising arbitrary power by making sure that
laws are open, accessible, clear, and certain. It prohibits the imposition of retrospective penal
laws, ensuring that individuals can only be punished for specific breaches of the law.

What are the essential characteristics of the rule of law?

The essential characteristics of the rule of law include:

(i) A government bound by and ruled by law.
(ii) Equality before the law.
(iii) The establishment of law and order.
(iv) The efficient and predictable application of justice.
(v) The protection of human rights.

What does constitutionalism refer to, and what factors are considered while assessing
constitutionalism?

Constitutionalism refers to the idea that the conduct of the government and exercise of state
power should be limited according to established and enforceable rules. Factors considered
while assessing constitutionalism include:

(i) Whether the constitution or the law imposes any limits to the power of the state.
(ii) Whether the constitution is hierarchically superior to other legal norms.
(iii) The degree of entrenchment of the constitution, i.e., how easily it can be amended.
(iv) The degree of separation of powers.

What are the core elements of constitutionalism, and how is the supremacy of the
Constitution ensured in Kenya?

The core elements of constitutionalism include:

(i) The recognition and protection of fundamental rights and freedoms.
(ii) Separation of powers.
(iii) An independent judiciary.
(iv) The review of constitutionality of laws.
(v) The control of the amendment of the Constitution. In Kenya, the supremacy of the
Constitution is ensured through Article 2 of the Constitution, which states that the
Constitution is the supreme law of the Republic and binds all persons and state organs at both
levels of government. No person may claim or exercise state authority except as authorized
under the Constitution.

What is the purpose of the principle of separation of powers, and how does it function in
the Kenyan legal system?

The purpose of the principle of separation of powers is to avoid the abuse of power and
protect the rights and liberties of citizens. In the Kenyan legal system, there is no strict
separation of powers; instead, a system of checks and balances is employed to prevent the
concentration of power. Each branch of government has its defined area of power, and some
interaction between the institutions is necessary to avoid constitutional deadlock.

How does the system of checks and balances work in the Kenyan legal system?

540
The system of checks and balances in the Kenyan legal system involves the different
branches of government having an effect on each other to prevent the abuse of power. For
example:
 The legislative branch (National Assembly and Senate) has powers to impeach the
President and approve certain appointments made by the executive.
 The executive branch (President) can veto bills passed by the legislature and has the
power to appoint judges and grant pardons.
 The judicial branch (Supreme Court) can declare statutes as unconstitutional, settle
disputes related to presidential elections, and review the actions of other branches for
constitutionality.

What are some criticisms of the doctrine of separation of powers?

Some criticisms of the doctrine of separation of powers include:
(i) The Government is an organic body, and complete separation of organs is practically
impossible.
(ii) Absolute separation may lead to a spirit of competition rather than cooperation within the
government, resulting in clashes and deadlocks.
(iii) Separation of powers alone does not guarantee personal rights and freedoms, as other
factors like the rule of law and constitutionalism also play a role.
(iv) There is an assumption that all three branches of government are equally important, but
some branches may have more power and influence than others, leading to imbalances.

What are the two major legal systems adopted worldwide, and what are the key
distinctions between them?

The two major legal systems adopted worldwide are the Common Law and Civil Law
systems. The key distinctions between them are:
 Common Law is adversarial, while Civil Law is inquisitorial.
 In an inquisitorial system, the judge actively seeks facts and represents the interests of
the state, while in an adversarial system, opposing parties present evidence and
arguments to a judge or jury.

What is the difference between an inquisitorial system and an adversarial system in

terms of how they seek the truth and protect the rights of the accused?

In an inquisitorial system, the judge questions witnesses, actively seeks evidence, and places
the search for truth above the rights of the accused.
On the other hand, an adversarial system seeks the truth by having opposing parties present
evidence and arguments, and it places a premium on the individual rights of the accused.

How does the doctrine of precedent function in the common law system?

The doctrine of precedent, or stare decisis, in the common law system means that judges are
bound to follow the decisions made in previous similar cases. Precedents can be either
binding or persuasive, and judges must follow binding precedents even if they disagree with
them. The doctrine of precedent is what distinguishes the common law system from the civil
law system.

541
What is the distinction between "ratio decidendi" and "obiter dictum" in a judicial
decision?

"Ratio decidendi" refers to the rule of law expressly or impliedly treated as a necessary step
in reaching a judge's decision. It is the legal reasoning or ground for the judicial decision and
is binding on later courts under the doctrine of precedent. "Obiter dictum," on the other hand,
are remarks and opinions of the judge that are not necessary for the decision and are not
binding on later courts. They are by-products of the original judgment and may provide
additional insights into the case, but they do not create legal precedents.

How do judges determine whether a previous case is a binding precedent or merely

persuasive in their decision-making?

A judge will consider whether there are numerous factual similarities between the previous
case and the one before them. If the facts are relevant and similar, the precedent is more
likely to be binding. Additionally, judges may assess whether the previous case is
characterized in terms of its facts or underlying policy judgment. Precedents characterized in
terms of facts are more likely to be binding, while those characterized by policy judgment
may be more persuasive.
What is the paradox of the principle of stare decisis?

The paradox of stare decisis is that a prior case binds a court, but only if the court deciding a
future case determines that the prior case is binding. This means that judges must decide
whether a case is similar or dissimilar to prior cases before determining whether the
precedent is binding. It creates a continuous process of shaping and defining previously
announced rules through their application in later cases.

What is the significance of the doctrine of precedent in the common law system?

The doctrine of precedent is fundamental to the common law system, which is based on
judge-made law. It ensures that judges follow previous decisions and treat similar cases alike.
This consistency in legal decision-making provides predictability, fairness, and stability in
the legal system. It distinguishes the common law system from the civil law system, where
judges interpret and apply legislation, rather than following binding precedents.

What are the different methods of avoiding precedents in the common law system?

The different methods of avoiding precedents in the common law system are:
 Reversal - Where the decision is reversed on appeal in the same case, the initial decision
loses its effects
 Overruling - Occurs when a higher court decides that the first case was wrongly decided.
 Refusal to Follow - A court, not bound by the decision, refuses to follow the earlier
decision without overruling it.
 Distinguishing - Occurs when an earlier case is rejected as authority because of
differences in material facts or narrow statements of law.
 Explaining - A judge may interpret an earlier decision before applying or distinguishing
it to vary its effect.
 Per Incuriam - Decisions made in error or mistakes can be avoided.

What are the advantages of using judicial precedents in the common law system?

542
The advantages of using judicial precedents in the common law system are:
 Certainty - Precedents provide consistency and predictability in the law, allowing
citizens to know their rights and liabilities.
 Possibility of Growth - Precedents allow for the establishment of new rules and
adaptation of old rules to changing circumstances.
 Practicality - Precedents are based on real cases and real facts, making them more
practical than hypothetical legislation.
 Uniformity - Precedents bring uniformity to the law, treating similar cases in a similar
manner.
 Wealth of Detailed Rules - Precedents offer a wealth of detailed rules that might not be
feasible to include in a single code of law.

What are the disadvantages of using judicial precedents in the common law system?

The disadvantages of using judicial precedents in the common law system are:
 Rigidity - Once a rule is established, it becomes binding, even if it is thought to be
wrong, making alteration difficult.
 Complexity - Determining the exact ratio decidendi in a case can be challenging due to
multiple reasons influencing the court's ruling.
 Slowness of Growth - The system's reliance on litigation for rules to emerge can be slow
and not adapt quickly to modern demands.
 Cases May Easily be Avoided - It is possible to distinguish facts in cases to avoid
inconvenient precedents.
 Bulkiness - The vast amount of case-law can make it challenging for lawyers to know all
the relevant rules, especially in specific branches of law developed mainly through case-
law.

What is the difference between "reversal" and "overruling" in terms of avoiding

precedents?

"Reversal" occurs when the decision in a case is changed or overturned on appeal within the
same case, leading to the initial decision losing its effect. On the other hand, "overruling"
happens when a higher court decides that a previous case was wrongly decided, affecting the
application of the precedent in later cases.

What are the different approaches to interpretation in the common law legal system?

The different approaches to interpretation in the common law legal system are as follows:
 Literal Rule (Plain Meaning Rule)
 Golden Rule
 Mischief Rule
 Purposive Approach
 Integrated Rule of Interpretation (Contextual Approach)
 Non-Statutory Aids, including rules like Ejusdem Generis, Noscitur a Sociis, and
Expressio Unius.

What is the Literal Rule in statutory interpretation, and what are its advantages and
criticisms?

543
The Literal Rule, also known as the Plain Meaning Rule, requires that words in a statute
should be given their plain, ordinary, or literal meaning. Its advantages are that it encourages
draftsmen to be precise and respects the words used by Parliament. However, criticisms
include its potential to produce absurd or harsh results and the assumption that parliamentary
draftsmen are perfect.

How does the Golden Rule differ from the Literal Rule in statutory interpretation, and
what are its advantages and criticisms?

The Golden Rule allows courts to avoid absurd or harsh results by assuming that Parliament
did not intend such outcomes when the literal meaning of words leads to absurdities. Its
advantages include avoiding unjust results and repugnant situations. However, criticisms
include the lack of a clear way to test absurdity and the risk of judges "rewriting" statute law,
which should be Parliament's domain.

What is the Mischief Rule, and how does it aid in statutory interpretation?

The Mischief Rule aims to determine the "mischief and defect" that a statute seeks to remedy
and interprets the statute accordingly. It looks at the historical circumstances and the intention
behind the statute. Courts use this rule to ensure that the remedy Parliament intended is
implemented correctly.

Explain the Purposive Approach and its significance in interpreting statutes.

The Purposive Approach requires interpreting statutes in line with the true intentions of
Parliament, particularly in the context of the constitution. It gives effect to the overall purpose
of the law and takes into account how different provisions support each other. The approach
ensures that the interpretation aligns with the rule of law and considers the broader objectives
of the legislation.

What are some non-statutory aids to statutory interpretation, and how do they assist
the courts?

Some non-statutory aids to statutory interpretation are rules like Ejusdem Generis (of the
same kind), Noscitur a Sociis (known from associates), and Expressio Unius (express
mention of one thing excludes others). These rules help in construing statutes by providing
guidance on how to interpret unclear or ambiguous words or phrases based on their context
and associated words.

What are presumptions in the interpretation of statutes, and how do they guide courts?

Presumptions in the interpretation of statutes are non-statutory aids that guide courts in
construing laws. They include presumptions such as the statute not intending to change or
alter the common law, the presumption of mens rea for criminal offenses, and the
presumption of innocence for accused individuals. These presumptions help courts in
understanding legislative intent and applying the law in a manner that aligns with established
legal principles.

What is Hansard, and how does it assist in the interpretation of statutes?

544
 Hansard is the written record of proceedings and debates in Parliament, similar to a
transcript. It serves as an extrinsic aid to the interpretation of statutes. If Hansard "clearly
discloses the mischief aimed at or the legislative intention lying behind the ambiguous or
obscure words" in a statute, it becomes an admissible aid to construction. While Hansard is
not binding on the courts, it can be used to understand the legislative intent unless it is
expressed in a statute.

What are the statutory aids available to assist in understanding legislation?

The statutory aids available to assist in understanding legislation include:

(i) Interpretation and General Provisions Act (Cap. 2), which provides definitions for various
terms commonly found in written laws.
(ii) Definition sections in particular statutes, where the meaning of words used in that specific
statute is given. (iii) The context rule, which implies the definition of terms by considering
the rest of the Act as a whole.

It involves interpreting provisions within the broader statutory context to further the statutory
purposes.

How does the context rule aid in the interpretation of statutes, and what does it entail?

The context rule is a statutory aid that requires statutes to be read as a whole. It means that
provisions within an Act should not be treated as standing alone but should be interpreted in
their context as part of the Act. This rule enables interpreters to perceive how a proposition in
one part of the Act may be modified by another provision elsewhere in the Act. It promotes a
holistic approach to statutory construction, considering the broader statutory context to
further the statutory purposes.

What role do dictionaries and legal textbooks play in the interpretation of statutes?

Dictionaries and legal textbooks are extrinsic aids to the interpretation of statutes. They can
provide definitions and explanations of legal terms and concepts used in the statutes.
Dictionaries can help with a literalist construction of statutes, while legal textbooks can offer
insights into legal principles and precedents related to the subject matter of the statute.

What is the difference between civil litigation and criminal litigation in the Kenyan
court system?

Civil litigation involves disputes between private parties, where one party sues another
seeking a legal remedy, such as compensation or specific performance. The parties involved
are referred to as the Plaintiff and Defendant. On the other hand, criminal litigation involves
cases where the State (also called 'the Republic' in Kenya) prosecutes individuals accused of
committing criminal offenses. The parties in criminal litigation are the State (represented by a
Prosecutor) and the Accused.

What are the stages involved in civil litigation proceedings?

The stages involved in civil litigation proceedings are as follows:

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 Pleadings stage: Commenced by filing a Plaint or other relevant documents. The
Defendant responds with a Defence or other appropriate documents. Counter-claims and
responses may also be filed.
 Pre-Trial Stage: Parties disclose important documents and evidence they intend to rely
on and may seek discovery of documents/evidence from the other party.
 Interlocutory Applications: Parties can file various applications to enhance procedural
and substantive justice before proceeding to the substantive hearing.
 Trial Stage: Witnesses provide viva voce evidence, and the case proceeds by
examination in chief, cross-examination, and re-examination.
 Judgment/Execution stage: After the case concludes, the judicial officer issues a
judgment or ruling, and the successful party can enforce the court's decision.
 Appellate stage: The losing party may file an appeal, continuing the litigation process
until the appellate process is completed.

What are the stages involved in criminal litigation proceedings in Kenya?

The stages involved in criminal litigation proceedings in Kenya are as follows:

 Investigation stage: Conducted by investigative agencies like the Kenya Police or other
relevant bodies.
 Prosecution/Trial stage: Commences with a Charge Sheet indicating the criminal
offenses the Accused is suspected of committing. The trial involves viva voce evidence if
the Accused pleads Not Guilty.
 Judgment/Appeal stage: After the trial, the judicial officer delivers a judgment. The
convicted person has the right to appeal to higher courts.
 Sentencing/Execution stage: After conviction, the court sentences the Accused, who
serves the prescribed punishment.

How is judicial accountability ensured in the Kenyan court system?

Judicial accountability in the Kenyan court system is ensured through the process of appeal,
which allows erroneous decisions to be challenged and overturned or varied. For judicial
conduct, there are two constitutional accountability mechanisms: judicial vetting and judicial
discipline processes. The judicial vetting process is carried out by the Judges and Magistrates
Vetting Board, established under the Constitution of Kenya, 2010. The judicial discipline
process involves the Judicial Service Commission and the establishment of a judicial tribunal.

What are the advantages and disadvantages of using Alternative Dispute Resolution
(ADR) methods over court litigation?

Advantages of ADR include:

 Speedy dispute resolution
 Cost-effectiveness
 Parties have more control over the outcome and proceedings
 Flexibility in procedures and choice of processes
 Enhanced cooperation and confidentiality
 Saves court time and promotes harmonious co-existence
 Customized resolution for international disputes

Disadvantages of ADR include:

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  Effectiveness may depend on the availability of sufficient information to resolve the
dispute
 The neutral mediator or arbitrator may charge a fee for their services
 If the dispute is not resolved through ADR, parties may still face traditional court
costs
 Parties must be cautious about Statutes of Limitations while in an ADR process.

How is access to justice defined, and what does it involve?

Access to justice is defined as the right of individuals and groups to obtain a quick, effective,
and fair response to protect their rights, prevent or resolve disputes, and control the abuse of
power. It involves having a transparent and efficient process with mechanisms that are
available, affordable, and accountable. Access to justice includes both an open system of
justice and the ability to fund the costs of the case.

What are the constitutional provisions for access to justice in Kenya?

Access to justice in Kenya is guided by article 48 of the Constitution of 2010, which

ensures access to justice for all persons and requires any fee required to be reasonable and not
impede access. Article 50 of the Constitution provides that parties involved in legal
proceedings should be accorded a fair hearing. The Constitution also recognizes the judiciary
as an independent arm of the government, and judicial authority is derived from the people.

What are the drawbacks on access to justice in Kenya?

Some drawbacks on access to justice in Kenya include:

 Lack of legal literacy and publicity: Many Kenyans are not aware of their constitutional
rights and laws, hindering their ability to enforce these rights.
 Procedural technicalities: Complex court procedures in the past caused confusion and
dismissal of cases. However, the current Constitution addresses this issue by doing away
with undue regard to procedural technicalities.
 Poverty: Poverty prevents many individuals from accessing justice as they may not
afford legal representation or court fees.
 Inadequacy in infrastructure: The concentration of courts in urban areas makes it
challenging for people in rural areas to access justice. However, efforts are being made to
build more courts and decentralize certain courts.
 Insufficiency in personnel: The limited number of judicial officers caused backlog of
cases, but this issue is being addressed through increased recruitment and empowerment
of the judiciary.
 Problem of Utilization of Information Communication Technology: Technological
advancements were lacking in the judiciary, but recent investments aim to improve access
to justice through ICT.
 Delay in dispute resolution: Prolonged delays in delivering judgments and rulings have
been a common issue in the judiciary, but steps are being taken to address this, such as
setting timeframes for decisions and empowering people to report delays.

How can Kenyans improve access to justice?

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Kenyans can improve access to justice by enhancing legal literacy and public awareness,
ensuring adherence to constitutional provisions for fair hearing, and addressing issues of
poverty through legal aid and support for the indigent. Additionally, investing in
infrastructure, ICT, and sufficient personnel can help expedite dispute resolution and ensure
timely access to justice. Finally, promoting the use of alternative dispute resolution
mechanisms instead of unnecessary court litigation can conserve courts' time and resources.

What is the role of the Attorney General (AG) in Kenya?

The role of the Attorney General (AG) in Kenya is that of the government and the President's
lawyer. The AG is the principal legal adviser to the Government and represents the national
government in legal proceedings. The AG's power, however, has been limited by the 2010
constitution, and certain powers, such as the direction of public prosecutions, have been given
to the newly created office of the Director of Public Prosecutions (DPP).

What are the qualifications and powers of the Director of Public Prosecutions (DPP) in
Kenya?

The Director of Public Prosecutions (DPP) in Kenya must have at least ten years' experience
as a superior court judge, professionally qualified magistrate, distinguished academic, legal
practitioner, or in another relevant legal field. The DPP has the power to direct the Inspector-
General of the National Police Service to investigate criminal conduct. The DPP has the
authority to institute and undertake criminal proceedings, take over and continue criminal
proceedings started by others, and discontinue criminal proceedings subject to certain
conditions. The DPP is not under the direction or control of any person or authority in the
exercise of their powers or functions but must consider the public interest, administration of
justice, and prevention of abuse of the legal process.

What is the purpose and composition of the Judicial Service Commission (JSC) in
Kenya?

The Judicial Service Commission (JSC) in Kenya has been established to promote and
facilitate the independence and accountability of the judiciary and ensure efficient, effective,
and transparent administration of justice. The JSC performs various functions, including
recommending persons for judicial appointments, reviewing and making recommendations
on the conditions of service for judges and judicial staff, appointing, investigating, and
removing judicial officers and staff, and implementing programs for the education and
training of judges and judicial officers. The JSC is composed of the Chief Justice
(chairperson), judges from the Supreme Court and Court of Appeal, elected judges and
magistrates, representatives from the legal profession, a representative from the Public
Service Commission, and public representatives appointed by the President with the approval
of the National Assembly. Members of the JSC, apart from the Chief Justice and the
Attorney-General, hold office for a term of five years, with eligibility for one further term of
five years.

What is the debate about in Kenya's legal system?

The debate revolves around the proper attitude to be adopted by the Court when interpreting
the formal sources of law, with two competing philosophies: judicial activism and judicial
restraint.

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Judicial Activism is the philosophy that urges judges to creatively use their judicial power to
enforce fundamental rights and freedoms, challenge the accumulation of executive/legislative
power, counter the misuse/abuse of power by other branches of government, and safeguard
individual/minority rights against majoritarianism.

Judicial Restraint is the philosophy that urges judicial officers to exhibit humility in their
work, avoid projecting personal opinions into public interest or the common good, resist
entering into political questions, and defer to legislative and executive solutions within their
competence.

What are the main objectives of Judicial Activism?

The main objectives of Judicial Activism include enforcing fundamental rights and freedoms,
countering the accumulation of executive/legislative power, preventing the misuse/abuse of
power by other branches of government, addressing legislative paralysis, and safeguarding
individual/minority rights against majoritarianism.

What are the main objectives of Judicial Restraint?

The main objectives of Judicial Restraint include avoiding projecting personal opinions into
public interest or the common good, resisting involvement in political questions, recognizing
the political context of lawmaking, respecting the separation of powers, and deferring to
legislative and executive solutions within their competence.

Is there a consensus on whether Kenya's Constitution supports judicial activism or

judicial restraint?

No, there is no consensus on whether Kenya's Constitution supports judicial activism or

judicial restraint. The issue has sparked a vibrant debate among legal scholars and
commentators.

What are some key articles in Kenya's Constitution that relate to the debate on judicial
activism and judicial restraint?

Some key articles in Kenya's Constitution relevant to the debate include Article 20(3), Article
159(2), and Article 259. These articles may influence the Court's approach to the
interpretation of law and the exercise of judicial power.
Explain Article 20(3), Article 159(2), and Article 259.

Article 20(3) of the Kenyan Constitution deals with the enforcement of fundamental
rights and freedoms. It states:
"3. In applying a provision of the Bill of Rights, a court shall - (a) develop the law to the
extent that it does not give effect to a right or fundamental freedom; and (b) adopt the
interpretation that most favours the enforcement of a right or fundamental freedom."

Explanation: This provision empowers the courts in Kenya to interpret and apply the Bill of
Rights in a manner that ensures the maximum protection and enforcement of fundamental
rights and freedoms. It grants the judiciary the authority to develop the law if the existing
legal framework does not adequately protect a specific right or freedom. Additionally, when

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there are different interpretations possible, the courts are instructed to choose the
interpretation that provides the greatest support for upholding and enforcing the rights and
freedoms enshrined in the Constitution.

Article 159(2) of the Kenyan Constitution relates to the administration of justice and
judicial authority. It states:
"2. Justice shall be administered without undue regard to procedural technicalities, and shall
be expeditious, efficient, and without unreasonable delays."

Explanation: This article emphasizes the principles that should guide the administration of
justice in Kenya. It directs the courts to prioritize substance over procedural technicalities,
ensuring that justice is not delayed or denied due to unnecessary legal formalities. The
objective is to make the judicial process efficient and expeditious, thereby delivering justice
in a timely manner to the citizens.

Article 259 of the Kenyan Constitution concerns the interpretation of the Constitution
and the principles that guide the judiciary in this regard. It states:
"259. (1) This Constitution shall be interpreted in a manner that—
(a) promotes its purposes, values and principles;
(b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of
Rights;
(c) permits the development of the law; and
(d) contributes to good governance."

Explanation: This article sets out the guiding principles for interpreting the Kenyan
Constitution. The judiciary is directed to interpret the Constitution in a way that promotes its
overall objectives, values, and principles. It also emphasizes the advancement of the rule of
law and the protection of human rights and fundamental freedoms enshrined in the Bill of
Rights. Moreover, the provision encourages the development of the law, indicating that the
Constitution should be a living document that adapts to changing circumstances and societal
needs. Lastly, it highlights the importance of interpreting the Constitution to contribute to
good governance in the country.

These constitutional provisions play a crucial role in shaping the approach of the Kenyan
courts towards judicial activism and judicial restraint debates, as they provide the framework
within which the courts exercise their interpretative powers and deliver justice.

Who are the main supporters of judicial activism?

The main supporters of judicial activism are those who believe in the proactive use of judicial
power to protect fundamental rights, challenge the concentration of power in other branches
of government, and promote the common good and public interest.

Who are the main supporters of judicial restraint?

The main supporters of judicial restraint are those who advocate for judicial officers to
exercise humility in their work, avoid political involvement, and defer to legislative and
executive solutions within their respective competencies.

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How does judicial activism aim to protect individual and minority rights in Kenya's
context?

Judicial activism aims to protect individual and minority rights in Kenya's context by actively
intervening and making determinations perceived to be in the public interest or for the
common good, thereby preventing the infringement of these rights by other branches of
government or majority rule.

What is Nemo dat quod non habet rule and its exceptions?

The "Nemo dat quod non habet" rule is a Latin legal term that translates to "no one gives
what he does not have." It is a fundamental principle of property law that states a person can
only transfer or convey a title to property if they are the legal owner of that property. In
simpler terms, a person cannot transfer or sell property that they do not own or have a
legitimate claim to.
Exceptions to the Nemo dat rule:
 Estoppel (conduct of the owner): In certain circumstances, if the owner of the property
behaves in a way that leads others to believe someone else has the authority to transfer the
property, the legal owner may be estopped from denying the transfer.
 Sale under a common law or statutory power: There are situations where property can
be sold under specific legal powers, even if the seller is not the legal owner. For example,
a sheriff's sale or a sale by a trustee in bankruptcy.
 Sale under a voidable title: If someone acquires property from a seller who has a
voidable title (e.g., acquired the property through fraud or mistake), a good faith
purchaser may be able to obtain valid title, depending on the jurisdiction.
 Sale by a mercantile agent: In some cases, a mercantile agent (a person authorized to
sell goods on behalf of the owner) may be able to transfer good title to a buyer, even if the
agent does not own the goods personally.
 Sale by a seller in possession: If a person is in lawful possession of goods and sells them
to a third party, the buyer may acquire valid title, even if the seller is not the legal owner.
 Sale by a buyer in possession: Similar to the previous exception, if a person buys goods
from a third party who does not have legal ownership but is in possession of the goods,
the buyer may acquire valid title in certain circumstances.

It's important to note that these exceptions may vary depending on the jurisdiction and the
specific laws governing property transactions in that particular region. Additionally, the
application of these exceptions can be complex and subject to interpretation by the courts.

What is res ipsa loquitor?

Statements are to be construed just as they are.

Res ipsa loquitur is a Latin phrase that translates to "the thing speaks for itself." It is a legal
doctrine used in tort law to establish a presumption of negligence based on the circumstances
surrounding an accident or injury. Under this doctrine, the plaintiff can make a prima facie
case of negligence without providing direct evidence of the defendant's fault, as the very
nature of the incident implies that the defendant was negligent.
In simpler terms, when an accident or injury occurs under circumstances where it would not
typically happen in the absence of negligence, and the defendant has exclusive control over

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the situation, the doctrine of res ipsa loquitur allows the court or jury to infer that the
defendant's negligence caused the harm.

Key elements of the doctrine of res ipsa loquitur are:

 The event must be of a type that generally does not occur without negligence.
 The defendant must have exclusive control over the instrumentality or situation that
caused the harm.
 The plaintiff must not have contributed to the accident through their own negligence.

The doctrine is often applied in cases involving medical malpractice, product liability, and
certain types of accidents, where the cause of the injury or harm may not be immediately
apparent but is likely due to the negligence of the party in control of the situation.

It's important to note that res ipsa loquitur is not an automatic finding of negligence; rather, it
creates a presumption of negligence that the defendant can rebut by providing evidence to
show that they were not at fault or that the incident occurred for reasons beyond their control.
If the defendant successfully rebuts the presumption, the plaintiff's case may fail unless other
evidence of negligence is presented.

What is Res gestae?

Res gestae is a Latin term that translates to "things done" or "transactions." In legal contexts,
it refers to a doctrine or rule of evidence that allows certain statements or events to be
admitted in court as evidence because they are considered part of the same transaction or
occurrence.
The doctrine of res gestae allows for the admission of statements or acts that are closely
connected in time, place, and circumstances to the main event or issue being considered in a
case. These statements or acts are admitted as evidence because they help provide a fuller and
more accurate understanding of the entire context in which the main event occurred.
Key points about the doctrine of res gestae:
 Admissibility: Statements or acts that are part of the res gestae are considered relevant
and admissible as evidence in court.
 Spontaneity: The statements or acts admitted as part of res gestae are often deemed
spontaneous and not subject to manipulation or fabrication.
 Exclusion of Hearsay Rule: Res gestae statements are an exception to the hearsay rule,
which generally prohibits the admission of out-of-court statements offered for the truth of
the matter asserted.
 Scope: The scope of res gestae can vary based on the jurisdiction and the specific rules of
evidence followed in a particular legal system.
Examples of Res Gestae:
 In a criminal trial, a witness may testify about a statement made by the accused
immediately after committing a crime, as the statement may be considered part of the
res gestae and relevant to establishing guilt or innocence.
 In a car accident case, statements made by the parties involved immediately after the
accident that explain what happened and who was at fault may be admitted as part of
the res gestae.
 In a contract dispute, statements or actions made by the parties during negotiations or
at the time of signing the contract may be considered part of the res gestae and
relevant to understanding the intent and terms of the agreement.

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What is ejusdem generis rule?

 The ejusdem generis rule is a principle of statutory interpretation used when a law or
statute contains a list of specific words followed by a more general term. Under this rule,
if the general term is accompanied by specific words that form a particular category or
class, then the general term is limited in its scope and only applies to things of the same
kind or class as the specific words listed.
 In other words, when a law provides a list of specific items or categories followed by a
general term, the general term is interpreted to include only things or persons that are of
the same kind or class as those specifically listed. It helps prevent overly broad
interpretations and ensures that the intent of the legislature is adhered to when drafting the
law.
 Example: Let's consider a statute that reads: "No dogs, cats, rabbits, or other animals are
allowed in the park."
 In this case, the ejusdem generis rule would apply, and "other animals" would be
interpreted to include only animals of the same kind or class as dogs, cats, and rabbits.
Therefore, the general term "other animals" would not include animals like birds or fish,
as the list was specific to land-based pets. By applying the ejusdem generis rule, courts
can better interpret and apply statutes and ensure that the legislative intent is upheld. It is
one of several rules of statutory interpretation used to clarify the meaning of laws when
their language may be ambiguous or open to interpretation.

What is the judicial service commission?

Summary of Judicial Service Commission (JSC):

The Judicial Service Commission (JSC) in Kenya is a commission of the Judiciary,
established under Article 171 of the Constitution. Its powers and functions include the
recruitment, appointment, and disciplinary control of judges and other judicial officers. The
JSC is responsible for promoting the independence and accountability of the judiciary and
ensuring the efficient, effective, and transparent administration of justice. It is composed of
various members, including the Chief Justice, Deputy Chief Justice, Attorney General,
advocates nominated by the legal profession's regulatory body, and members appointed by
the President with the approval of the National Assembly.

What is the Committee of Revenue Allocation (CRA):

The Committee of Revenue Allocation (CRA) in Kenya is an independent constitutional
commission established under Article 215 of the Constitution. Its main role is to recommend
the basis for the equitable sharing of revenue between the national and county governments.
The CRA considers factors like population, land area, and development needs to ensure a fair
distribution of resources. It promotes fiscal decentralization, conducts research and analysis,
facilitates public participation, and monitors the implementation of revenue allocation. The
CRA aims to support devolution, improve service delivery, and enhance development
outcomes at the county level.

CONSTITUTIONAL LAW

What is the definition of a Constitution, and what are its principal functions within a
state?

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A Constitution is a document with special legal sanctity in a country that sets out the
framework and principal functions of the organs of government within the state. It also
declares the principles by which those organs must operate. The functions of a Constitution
include describing how the policy is governed, delineating state power, limiting state power
to secure fundamental human rights, ensuring checks and balances, providing participatory
and responsive governance based on ideals of democracy and good governance, and
managing the general principles of the state's functioning. In summary, a Constitution has
three worthy purposes: enabling effective organization, defining the powers of those in
charge of the organization, and protecting community members against the abuse of those
powers.

What are the classifications of Constitutions based on various criteria?

 Written v Unwritten: Written Constitutions are single documents with special legal
significance, while Unwritten Constitutions are found in scattered legislation
supplemented by conventions exercised by the people.
 Rigid v Flexible: Flexible Constitutions can be amended by the legislature following the
procedure used to amend ordinary laws, while Rigid Constitutions require more elaborate
procedures for amendment.
 Parliamentary v Presidential: Presidential Constitutions separate the office of the
president from Parliament, whereas Parliamentary Constitutions have the executive
operate from the platform of parliament.
 Unitary v Federal: Federal Constitutions have territorial units, each with its own
governmental powers, while Unitary Constitutions do not have such distinct territorial
units.
 Republican v Monarchical: Republican Constitutions have a president as the head of
state and government, while Monarchical Constitutions have a head of the royal family as
the head of state and government.
 Supreme v Subordinate: Supreme Constitutions cannot be amended by the legislature
except through special processes like referendums and constitutional conventions, while
Subordinate Constitutions can be amended by the national assembly following procedures
outlined in the constitution itself.
 Secular v Religious: Secular Constitutions don't ascribe to a particular religion, while
Religious Constitutions do, for example, by adhering to the Quran.

What are the elements or chapters present in a Constitution?

 The Sovereignty of The People and Supremacy of The Constitution
 The Republic
 Citizenship
 The Rights and Freedom of Individuals (Bill of Rights)
 Use And Control of Land and Environment
 Leadership And Integrity
 Representation of the People
 The Legislature
 The Executive
 The Judiciary
 Devolved Government
 Public Finance
 The Public Service
 The National Security

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 Commission And Independent Office
 Amendments of the Constitution
 General Provisions
 Transitional And Consequential Provisions

What are the authorities, obligations, and functions of the President of Kenya?

Authorities:
 Head of state and government
 Commander in chief of the Kenya defense forces
 Exercises the executive authority of the republic with the assistance of the deputy
president and cabinet secretaries
 Chairperson of the national security council meetings
Obligations:
 Promoting and enhancing the unity of the nation
 Promoting respect for diversity of the people and communities of Kenya
 Respecting, upholding, and safeguarding the Kenyan Constitution (president is the
custodian of the Constitution)
 Safeguarding the sovereignty of the republic
 Ensuring the protection of human rights and fundamental freedoms and the rule of
law
Functions (Article 132):
 Addresses the opening of the newly elected parliament
 Opens the parliamentary session after recess
 Addresses the nation on the measures taken and progress achieved in the realization
of national values
 Addresses special parliamentary sittings
 Directs and coordinates the functions of ministries and government departments
 Appoints senior government officers like cabinet secretaries, principal secretaries,
ambassadors, and heads of different departments with the approval of the national
assembly
 Chairs cabinet meetings
 Receives diplomatic and consular representatives
 Can declare a state of emergency if approved by the national assembly
 Appoints the chief justice, deputy chief justice, and judges of various courts with the
approval of the national assembly and according to the recommendation of the
judicial service commission
 Can declare war if approved by the national assembly
 Pardons convicted criminals through the 'prerogative of mercy' (Article 133)

What are the authorities and functions of the Deputy President of Kenya?
Authorities:
 Deputy head of state and government
Functions (Article 147):
 Performs the functions conferred by the Constitution
 Acts as the president in the absence of the president or if the president is incapacitated
 Performs duties of the president as the president may assign

What is the composition of the Cabinet in Kenya, and what are its functions?
Composition of the Cabinet:

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  The President
 The Deputy President
 14 to 22 Cabinet Secretaries
 Attorney General
 Chief of Staff
Functions of the Cabinet:
 The Cabinet is chaired by the President.
 It advises the President.
 It accounts individually and collectively to the President about the ministries they
represent or the departments they hold.
 The Attorney General advises the Cabinet on legal matters.
Functions of the Cabinet Secretaries:
 Formulate government policies (main function)
 Provide Parliament with full and regular reports concerning matters under their
control
 Answer questions related to their department in Parliament
 Attend before a committee of the National Assembly or the Senate when required and
answer questions concerning matters they are responsible for
 Represent their departments during Cabinet meetings

What are the functions of the Attorney General of Kenya?

Functions:
 The Attorney General is the principal legal advisor of the government.
 Represents the national government in court or any other legal proceedings to which
the national government is a party.
 Performs functions conferred on the office by the act of Parliament.
 Upholds and protects the rule of law.
 Defends the public interest (Article 156).

What are the functions and composition of the National Assembly and the Senate in
Kenya?
Functions of the National Assembly (Article 95):
 Makes laws that govern the country
 Amends the laws of Kenya
 Determines the location of the national revenue to the governmental and other
departments in the government
 Controls the way the government spends its money by approving expenditure
 Approves the national budget
 Vets senior civil servants before serving in offices (e.g., when the President appoints
Cabinet Secretaries, ambassadors, etc.)
 Approves the declaration of war by the President
 Discusses and finds solutions to issues of concern to the people of Kenya
 Represents the people in the constituencies
 Promotes good relationships between Kenya and other countries
 Exercises oversight over national revenue and its expenditure
Composition of the Senate (Article 96):
 47 members each elected by voters of the counties
 16 women members nominated by political parties according to their proportion of
members in the Senate
 2 members (a male and female) representing the youth

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  2 members (a male and female) representing people with disabilities
 Speaker who is an ex-official member

What is the role and composition of the County Assembly in Kenya?

Role:
 The County Assembly makes legislation to govern the county, and this legislation
must be taken to the Senate for approval.
 It exercises oversight of national revenue allocated to the county government.
Composition:
 There are 47 counties in Kenya, and each has its own County Assembly.
 The County Assembly consists of elected members, and the first business of the house
is to elect the Speaker of that house.
 The head of the county is the Governor, who is elected to serve a term of 5 years and
can be elected twice.
 The Speaker of the County Assembly is elected by members of the respective
assembly of that county.

What is sovereignty of the people in the structure of government in Kenya?

Sovereignty of the people in the structure of government in Kenya means that the citizens of
Kenya hold the ultimate power to make laws and decisions in the country. They surrender
their right to govern to the state, making the government an agent of the people. This
principle is enshrined in the preamble of the Constitution of Kenya, which acknowledges the
people's inalienable right to determine the form of governance and their full participation in
making the constitution. Article 1 of the Constitution further emphasizes that all sovereign
power belongs to the people of Kenya and shall be exercised only in accordance with the
Constitution.

How can the people exercise their sovereign power directly?

The people can exercise their sovereign power directly through a referendum, as stated in
Article 255 of the Constitution. A referendum allows the citizens to vote on major policy
decisions and laws directly, without the involvement of elected representatives. Amendment
by popular initiative through a referendum is one of the two ways in which the Kenyan
constitution may be amended.

How can the people exercise their sovereign power indirectly?

The people can exercise their sovereign power indirectly through their democratically elected
representatives. They elect the President in the national executive, the governors in the
county executive, and members of parliament to represent them in the legislature at both
national and county levels. The judiciary, while not elected by the people, derives its
authority from the people as per Article 159 and exercises judicial authority in accordance
with the Constitution.

What is the principle of supremacy of the Constitution in Kenya?

The principle of supremacy of the Constitution in Kenya means that the Constitution is the
supreme law of the Republic, and all laws and actions must conform to its provisions. No law
or action can violate the Constitution. This principle is outlined in Article 2 of the

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Constitution, which states that the Constitution binds all persons and state organs at both
levels of government. Any law inconsistent with the Constitution is void to the extent of the
inconsistency.

How does the principle of supremacy of the Constitution apply to the three arms of
government in Kenya?

The principle of supremacy of the Constitution applies to all three arms of government in
Kenya: the legislature, the executive, and the judiciary. Each arm must adhere to and respect
the Constitution as the supreme law of the land.

a. The Legislature: The National Assembly and Senate must exercise their functions in
accordance with the Constitution, as stated in Article 93. They are obligated to protect the
Constitution and promote democratic governance in the Republic, as per Article 94.
b. The Executive: The national executive, including the President and Cabinet, must uphold
and protect the Constitution, as outlined in Article 131. The President's powers are not
absolute and must be exercised in accordance with the rule of law.
c. The Judiciary: The judiciary, including all courts and independent tribunals, derives its
authority from the people and must exercise judicial authority subject to the Constitution
and the law, according to Article 160. The judiciary is the final custodian of the
Constitution and has the power to interpret it and safeguard its provisions.

What is the rule of law in the structure of government in Kenya?

The rule of law in the structure of government in Kenya means that nobody is above the law,
and the exercise of government powers must be constrained by the law. It ensures that no one
is subjected to arbitrary decisions and that the government operates within the bounds of
established legal rules and procedures. This principle is enshrined in Article 10 of the
Constitution, which includes the rule of law as one of the national values and principles of
governance.

How does the rule of law promote democracy in Kenya?

The rule of law promotes democracy in Kenya by ensuring that the government operates for
the benefit of the people and is accountable for its actions. It guarantees equal treatment and
protection of human rights for all citizens, regardless of their social status or other biases. The
rule of law allows citizens to seek redress through legal channels and ensures that the
government acts in accordance with established legal principles. It prevents arbitrary use of
power and safeguards against dictatorship.

What is democracy in the structure of government in Kenya?

Democracy in the structure of government in Kenya means a form of government in which

all people have an equal say in the decisions that affect their lives. It involves both direct and
indirect participation in proposing, developing, and passing legislation, as well as conditions
enabling free and equal political self-determination. Democracy is characterized by the
government of the people, for the people, and by the people.

How do the people exercise their democratic power in Kenya?

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The people exercise their democratic power in Kenya through elections and direct
participation in decision-making processes. They vote for their representatives in the
legislature, the President, and county governors through elections. Additionally, citizens can
participate in referendums to vote on major policy decisions and laws directly. The
democratic power is also exercised through petitions to the Parliament and involvement in
public participation processes in the legislative and decision-making procedures.

What is the principle of separation of powers in Kenya's government structure?

The principle of separation of powers in Kenya's government structure means the division of
governmental authority into three branches: the legislature, the executive, and the judiciary.
Each branch has its own distinct functions and powers, and they serve as checks and balances
on each other. This principle aims to prevent the concentration of power in one body and
ensures that no single entity can override or dominate the others.

How is the principle of separation of powers implemented in Kenya's government?

In Kenya's government, the principle of separation of powers is implemented by having

distinct institutions for the legislature, the executive, and the judiciary. Each arm operates
independently within its constitutional mandate and performs its functions without
interference from the others. The Constitution outlines the powers and functions of each
branch, and they must adhere to the limitations and guidelines set by the Constitution.
a) The Legislature: The National Assembly and the Senate are responsible for making laws
and representing the people. They have the authority to oversee the executive, including
scrutinizing budgets, approving appointments, and holding the government accountable.
b) The Executive: The executive, headed by the President, is responsible for implementing
and enforcing laws. It exercises the powers of governance and is accountable to the people
and the legislature for its actions.
c) The Judiciary: The judiciary is responsible for interpreting laws, settling disputes, and
upholding the Constitution. It is independent and must not be subject to the control or
direction of any person or authority, as per Article 160 of the Constitution.

How does constitutionalism influence Kenya's government structure?

Constitutionalism influences Kenya's government structure by establishing a system of

limited government. The government derives its power from the constitution and must
operate within the boundaries set by the constitution. The concept of constitutionalism places
limits on governmental powers and ensures the protection of human rights. It requires
government officials to act in accordance with pre-established legal rules and prevents
arbitrary rule. Constitutionalism emphasizes adherence to the rule of law, protection of
human rights, and the principle of limited government.

What is devolution?

Devolution is the process of delegating power from a central government to local or regional
administrations, allowing for more localized decision-making and governance.

Why was devolution included in Kenya's Constitution in 2010?

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Before the implementation of the 2010 Constitution in Kenya, the government's decision-
making did not adequately reflect the needs of the people in different areas of the country.
Devolution was included in the Constitution to address this issue and ensure more equitable
distribution of resources and better governance.

How is devolution structured in Kenya?

Devolution in Kenya is implemented through two levels of government: the National

Executive and the County Executive. It also involves a bicameral legislature, including the
National Assembly and the Senate at the national level, and the County Assembly at the
county level.

What are the aims of devolution in Kenya?

The aims of devolution in Kenya include promoting equitable distribution of resources,

decentralizing power for greater efficiency, promoting political accountability, enabling
citizen participation in local development, and recognizing the rights of communities to
manage their own affairs.

What are some positive results of devolution in Kenya since its implementation in 2013?

Since the implementation of devolution in 2013, there have been positive strides in Kenya,
such as increased allocation of resources to county governments for infrastructure projects,
the introduction of programs to boost the local economy, and improvements in addressing
economic, social, and cultural rights at the county level.

What are some key challenges to devolution in Kenya?

Some key challenges to devolution in Kenya include corruption at the county level,
marginalization of certain ethnic groups in resource allocation, conflicts between the county
executive and county assembly, clashes between the national and county governments, and
the need for a more robust judiciary system at the county level.

What are the three primary obligations of the state concerning human rights as
mentioned in the Kenyan Constitution?

The state has three primary obligations regarding human rights:

a. The obligation to respect: The state should give a hands-off approach and not interfere with
individuals' rights as long as they are not interfering with the rights of others.
b. The obligation to protect: The state has a positive obligation to protect and intervene to
stop third parties from interfering with other individuals' rights.
c. The obligation to fulfill: The state has a positive obligation to spend money and deploy
resources to fulfill people's rights, such as the right to health, by implementing mechanisms
to ensure an environment where people can enjoy their rights.

What are the three classifications of rights contained in the Kenyan Constitution?

The Kenyan Constitution contains three classifications of rights:

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a. Civil and political rights: These rights are capable of immediate realization and require a
negative approach by the state. They do not demand a lot of resources and include rights like
freedom of speech and freedom of movement.
b. Economic, social, and cultural rights: These rights are progressively realizable and depend
on the availability of resources. They require positive action by the state, such as providing
education, healthcare, and housing.
c. Group rights: These rights belong to a class or group of people and include entitlements
like the right to a clean and safe environment.

What were some shortcomings of the bill of rights in the repealed Constitution of
Kenya?

The bill of rights in the repealed Constitution had several shortcomings, including:
a. 'Claw-back' clauses: These clauses limited rights and defeated the essence of guaranteeing
human rights by giving rights on one hand and taking them back with limitations on the
other.
b. Limited protection: The repealed Constitution only protected traditional civil and political
rights, neglecting economic, social, and cultural rights, women's rights, children's rights, etc.
c. Enforceability: Locus standi was an issue, limiting who could go to court to enforce rights,
and there were no specialized bodies like an Ombudsman or Human Rights Commission for
enforcing rights.
d. Lack of comprehensive anti-discrimination provisions: The repealed Constitution did not
list all grounds upon which discrimination was prohibited.

What are some innovations of the 2010 Kenyan Constitution regarding the protection of
human rights?

The 2010 Kenyan Constitution introduced several innovations to protect human rights,
including:
a. Horizontal application of human rights: The Bill of Rights binds all state organs and
individuals, ensuring private citizens and organizations must comply with the provisions of
the Bill of Rights.
b. Inclusion of economic, social, and cultural rights: The Constitution provided for both civil
and political rights as well as economic, social, and cultural rights, making both sets of rights
justiciable.
c. Incorporation of international law on human rights: International law is now part of
Kenyan law, and individuals can rely on international human rights treaties ratified by Kenya
in court.
d. Expanded access to remedies: The regime of remedies has been expanded, allowing
individuals to seek a variety of remedies to enforce their rights in court.
e. Clear access to the Supreme Court: Individuals can approach the High Court, Court of
Appeal, or Supreme Court as of right in any bill of rights case.
f. Establishment of Kenya National Human Rights and Equality Commission: A
constitutional commission is now mandated to promote and protect human rights, assist the
state in complying with human rights obligations, and hear complaints of human rights
violations.
g. Clear limitation clause: The Constitution includes a clear limitation clause (Article 24) that
outlines the steps required before limiting a right.

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What are non-derogable rights, and where are they listed in the 2010 Kenyan
Constitution?
Non-derogable rights are absolute rights that cannot be interfered with in any circumstance.
In the 2010 Kenyan Constitution, non-derogable rights are listed in Article 25, which
includes rights such as freedom from torture and cruel, inhuman, or degrading treatment or
punishment, freedom from slavery or servitude, the right to a fair trial, and the right to an
order of habeas corpus. These rights cannot be limited or breached under any circumstances

What is the counter-majoritarian dilemma in Kenya, and who introduced this

concept?

The counter-majoritarian dilemma in Kenya refers to the argument that judicial review is
illegitimate as the people do not elect the judicial arm. It suggests that the judiciary, by
invalidating decisions made by elected branches such as the Legislature and the Executive, is
countering the majority will. The concept was introduced by Alexander Bickel, an American
law professor.

How does Article 1(2) of the Constitution of Kenya relate to the counter-majoritarian
dilemma?

Article 1(2) of the Constitution of Kenya states that the people may exercise their sovereign
power either directly or through their democratically elected representatives. However, the
counter-majoritarian dilemma arises when this sovereign power can be limited under Article
165(3) of the Constitution, where an aggrieved individual may approach the court, and the
end decision will be made by the judges, potentially undermining the power of the people.

What is one rationale put forward by supporters of the counter-majoritarian dilemma

in Kenya?

One rationale put forward by supporters of the counter-majoritarian dilemma is that judicial
review of executive conduct in matters of national security hinders the legitimacy conferred
on the executive by democratic or majoritarian values. They argue that identifying threats to
national security is a policy function better suited for the executive, which can see the broader
picture that confronts the administration.

What are some arguments against the counter-majoritarian dilemma in the Kenyan
context?

Some arguments against the counter-majoritarian dilemma in Kenya are as follows:

 Democracy should not be narrowly defined by procedural aspects, and the judiciary plays
a role in ensuring elected representatives fulfill their constitutional duties, thereby
furthering democracy.
 Unlike the United States, Kenya's Constitution expressly provides for judicial review,
making the issue of legitimacy different from the American context.
 The Constitution of Kenya 2010 is the supreme law, and the judiciary's power to review
decisions is necessary to enforce constitutional supremacy.
 Judicial review enhances the separation of powers and checks and balances in the
government, ensuring elected representatives adhere to their mandates.
 Kenya is a constitutional democracy, and the judiciary exercises supervisory jurisdiction
on behalf of the people to enforce their rights and constitutional promises.

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 Judges are bound by the law and operate within a framework of constitutional interpretive
methods, ensuring they are not engaged in arbitrary behavior.
 The appointment of judges by the executive and legislature reflects majoritarian policy
preferences, as elected officials favor judges who align with their ideology.
 The judiciary's effective power over the executive relies on the executive's cooperation
and obedience to court rulings, preventing complete authority usurpation.

Can the counter-majoritarian dilemma be applied universally to all democratic

societies?

The counter-majoritarian dilemma's application to democratic societies can vary based on

each country's specific constitutional framework and legal system. While some aspects may
be relevant across democracies, the dilemma's extent and significance may differ based on the
unique characteristics of each nation's government and judiciary.

What is the difference between international law and municipal law, and how do they
interact?

International law governs relationships between states and other international legal persons,
while municipal law (domestic law) governs the dealings that happen within a state's
domestic legal framework. Although everything that happens within a country like Kenya is
predominantly governed by municipal law, there is an increasing level of interaction between
international law and domestic law. International law continues to interface with the domestic
legal system, especially when treaties create certain obligations on the state within its
domestic legal framework.

What are the main theories concerning the relationship between international and
municipal law?

The two main theories are the monist theory and the dualist theory. Under the monist theory,
international law and municipal law are part of one legal continuum, and international law
prevails over municipal law in case of conflict or contradiction between the two. The state is
required to amend its domestic law to comply with the principles of international law. On the
other hand, the dualist theory considers international law and domestic law as separate legal
systems, and for international law to be applicable in the national legal framework, it must be
transformed or incorporated into domestic legislation.

How does the transformation process work under the dualist theory?

In the dualist theory, transformation is the process of converting the contents of an

international treaty into domestic legislation. The state may either convert the treaty itself and
rename it as an act of parliament or enact a distinct act of parliament that incorporates the
principles of the treaty. An example is when Kenya became party to the United Nations
Convention on the Rights of the Child (UNCRC) and enacted the Children's Act to give
effect to the provisions of the UNCRC in its domestic legal framework.

How does incorporation work under the dualist theory?

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In the dualist theory, incorporation is mostly used by courts through judicial incorporation.
Here, a judicial tribunal or a court incorporates the contents of international laws or principles
as part of its decision. This incorporation creates precedent and becomes part of the domestic
law. For instance, in the case of Mary Rono v. Jane Rono & William Rono (2002), the court
incorporated the principles of international law embodied in the African Charter on Human
Rights and the Elimination of All Forms of Discrimination Against Women into its decision.

What are the provisions in the Kenyan Constitution concerning international law?

The 2010 Kenyan Constitution explicitly incorporates customary international law as part of
the laws of Kenya under Article 2(5). It also states that treaties ratified by Kenya form part of
Kenyan law under Article 2(6). This means that all treaties ratified by Kenya are
automatically incorporated into the country's legal system. However, conflicts between
treaties and domestic laws may arise, leading to complex legal issues that need to be
addressed within the constitutional framework.

Is Kenya a monist or dualist state in terms of international law?

The classification of Kenya as strictly monist or dualist is debated. While treaties ratified by
Kenya automatically become part of Kenyan law, the ratification process involves an intense
parliamentary process, similar to transformation under the dualist theory. Some argue that
Kenya is a hybrid model state with elements of both monism and dualism, as treaties are at
par or below acts of parliament in the legal hierarchy. This means that treaties ratified by
Kenya may not automatically outrank national laws, and the constitutional framework plays a
crucial role in resolving conflicts between international and domestic law.

Why is there a need for special rules in interpreting the Constitution of Kenya 2010?

The Constitution of Kenya 2010 is the supreme law of the country, and how it was created
and enacted differs from how other laws are passed. Its interpretation can significantly impact
how it relates to other subordinate laws. Hence, there is a need for special rules in interpreting
the Constitution to ensure that its purposes, values, and principles are promoted, and the rule
of law and human rights are advanced while maintaining good governance.

What are the basic rules of statutory interpretation, and how do they apply to the
interpretation of the Kenyan Constitution?

The basic rules of statutory interpretation include the literal rule, the golden rule, and the
mischief rule. Historically, the El Mann doctrine in Kenya emphasized the literal way of
interpreting the Constitution. However, Kenya is now leaning towards a more purposive
interpretation approach, focusing on promoting the spirit and objectives of the Constitution
rather than a strict textual approach.

What are the explicit provisions in the Constitution of Kenya 2010 that relate to its
interpretation?

The Constitution provides explicit provisions for its interpretation in Article 259 and Article
20. Article 259 directs that the Constitution shall be interpreted in a manner that promotes its
purposes, values, and principles, and advances the rule of law and human rights. Article 20

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emphasizes adopting an interpretation that most favors the enforcement of rights and
freedoms in the Bill of Rights.

How do additional considerations, besides the explicit provisions, play a role in

constitutional interpretation in Kenya?

Several additional considerations are scattered throughout the Constitution that judges must
take into account in exercising their jurisdiction. These considerations include the preamble,
which contextualizes the underpinning principles of the Constitution, and various articles,
such as Article 1 (sovereignty of the people), Article 10 (national values), Article 159 (2) (e)
(protection and promotion of the Constitution's purpose and principles), Article 260
(definitions), and more.

How does the principle of harmonization play a role in interpreting the Constitution?

The principle of harmonization requires that all relevant articles of the Constitution be read
and considered together. No one particular provision should render others useless. Instead,
each provision should sustain and effectuate the significant purpose the Constitution aims to
promote. This principle ensures that the Constitution is interpreted as an integral whole.

Besides the Constitution, what other acts provide guidance on constitutional

interpretation in Kenya?

The Supreme Court Act 2011 also provides assistance in how to interpret the Constitution.
Article 3(c) of this act grants the Supreme Court near-limitless and substantially elastic
interpretative power. Additionally, while not a legal consideration, the political nature of the
Constitution-making process may lead to some inconsistencies or errors, which the court
must interpret and resolve through its constitutional duty.

What are the different forms of amendments in the constitution, and what are the
requirements for each?

There are three main forms of amendments in the constitution. First, there are amendments
that require a referendum under Article 255 of the Constitution. These provisions are key to
the general design and architecture of the constitution. Second, amendments by parliament
initiative under Article 256 of the Constitution. Third, amendments by popular initiative
under Article 257, which must be supported by at least 1 million registered voters in the
country.

Why is it essential to protect the constitution against indiscriminate amendment?

Protecting the constitution against indiscriminate amendment is crucial to maintaining public

confidence in the constitution and avoiding instability in a country. If the amendment
procedure is too simple, it can lead to frequent changes that undermine the constitution's
integrity. On the other hand, if it is too rigid, it may lead to frustration among the citizens,
potentially encouraging revolutionary measures to effect change instead of using acceptable
means.

What is the difference between rigid and flexible constitutions?

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 In rigid constitutions, special procedures or majorities are prescribed before any amendment
can be made. This can include requiring a particular majority in the legislature or approval by
both the legislature and the people in a referendum. On the other hand, flexible constitutions
do not have such special requirements, and amendments can be made like any other
legislation by the parliament, following the principle of parliamentary sovereignty.

How were amendments protected and enforced in the previous constitution of Kenya?

The previous constitution of Kenya provided for two categories of amendments: ordinary
amendments and amendments of specially entrenched provisions. Ordinary provisions could
be altered by a vote of three-quarters of all members in either house of the national assembly.
Specially entrenched provisions, which related to fundamental rights, citizenship, elections,
the senate, the structure of the regions, the judiciary, and the amendment process itself, could
not be altered except by a bill secured by three-quarters of the votes of all members on the
second and third readings in the House of Representatives and nine-tenths of the senate in
similar readings.

CURRENT AFFAIRS

Babu Owino

Charged with Section 77 of the Penal Code in Kenya deals with subversive activities.
Undermining the current government and instigating.

 Any person who does, attempts, prepares, or conspires with others to engage in acts
with a subversive intention is guilty of an offense.
 Uttering words with a subversive intention is also considered an offense.
 The term "subversive" is defined to include various actions prejudicial to public order,
security of Kenya, or administration of justice.
 Subversive activities include supporting, propagating, or advocating harmful acts or
ideas.
 It also includes inciting violence, counseling defiance of the law or lawful authority,
and associating with unlawful societies.
 Promoting racial or communal hatred is considered subversive, but certain comments
or criticisms made in good faith to address these issues are exempted.

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  Creating hatred or contempt towards public officers or armed forces in the execution
of their duties is also considered subversive, but good-faith comments to address
errors or misconduct are exempted.
 The punishment for this offense is imprisonment for a term not exceeding seven
years.
 Subsection (2) has been deleted by Act No. 5 of 2003.

Rights of Arrested Person

Article 49 of the Constitution

 Detained under reasonable conditions (proper sanitation and access to food and water)
 Right to remain silent
 Informed of the reason for arrest (Babu Owoni was not informed arrest for subversion
section 77 of the penal code )
 Right to be arraigned within 24 hours of the date of being arrested (Babu Owino was
arraigned after 48 hours). If the 24 hours falls out of ordinary court hours, then the
person should be presented in the next court day. Court days are 8am to 5pm Monday to
Friday
 Right to be released on bond or bail
 At the first court appearance informed of the charges against them

Finance Act

What is the finance act?

The Finance Act is a piece of legislation that enacts the financial proposals presented in the
Finance Bill. It outlines changes to the country's tax laws, fiscal policies, and other financial
matters. In this context, the Finance Act refers to the specific Act passed in 2023.

How did the finance act assent?

The Finance Act, 2023, received Presidential assent on 26th June 2023. Presidential assent is
the formal approval given by the President of the country for a bill to become law after it has
been passed by both houses of the legislature.

What was the purpose of the Finance Act, 2023?

 The purpose is to implement various changes to the country's financial regulations, tax
laws, and fiscal policies.The It is designed to generate revenue for the government,
address economic priorities, and influence the country's financial landscape.
 The Finance Act was implemented to update and modify existing financial regulations,
taxation policies, and fiscal measures to align with the changing economic and social
conditions in the country. Additionally, it may aim to raise revenue for funding
government programs and initiatives.
 It is also needed to pay back some of the foriegn debts

What are the Key changes implemented by the Finance Act, 2023?
 Increase in tax shortfall penalty on deliberate omission from 75% to 200%.
 Increase in VAT of fuel to 8% to 16%

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 Removal of exemption on certain goods and services used for the construction of tourism
facilities, recreational parks, convention and conference services.
 Removal of exemption on specific goods of tariff headings 3003.90.90 and 3002.90.00.
 Exempting from VAT the transfer of business as a going concern.
 Removal of exemption for capital goods used in the manufacturing sector.
 Removal of exemption for plant, machinery, and equipment used in the construction of a
plastics recycling plant.
 Removal of exemption for taxable services used exclusively in the construction of
specialized hospitals with accommodation facilities.
 Removal of 0% VAT on inputs of medicaments supplied to pharmaceutical
manufacturers in Kenya.
 Proposal to introduce a 20% deposit requirement for taxpayers appealing to the High
Court from the Tax Appeals Tribunal, refundable if the High Court decides in favor of the
taxpayer.
 Anyone who makes more than 500,000 Ksh and above is now paying a tax of 35%.

Firearms
 The legislation is the firearms act.
 Application for a firearm certificate must be made in the prescribed form to the
licensing officer, providing necessary particulars.
 The firearm certificate will be granted if the applicant has a valid reason for possessing
the firearm or ammunition, and it is deemed safe for public safety and peace.
 You must have a certificate before you women a firearm.
 Certain individuals are prohibited from obtaining a firearm certificate, including those
prohibited by law, individuals of intemperate habits or unsound mind, and those unfit to
be entrusted with a firearm.
 The firearm certificate specifies the conditions, nature, and number of firearms, as well
as authorized quantities of ammunition.
 If you have the certificate but fail to comply with the terms of the certificate, then you
are committing an offense.
 The firearm certificate remains valid for one year from the date of issue, renewable by
the licensing officer periodically.
 The licensing officer can vary the conditions of the firearm certificate by written notice.
 The firearm certificate can be revoked by the licensing officer under certain
circumstances, and the holder must surrender it upon revocation.
 Providing false information to obtain a firearm certificate is an offense.

Judge rules against mandatory sentences for sexual offenders

 The Sexual Offences Act in Kenya was enacted in 2007 to address sexual offences and
protect individuals from harm caused by unlawful sexual acts.
 The Act established mandatory minimum sentences for certain sexual offences to reflect
the seriousness of such crimes.
 On May 17, 2022, Hon. Justice Odunga of the Machakos High Court declared the
mandatory minimum sentences provided by the Sexual Offences Act as
unconstitutional. The ruling stated that these sentences limit the court's discretion in
determining appropriate penalties.
 The ruling has resulted in an influx of applications for resentencing from prisoners
previously convicted of sexual offences across various courts in Kenya.

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  Women's rights movements are concerned that this decision undermines the progress
made in combating gender-based violence with the necessary urgency.
 The Attorney General and Director of Public Prosecutions were respondents in the
Machakos High Court case. They have an obligation to safeguard and defend the
Constitution of Kenya and protect victims' rights to equality, dignity, and effective
remedy in cases of sexual violence.
 The Initiative for Strategic Litigation in Africa (ISLA) established the Feminist
Litigation Network (FLN) to promote strategic litigators advocating for women's rights.
 ISLA is collaborating with partner organizations like the Centre for Rights Education
and Awareness (CREAW) and FIDA-Kenya, along with other women's rights groups
like Equality Now, to hold the State accountable for not fulfilling its obligations in
preventing gender-based violence, protecting survivors, and prosecuting perpetrators.
 There is a call for the State to appeal the decision of the Machakos High Court and take
measures to uphold mandatory minimum sentences for sexual offences in the country.

The High Court stated that the appointment of 50 Chief Administrative Secretaries
(CASs) by President William Ruto was unconstitutional.

 The High Court stated that the appointment of 50 Chief Administrative Secretaries
(CASs) by President William Ruto was unconstitutional. The court ruled that the creation
of the additional 27 CAS positions did not adhere to the constitutional requirement of
public participation, which led to the dismissal of the entire complement of 50 CASs as
unconstitutional.

 The reason for the High Court's decision was that the government did not follow the set-
out rules and constitutional requirements in establishing the CAS positions. Specifically,
the court found that there was no proper public participation in the creation of 27 of the
CAS positions, while there was some reasonable public participation for the initial
complement of 23 CAS positions.

 The impact of this ruling is that all 50 Chief Administrative Secretaries who were
appointed by President William Ruto have been declared unconstitutional, and their
appointments have been quashed. As a result of the ruling, these CASs cannot assume
office and are barred from earning a salary, remuneration, or any benefit pending the
conclusion of the case. The ruling also highlights the need for proper adherence to
constitutional requirements and public participation processes in the establishment of
government positions to ensure their legality and constitutionality.

When did Kenya gain its independence?

12th December 1963

Who are all the president Kenya has had ?

 Jomo Kenyatta - Jaramogi Oginga Odinga , Daniel Arap Moi

 Daniel Arap Moi
 Mwai Kibaki
 Uhuru Kenyatta – William Ruto

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 William Ruto- Rigathi Gachagua

My status

Kenya Citizenship And Immigration Act of 2011

Section 38 Rights and obligations of permanent residents

A permanent resident shall—
a. have the right to enter and remain in Kenya, subject to the provisions of this Act;
b. have the right to be employed in Kenya;
c. have the right to attend educational facilities;
d. have right to own property legally in Kenya;
e. have the right to move and settle anywhere in Kenya;
f. have the right to access and enjoy social services and facilities in Kenya;
g. comply with residency obligation as may be prescribed;
h. be provided with a permanent residence certificate as prescribed under the
regulations; and
i. comply with such other conditions as shall be imposed under the Regulations.

Law on demonstrations (picketing, peaceful demonstrations

Article 37 of the Constitution on the right to Assembly, demonstration, picketing and

petition
Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket,
and to present petitions to public authorities

Public Order Act section 5 says that the police must be notified of demonstrations. Any
person intending to convene a public meeting or a public procession shall notify the
regulating officer of such intent at least three days but not more than fourteen days before the
proposed date of the public meeting or procession.

570