BUSINESS LAW

CPA SECTION 1

CS SECTION 1

STUDY TEXT
CONTENTS
1.0 Elements of the legal system
1.1 Nature, purpose and classification of law
- Meaning of law
- Nature of law
- Purpose of law
- Classification of law
- Law and morality
1.2 Sources of law
- The Constitution
- Legislation
- Substance of common law and doctrines of equity
- African customary law
- Islamic law
- Judicial precedent
- General rules of international law and ratified treaties
1.3 Administrative law
- Meaning
- Doctrine of separation of powers
- Natural justice
- Judicial control of the Executive
1.4 The court system
- Structure, composition and jurisdiction of courts
- Magistrate courts
- Courts martial
- Kadhis courts
- Environment and Land Court
- Industrial Court
- Court of Appeal
- Supreme Court
1.5 Law of persons
- Types of persons: natural person, artificial person
- Nationality, citizenship and domicile
- Unincorporated associations
- Corporations
- Co-operative societies
2.0 Law of tort
- Nature of tort
- Vicarious liability
- Strict Liability
- Negligence
- Nuisance
- Trespass
- Defamation
- Occupiers liability
- General defences in the law of tort
- Limitation of actions
3.0 Law of Contract
- Definition and nature of a contract
- Classification of contracts
 - Formation of a contract
- Terms of a contract
- Vitiating factors
- Illegal contracts
- Discharge of contract
- Remedies for breach of a contract
- Limitation of actions
4.0 Sale of goods
- Nature of the contract
- Formation of the contract
- Terms of the contract
- Transfer of property and title in goods
- Rights and duties of the parties
- Auction sales
- International contracts of sale: FAS, FOB, CIF, FCA, CPT, CIP, DAT, DAP, DDP, CFR,
DAF, DES, DDU, Ex-works and Ex-ship
5.0 Hire purchase contracts
- Nature of the hire purchase contract
- Difference between hire purchase and conditional sale/credit sale
- Formation of the hire purchase contract
- Terms of the hire purchase contract
- Rights and duties of the parties
- Termination and completion of the hire purchase contract
6.0 Indemnity and Guarantees
- Nature of the contracts
- Rights and duties of the parties
- Advantages and disadvantages of guarantee as security
- Termination of contract of guarantee
7.0 Partnership
- Nature of partnership
- Relations of partners to persons dealing with them
- Relations of partners to one another
- Rights, duties and liabilities to existing, incoming, outgoing and minor partners
- Dissolution of partnership and its consequences
8.0 Insurance
- Nature of the contract
- Formation of the contract
- Principles of insurance
- Types of insurance
9.0 Agency
- Meaning, nature and creation of agency
- Types of agents
- Rights and duties of the parties
- Authority of an agent
- Termination of agency
10.0 Negotiable instruments
- Nature and characteristics
- Negotiability and transferability
- Types: cheques, promissory notes, bills of exchange
- Rights and obligations of the parties
11.0 The Law of Property
- Definition of property
- Classification of property (real and personal, movable and immovable, tangible
- and intangible)
- Property in land: Private, Public and Community land
- Interests in land: estates, servitudes and encumbrances
- Intellectual property: plant breeder’s patents, trademarks, copyrights and
- Industrial designs
12.0 Alternative Dispute Resolutions
- Nature and problems associated with commercial litigation
- Arbitration
- Mediation
- Negotiation
13.0 Emerging issues and trends
1.2 SOURCES OF LAW
The various sources of law of Kenya are identified by:
1. Judicature Act
2. Constitution
3. Hindu Marriage and Divorce Act
4. Hindu Succession Act
5. Kadhis Court Act.
Sources identified by the Judicature Act
1. The Constitution
2. Legislation (Act of Parliament) (Statutes)
3. Delegated legislation
4. Statutes of General Application
5. Common law
6. Equity
7. Case law or (judge–made law)
8. Africa Customary law
Sources identified by the Constitution and the Kadhis Court Act
- Islamic law
Sources identified by the Hindu Marriage and Divorce Act1 and The Succession Act2
- Hindu law
Sources of law of Kenya may be classified as:
1. Written and unwritten sources
2. Principal and subsidiary sources

1) The Constitution
A Constitution is a public document, which regulates the relations between the state and its citizens
as well as the relations between the organs of the state. This is a body of the basis rules and principles
by which a society has resolved to govern itself or regulate its affairs. It contains the agreed contents
at the political system. A Constitution sets out the basic structure of government. The Constitution of
Kenya is a source of law from which all other laws derive their validity. Any law which conflicts or
is inconsistent with the Constitution is void.

Article 2 (4) of the Constitution provides '' any other law is inconsistent with the Constitution, the
Constitution shall prevail and the other law shall be to the extent of the inconsistency, he void".

Issues Addressed in the Constitution of Kenya.

The Constitution of Kenya 2010 covers the following matters:
1. That the people of Kenya are the sovereign i.e. all powers are derived from the people
2. The supremacy of the Constitution.
3. The republic. That Kenya is an independent state with an organized government.
4. Bill of rights. It contains the fundamental rights and freedoms
5. Citizenship, i.e. how one acquires and losses citizenship.
6. Leadership and integrity under chapter six of the Constitution i.e. how morals play a central
role in leadership.
7. Representation of the people.
8. Separation of powers i.e. how the three organs of the state operate under different heads.
9. This includes; the Legislature, Executive, and the Judiciary.
10. Devolved governments. There is a central and county government.
11. Matters of public finance.
12. Amendment of the Constitution.
Supremacy of the Constitution
Supremacy of the Constitution is provided for under Article 2. All other sources of law derive their
validity from the Constitution and are therefore required to be consistent with all provisions of the
constitution
 Any source of law if inconsistent with the Constitution is null and void to the extent of its
inconsistency.
 Any act or omission in contravention of the Constitution is invalid.
 The Constitution is the supreme law of the Republic and binds all persons and all Slate organs
at both levels of government.
 No person may claim or exercise Slate authority except as authorized under the Constitution.
 The validity or legality of the Constitution is not subject to challenge by or before any court
or other state organ.
 The Constitution is also supreme since it outlines the governing structure of a country and
defines the various organs of the government.
 It gives the functions of the various arms of the government and clearly indicates the
separation of powers.
 The Constitution establishes highest office in the land i.e. office of the President and grants
the occupant power as head of state and government.
 The Constitution provides the fundamental rules and freedoms of individuals and guarantees
their protection.
 It provides procedure of its amendment within itself.

2) Legislation/Acts Of Parliament
Legislation is the process of law making through Parliament or any other body specially constituted
for the purpose. Legislation can be direct or indirect.
Direct legislation is the law making process by Parliament. Law made by Parliament is known as a
statute or an Act of Parliament.
Indirect legislation is where an individual makes law through powers derived from the statute or Act,
known as an Enabling Act. This is referred to as delegated legislation e.g. by- laws made by local
authority. In Kenya, Parliament is the supreme law making body of the country as stipulated in the
Constitution. The law making process begins by Bills being passed by the National Assembly.

Bills
A Bill is a draft of a proposed Act of Parliament. When a Bill has been passed by the National
Assembly then it is presented to the President for his assent. Once the assent is given, it becomes law
and is now called an Act of Parliament or statute.
Types of Bills
Bills may be classified total
a) Public Bills
b) Private Bills
c) Private Member's Bills

 Public Bills: Public Bills deal with matters of public policy and their provisions affect the general
public. These Bills are introduced by the Minister concerned.
 Private Bills: Private Bills are those which are intended to affect or benefit some particular
person, association or corporate body.
 Private Member's Bill: Private Member's Bills is introduced by a private member of
Parliament. Such a member must move a motion seeking leave of the House to introduce the Bill.
The member is responsible of drafting his own bill.
The passing of a Bill into law
The Bill passes through the following stages to become law
 First reading
 Second reading
 Committee stage
 Reporting stage
 Third reading
 President's Assent
Before the first reading, the Bill is published in the Kenya Gazette for information purposes. All bills
must be published in the Kenya Gazette to inform the public and parliamentarians of the intended
law. As a general rule, a Bill must be published at least 14 days before introduction to the National
Assembly. However, the National Assembly Is empowered to reduce the number of days.
 First reading: Under this stage, the clerk reads out only the title of the bill. No debate or
vote takes place here. After the first reading, the date for the second reading is fixed. If the
Bill is approved at this stage, then it is printed and circulated among the members of
Parliament to enable them prepare for a debate of this Bill. This is the introductory stage of
law making.
 Second reading: This is the most important stage of the bill. At this stage the Minister or
the member in charge of the Bill explains the main feature of the Bill. A debate takes place
and the members of the house are allowed to participate in the debate.
 Committee stage: It the bill is passed at the second reading, then it moves to the committee
stage. Here the details of the various aspects contained in the bill are analysed and scrutinized
by the committee of the whole house or a select committee which consists of some selected
members of the house.
 Report Stage: After scrutiny and analysis at committee stage, the report of the same is
submitted to the house. If any amendments are made at the committee stage, the same are
debated again, then the bill moves to the third reading if approved
 Third reading: Here there are no much debates. A final vote is given after minimal debate,
and if approved, the bill is said to have been passed
 President's Assent: A bill passed by the National Assembly does not become law until the
President gives his assent. The President may refuse to give his assent if in his opinion the
bill does not serve the best interest of the people. A bill becomes a law as scan as it gets the
President’s assent.

President's Refusal to Assent to the Bill.

a. Within fourteen days after receipt of a Bill, the President shall assent to the Bill; or refer
the Bill back to Parliament for reconsideration by Parliament, noting any reservations
that the President has concerning the Bill.
b. If the President refers a Bill back for reconsideration, Parliament may, following the
appropriate procedures under this Part -amend the Bill in light of the President’s
reservations or pass the Bill a second time without amendment.
c. If Parliament amended the Bill fully accommodating the President’s reservations, the
appropriate Speaker shall re-submit it to the President for assent.
d. Parliament, after considering the President’s reservations, may pass the Bill a second time,
without amendment, or with amendments that do not fully accommodate the President’s
reservations, by a vote supported-- by two-thirds of members of the National Assembly;
an two-thirds of the delegations in the Senate, if it is a Bill that requires the approval of
the Senate.
 e. If Parliament has passed a Bill under clause (4) -- the appropriate Speaker shall within
seven days re-submit it to the President; and the President shall within seven days assent
to the Bill.
f. If the President does not assent to a Bill or refer it back within the period prescribed in
clause (1), or assent to it under (5)(b), the Bill shall be taken to have been assented to on
the expiry of that per
Statute law legislation is a principal source of law applicable throughout Kenya. It must be consistent
with the Constitution. It is the most important source of law.

Advantages of Statutes Law

a) Democratic: Parliamentary law making is the most democratic legislative process. This is
because parliaments the world over consist of representatives of the people they consult
regularly. Statute Law, therefore, is a manifestation of the will of the people.
b) Resolution of legal problems: Statute Law enables society to resolve legal problems as and
when they arise by enacting new statutes or effecting amendments to existing Law.
c) Dynamic: Statute Law enables society to keep pace with changes in other fields e.g. political,
social or economic. Parliament enacts statutes to create the necessary policies and the
regulatory framework.
d) Durability: Statute Law consists of general principles applicable at different times in different
circumstances. It has capacity to accommodate changes without requiring amendments.
e) Consistency/Uniformity: Statute Law applies indiscriminately i.e. it regulates the conduct of
all in the same manner and any exceptions affect all.
f) Adequate publication: Compared to other sources of Law, statute Law is the most widely
published in that it must be published in the Kenya Gazette as a bill and as a Law. Additionally,
it attracts media attention.
g) It is a superior source of law in that only the Constitution prevails over it.

Disadvantages of Statute Law

a) Imposition of Law: Statute Law may be imposed on the people by the dominant classes in
society. In such a case, the Law does not reflect the wishes of the citizens nor does it cater for
their interests.
b) Wishes of M.Ps: Statute Law may at times manifest the wishes and aspirations of M.Ps as
opposed to those of the citizenry.
c) Formalities: Parliamentary Law making is tied to the Constitution and the National Assembly
standing orders. The Law making process is slow and therefore unresponsive to urgent needs.
d) Bulk and technical Bills: Since parliament is not made up of experts in all fields, bulky and
technical Bills rarely receive sufficient treatment in the national assembly, their full implications
are not appreciated at the debating stage.
Functions of parliament
a) Controls government spending
b) Critical function
c) Legislative functions
How to make the law making process effective
a) M.Ps should consult constituents on a regular basis.
b) Subdivision of large constituencies.
c) Establishment of offices in constituencies for M.Ps
d) Enhance civic education
e) All Bills ought to be supported by not less than 65% of all MPs so as to become Law.
f) Bills should be widely published e.g., the Kenya Gazette should be made available to larger
segments of the society. Bills must be published in newspapers
Statutes of General Application
Kenyan Law does not define the phrase “Statutes of General Application”. However, the phrase is
used to describe certain Statutes enacted by the UK parliament to regulate the inhabitants of UK
generally. These Statutes are recognized as a source of Law of Kenya by Section 3 (1) (c) of the
Judicature Act. However, there application is restricted in that they can only be relied upon:
a) In the absence of an Act of parliament of Kenya.
b) If consistent with the provisions of the Constitution.
c) If the Statute was applicable in England on or before the 12/8/1897
d) If the circumstances of Kenya and its inhabitants permit. Examples include:
e) Infants Relief Act, 1874
f) Married Women Property Act 1882 c. Factors Act, 1889
Statutes of general application that have been repealed in the UK are still applicable in Kenya unless
repealed by the Kenyan parliament.

3) Delegated Legislation
Delegated legislation is also referred to as subsidiary (subordinate legislation). It is Law made by
parliament indirectly. Delegated legislation consists of rules, orders, regulations, notices,
proclamations etc. made by subordinate but competent bodies’ e.g.
a) Local Authorities
b) Professional bodies such as ICPA(K)
c) Statutory boards
d) Government ministers
These bodies make the laws in exercise of delegated legislative power conferred upon them by
parliament through an Enabling or Parent Act. Delegated legislation takes various forms e.g.
a) Local Authorities make by-laws applicable within their administrative area
b) Government ministries, professional bodies and others make rules, orders, regulations, notices
e.t.c.
Characteristics of delegated legislation
a) All delegated legislation is made under the express authority of an Act of Parliament.
b) Unless otherwise provided, delegated legislation must be published in the Kenya Gazette
before coming into force.
c) Unless otherwise provided, delegated legislation must be laid before parliament for approval
and parliament is empowered to declare the delegated legislation null and void by a resolution
to that effect whereupon it becomes inoperative to that effect
Why delegated legislation?
Delegated legislation is described as a “necessary evil” or a Constitutional impropriety”. This is
because it interferes with the doctrine of separation of powers which provides that the Lawmaking is
a function of the legislature. Parliament delegates Law-making powers to other persons and bodies
for various reasons:
a) Parliament is not always in session
b) Parliament is not composed of experts in all fields
c) Inadequate parliamentary time
d) Parliamentary Law making is slow and unresponsive to urgent needs. Additionally it lacks
the requisite flexibility
e) Increase in social legislation
Advantages of delegated legislation
i. Compensation of last parliamentary time: Since members of parliament are not always in
the National Assembly making Laws, the Law-making time lost is made good by the delegates
to whom legislative power has been given hence no Lawmaking time is lost.
 ii.
Speed: Law making by government Ministers, Professional bodies and other organs is faster
and therefore responsible to urgent needs.
iii. Flexibility: The procedure of Law-making by delegates e.g. Government Ministers is not tied
to rigid provisions of the Constitution or other law. The Minister enjoys the requisite flexibility
in the Law-making process. He is free to consult other persons.
iv. Technicality of subject matter: Since parliament is not composed of experts in all fields that
demand legislation, it is desirable if not inevitable to delegate Law-making powers to experts
in the respective fields e.g. Government Ministries and local authorities.
Disadvantages of delegated legislation
i. Less Democratic: Compared to statute law, delegated legislation is less democratic in that it
is not always made by representatives of the people affected by the law. E.g. rules drafted by
technical staff in a government ministry.
ii. Difficult to control - the greatest challenges posited by delegated legislation is not that it
exists but that it’s enormous growth has made it impossible for parliament to watch over it.
Neither parliament nor courts of law can effectively control delegated legislation by reason
of their inherent and operational weakness.
iii. Inadequate publicity: Compared to statute law, delegated legislation attracts minimal
publicity if any. This law is to a large extent unknown.
iv. Sub-delegation and abuse of power: Delegates upon whom law making has been delegated
by parliament often sub-delegate to other persons who make the law. Sub- delegation
compounds the problem of control and many lead to abuse of power.
v. Detailed and technical: It is contended that in certain circumstances, delegated legislation
made by experts is too technical and detailed for the ordinary person.

Unwritten Sources of Law

Unwritten sources of law apply subject to the written sources. Written sources prevail over unwritten
sources in the event of any conflicts. This is primarily because unwritten law is generally made by a
supreme law-making body. These sources include:
a. Common law
b. Equity
c. Case law
d. Islamic law
e. Hindu law
f. African Customary law.

a. Common Law
It may be described as a branch of the law of England which was developed by the ancient common
Law Courts from customs, usages and practice of the English people. These courts relied on customs
to decide cases before them thereby giving such customs the force of law. The court of Kings Bench,
Court Exchequer and the court of common pleas are credited for having developed common law.
These courts standardized and universalized customs and applied them in dispute resolution. At first,
common law was a complete system of rules both criminal and civil.
Characteristics of common law
a) Writ System.
b) Doctrine of stare decisis

 The writ system - At common law, actions or cases were commenced by a writ. There were
separate writs for separate complaints. Writs were obtained at the Royal office. A Writ stated the
nature of the compliant and commanded the police officer of the country in which the defendant
resided to ensure that the he appeared in court on the mentioned date. Often, police officers
 demanded bribes to compel the defendant to appear in court and would not compel an influential
defendant. The writ system did not recognize all possible complains and many would be plaintiffs
could not access the courts. It also lengthened the judicial process.
 Doctrine of stare decisis - Stare Decisis literally means “decision stands” or “stand by the
decision.” This is a system of administration of justice whereby previous decisions are applied in
subsequent similar cases. At common Law, a judge having once decided a case in a particular
manner had to decide all subsequent similar cases similarly. This made the common Law system
rigid. Common Law consists of decisions handed down by courts of law on the basis of customs
and usages and may be described as the English Customary Law.

Problems/shortcomings of common law

i. Writ System: Cases at common Law were commenced by a writ issued by the Royal office.
There were separate writs for different complaints. However:
 This system did not recognize all possible complaints and many would be plaintiffs had
no access to the courts
 The writ system encouraged corruption
 It lengthened the course of justice
ii. Rigidity/inflexibility: The common Law courts applied the doctrine of Stare Decisis. This
practice rendered the legal system rigid and hence unresponsive to changes.
iii. Procedural technicalities: The Common Law procedure of administration of justice was
highly technical. Common Law courts paid undue attention to minor points of procedure and
many cases were often lost on procedural matters.
iv. Delays: The administration of justice at common Law was characterized by delays.
v. Defendants often relied on standard defenses to delay the course of justice. These defenses
were referred to as essoins and included; being out by floods, being unwell or being away on
a crusade. If sickness was pleaded, the case could be adjourned for 1 year and 1 day.
vi. Non-recognition of trusts: Common Law did not recognize the trust relationship. This is an
equitable relationship whereby a party referred to as a trustee, expressly, impliedly or
constructively holds property on behalf of another known as beneficiary. At common Law
beneficiaries had no remedies against errant trustees and trustees had no enforceable rights
against beneficiaries.
vii. Inadequate remedies: Common Law courts had only one remedy to offer namely monetary
compensation or damages. They could not compel performance or restrain the same.
viii. Inadequate protection of borrowers: At common Law, a borrower who failed to honour his
contractual obligations within the contractual period of repayment would lose not only his
security but the total amount paid.

b. The Doctrines of Equity

Equity is a set of rules formulated and administered by the court of chancery before 1873 to
supplement the rules of common law. This court dealt only those cases where common law either
provided no remedy or provided a remedy which was not adequate. Equity therefore is a body of
principles constituting what is fair and right.
Origins of equity
Citizens dissatisfied with the decision of the judges of common law often made petitions to the kings
in council. The petitions were decided by the king himself or by his council. Due to much work, the
king later delegated his function to his lord chancellor (advisor to the king) a clergyman to decide the
appeals applying the rules of natural justice and morality.
The petitions to the Lord Chancellor were made on the following grounds:-
 a) The common law courts provided no remedy for certain wrongs e.g. trusts were not
recognized.
b) The remedies provided in certain situations were not satisfactory e.g. in case of breach of
contract, the only remedy available was damages, and specific performances injunctions were
not recognized.
c) The common law courts sometimes acted under pressure or influence or bribes of the other
party. The remedies granted by equity courts become known as equitable remedies.

Principles of Equity
During the early development of equity the early chancellors acted at their own discretion, but
eventually they did follow the decisions of early chancellors. But the 8th century, some firm rules of
equity were established which guided later chancellor in deciding disputes. These rules are known as
equitable maxims – which are propositions or statement of equitable rules.
The Maxims of Equity include:
i. He who seeks equity must do equity
ii. He who comes to equity must come with clean hands
iii. Equity is equality (Equality is equity)
iv. Equity looks to the intent or substance rather than the form
v. Equity regards as done that which ought to be done
vi. Equity imputes an intent to fulfil an obligation
vii. Equity acts in personam
viii. Equity will not assist a volunteer (Equity favours a purchaser for value without notice)
ix. Equity will not suffer a wrong to be without a remedy (Where there is a wrong there is a
remedy for it) Ibi jus ibi remedium
x. Equity does not act in vain
xi. Delay defeats equity
xii. Equity aids the vigilant and not the indolent (Vigilantibus non dorminentibus jurasubveniunt)
The distinction between legal and equitable remedies remains relevant to students of business law;
however, because these remedies differ to seek the proper remedy for a wrong one must know that
remedies are available.

Both Common law and Equity are recognized as sources of law of Kenya. However, only the
substance of common Law and the doctrines of equity are recognized. Their application by Kenyan
Courts is further qualified. A court of law can only rely on Common law or equity as a source of
Law:
a) In the absence of an Act of parliament.
b) If it is consistent with written law including the Constitution.
c) If it was applicable in England on 12/08/1897.
d) If the circumstances of Kenya and its inhabitants permits.
e) Subject to such qualifications as those circumstances may render necessary.

c. African Customary Law

African customary law may be described as the law based on the customs of the ethnic groups which
constitute Kenya’s indigenous or Africa population. Section 3(2) of the judicature act provides as
follows:
“The high court and all subordinate court shall be guided by African customary in civil cases
in which one or more of the parties is subject to it, or affected by it, so far is applicable and
is not repugnant to justice and morality or inconsistent with any written law, and shall decide
all such cases according to substantial justice without undue regard to technicalities of
procedure and without any delay.”
For a custom to be relied upon as law, it must have certain characteristics:
 Reasonableness; A good local custom must be reasonable i.e. it must be consistent with the
principle of justice. Whether or not a custom is reasonable is a question of facts to be
determined by the courts.
 Conformity with statute law: A local custom must be consistent with parliament made
law. This is because parliament is the principle law-making body and has Constitutional power
to disqualify the application of any rule of custom.
 Observation as of right: A good local custom is that which a society has observed openly
and as of right i.e. not by force or by stealth nor at will.
 Immemorial antiquity: A custom must have been observed since time immemorial.
 Time immemorial means that no living person can attest as to when the custom did not exist.
The application of African customary is however limited as follows:
a) The courts are to be guided by African customary law - This provision gives judge/magistrate
discretion whether to allow a particular rule of customary law to operate or not. The judge is not
bound to apply any rule of customary law and there refuse to apply it if, for example if is repugnant
to justice. In the case of Wambui Otieno – Vs – Joash Ougo and Umira Kager Clan the court of
appeal stated that the provision that courts are to be guided by African by African customary law
means that courts must have in mind African customary (unless it is repugnant to justice and
morality or inconsistent with a written law)
b) The law is applicable only in civil cases - The district magistrate’s court act 1967 sec 2 restricts
cases to which African customary law may be applied to claims involving any of the following:
 Land held under customary law
 Marriage, divorce, maintenance or payment of dowry.
 Seduction or pregnancy of an unmarried woman or girl
 Enticement of or adultery with, a married woman
 Matters affecting status, particularly the status of women, widows and children, including
guardianship, custody, adoption and legitimacy.
 Intestate succession and administration of intestate, so far as it is not governed by any
written law
c) One of the parties must be subject to it or affected by it - If the plaintiff and the defendant belong
to the some ethnic group they are said to be “subject” to the customs of the ethnic group which
could then be applied to settle the dispute e.g. a dispute between luos cannot be settled under
kikuyu customs.
d) The customary law will only be applied if it is not repugnant to justice and morality.
e) The customary law will be applied only if it is not inconsistent with any written law.

d. Islamic Law
This is the law based on the holy Koran and the teaching of the prophet Mohammed. This law is
applicable in Kenya under article 170, clause 5 of the constitution and then section 5 of the Kadhi’s
court act 1967 when it is necessary to determine question of Muslims law relating to Personal status,
Divorce Marriage and Inheritance And the parties in the case profess the Muslim religion and submit
to the jurisdiction of the kadhi’s courts.

e. Hindu Customs
It is applicable under section 5 of Hindu marriage and divorce act, 1960. Section 2 of the act defines
a custom as a rule which, having been continuously observed for a long time, has attained the force
of law among a community group or family being a rule that is certain and not unreasonable, or
opposed public policy, and in the case of a rule applicable only to a family, has not been discontinued
by the family.
f. Case Law and Judicial Precedent
In deciding cases or disputes, judges of lower courts follow the decision of higher court if a case
involving similar facts and points of law comes before them. The principle of stare decisis (Latin
meaning to stand on decided cases) or judicial precedent is a legal rule that inquires a judge hearing
a case to refer to earlier cases decided by his predecessors in order to find out if the material facts of
any of those cases before him and, in the event of such finding, to decide the case before him in the
same way as the earlier case had been decided.

Thus, principle was developed by the English courts as a mechanism for the administration of justice
which will enable judges to make decisions in an objective or standard manner instead of subjectively
and in a personalized manner. The material facts of a case and the decision made by the judge on the
basis of those facts are known as ratio decidendi of the case.

The ratio decidendi of a decided case constitutes the legal rule or principle for the future case with
similar material facts i.e. the decision is precedent to be followed when deciding such cases.
Precedents may be classified in various ways:
 Binding and persuasive precedents
 Original and declaratory precedents
 Distinguishing precedents
 Original precedents - This is a principle or proposition of law as formulated by the court. It is
the law-creating precedent.
 Declaratory Precedent - This is the application of an existing principle of law in a subsequent
similar case.
 Binding precedent - This is an earlier decision which binds the court before which it is relied
upon. E.g. a precedent of the Court of Appeal used in the High Court.
 Persuasive Precedent - This is an earlier decision relied upon in a subsequent case to persuade
court to decide the case in the same manner e.g. a High Court decision used in a Court of Appeal,
or a decision handed down by a court in another country.
 Distinguishing precedent - This is a subsequent decision of a court which effectively
distinguishes the earlier precedents. It is a precedent in its own right.
However, in certain circumstances, a court may refrain from a binding precedent. In such
circumstances, the earlier decision is ignored. This is done in the following circumstances:
 Distinguishing; This is the art of showing that the earlier decision and the subsequent case
relate to different material facts. This enables a judge to ignore the precedent.
 Change in circumstances: A judge may refrain from an earlier decision of a brother judge
if circumstances have changed so much so that its application would be ineffectual i.e. the
decision no longer reflects the prevailing circumstances.
 Per incurium: It literally means ignorance or forgetfulness. An earlier decision maybe
departed from it if the judge demonstrates that it was arrived at in ignorance or forgetfulness
of law, i.e the court did not consider all the law as it existed at the time.
 Over-rule by statures: If a precedent has been over-ruled by an Act of Parliament. It ceases
to have any legal effect as statute law prevails over case law.
 The earlier decision is inconsistent with a fundamental principle of law
 If the ratio decidendi of the previous decision is too wide or obscure.
 If the ratio decidendi relied upon is one of the many conflicting decisions of a court of co-
ordinate jurisdiction.
 Improper Conviction: In Kagwe v R. (1950), it was held that a court could refrain from a
binding precedent if its application was likely to perpetuate an incorrect, erroneous or
improper conviction in a criminal case.
Advantages of case law
i. Certainty and predictability; Stare Decisis promotes certainty in law and renders a legal
system predictable. In Dodhia’s Case 1970, the Court of Appeal was emphatic that „a system
of law requires a considerable degree of certainty.‟
ii. Uniformity and consistency: Case law enhances uniformity in the administration of justice
as like cases are decided alike.
iii. Rich in detail: stare decisisis rich in detail in that many decisions which are precedent shave
been made by courts of law.
iv. Practical: Principles or propositions of law are formulated by superior courts on the basis of
prevailing circumstances hence the law manifests such circumstances.
v. Convenience: Case law is convenient in application in that judges in subsequent cases are
not obliged to formulate the law but to apply the established principles.
vi. Flexibility: It is contended that when judges in subsequent cases attempt to distinguish earlier
decisions as to justify departing from them, this in itself renders the legal system flexible.
Disadvantages of case law
i. Rigidity: Strict application of stare decisis renders a legal system inflexible or rigid and this
generally interferes with the development of law.
ii. Bulk and complexity: Since stare decisisis based on judicial decisions and many decisions
have been made, it tends to be bulky and there is no index as to which of these decisions are
precedent. Extraction of the ratio decidendi is a complex task.
iii. Piece-meal: Law-making by courts of law is neither systematic nor comprehensive in nature.
It is incidental. Principles or propositions of law are made in bits and pieces.
iv. Artificiality in law (over-subtlety): when judges in subsequent cases attempt to distinguish
indistinguishable cases, they develop technical distractions or distinctions without a
difference. This makes law artificial and renders the legal system uncertain.
v. Backwardlooking: Judges or courts are persuaded / urged to decide all cases before them in
a manner similar to past decisions. It is contended that this practice interferes with the ability
of a judge to determine cases uninfluenced by previous decisions.

g. International Instruments
Though not listed in the Judicature Act, international law is a source of Kenyan law. The government
is party to a number of international legal instruments and Kenyans can use these as an additional
tool for the advancement of their rights. However, it only becomes enforceable in Kenya after they
have been incorporated into our domestic legal system by implementing legislation.
1.3 ADMINISTRATIVE LAW
Administrative Law can be defined as the law relating to public administration. It is the law relating
to the performance, management and execution of public affairs and duties. Administrative law is
concerned with the way in which the Government carries out its functions. Administration is the act
or process of administering, which simply means it is the act of meting out, dispensing, managing,
supervising and executing government functions.
Administrative law is the law relating to the executive branch of government. The law deals with a
variety of things e.g.
 The establishment of public authorities e.g. the city council, establishment of public bodies
and organs.
 The nature of the tasks given to various public organs and public agencies.
 The legal relationship between the public bodies themselves and also between the public
agencies and the public and between public agencies and the citizens.
Administrative Law is concerned with the means by which the powers and duties of the various
public agencies, public bodies and public institutes can be controlled. Administrative functions can
be divided into a number of broad categories namely
a. Ministerial functions; Examples of Ministerial Functions are those functions carried out or
performed by Government Ministers in their implementation of governmental policies and
programs. Examples include appointment of public officials by Ministers and the grant of
ministerial approvals and consents.
b. Administrative functions: these are the functions carried out by public officials and public
bodies in their management of various governmental bodies in their provision of services for
example educational services and in their administration of various social services as in the
case of social security services.
c. Legislative functions: These include the function of making or creating subsidiary
legislation. The responsibility of legislative functions is on the respective Ministers‟. The
duty of making by-laws is also the respective ministers.
d. Judicial functions: These primarily involve the functions of determining claims or disputes
between individuals and other bodies. A good example of administrative body that performs
judicial functions is the Industrial Court which functions as a court of law.
e. Quasi- Judicial functions: These involve the exercise of powers which are fundamentally
judicial but without the usual trappings of a court of law for example without strict
requirement of rules of evidence or the observance of rules of evidence, without strict
requirements of examination of witnesses and without other legal Technicalities. A good
example being the Liquor Licensing Court, the Land Control Boards and the Motor Vehicle
Licensing Authorities.
Functions/purposes of administrative law
a) It ensures proper dispensation of services.
b) It seeks to protect citizens from abuse of power.
c) To keep the powers of government i.e. powers of various public bodies within their legal
bounds, so as to protect citizens from their abuse. Abuse of power can arise either from malice,
bad faith or even from the complexities of the law.
d) There are duties placed in public bodies (public institutions) such that another function of the
law is to see that the duties are performed and that the public agencies can be compelled to
perform their duties where there is laxity or where they refuse or otherwise fail to do so.

Doctrine of Separation of Powers

Doctrine of separation of powers is a legal framework developed by a French jurist named
Montesquieu whose concern to contain the over-concentration of governmental powers in the hands
of one person or a body. According to Montesquieu, the only way to create a system of checks and
balances was to ensure that governmental powers were devolved. He developed the so-called classical
doctrine of separation of powers. He suggested that:
a. There should be different organs of government i.e. executive, legislature and judiciary.
b. These organs must exercise different functions. The legislature makes the law, the judiciary
interprets it and the executive administers.
c. No person should be a member of more than one organ.
According to Montesquieu, such an arrangement would ensure that no single organ exercises
unchecked power, however, this framework cannot operate in any country in its pure state, as
government does not operate in water-tight compartments. Montesquieu is credited for having
suggested that these ought to be an independent judiciary. Montesquieu’s framework is generally
effected in many Constitutions of the world.

Independence of the judiciary

The principle of independence of the judiciary is an integral part of the doctrine of separation of
powers. It means that:
i. There should be a distinct organ of government whose function is to administer justice
ii. The organ must operate impartially and in an unbiased manner. It must be disinterested as
possible in the proceedings.
iii. The organ must administer justice on the basis of facts and law without fear or favour and
without eternal influence.
Independence of the judiciary may be actualized in various ways:
i. By providing security of tenure for judicial officers.
ii. Economic independence i.e adequate financial provisions to judicial officers.
iii. Immunity from court action for actions taking place in the course of judicial proceedings.
iv. Appointment of persons of unquestionable professional and moral integrity
Independence of the judiciary is critical in that:
 It promotes the liberty of human beings by checking on the excesses of the state.
 It promotes the rule of law.

Natural Justice
Natural: Natural is being in accordance with or determined by nature i.e. based on the inherent sense
of right and wrong while Just means morally upright, correct, proper, good, merited deserved etc.
Natural Justice is the administration, maintenance, provision or observance of what is just, right,
proper, correct, morally upright, merited or deserved by virtue of the inherent nature of a person or
based on the inherent sense of right and wrong.

The principles of natural justice are rules governing procedure and conduct of administrative bodies.
They were developed by the courts in England and imported into Kenya as part of common law
principles. Principles of natural justice are implied i.e. they are not expressed in a statute; they are
supposed to apply in every case unless a statute expressly states that they will not apply.

Principles of natural justice are applicable in the absence of statutory provisions authorizing their
applicability or their observance. Unless the application of principles of natural justice is expressly
or impliedly excluded by statutory provisions these principles are always to be implied. It is to be
implied that parliament has authorised the applicability and observance of the
principles of natural justice in every case.

The Principles/Rules
Broadly the principles are two
a) Nemo Judex in causa sua – which means that procedures must be free from bias.
 b) Audi Alteram Partem – which means that no person should be condemned unheard i.e. a
person should not be denied an opportunity to be heard.
These two principles have been broken down into a number of principles or rules which are as
follows:
i. Rule against bias
ii. The right to be heard
iii. Prior notice
iv. Opportunity to be heard
v. Disclosure of information
vi. Adjournment
vii. Cross examination
viii. Giving reasons
ix. Legal representation

a. Rule Against Bias - In summary there can be bias when:

 There is some direct interest in the matter to be adjudicated; e.g. pecuniary interest;
 Where short of a direct interest there is a reasonable appearance or likelihood of bias;
 Where there is actual bias.
In R v. Hendon Rural District Council ex-parte Chorley, the court quashed the decision of a Rural
District Council allowing some residential property in Hendon to be converted into a garage and
restaurant because one of the councillors who was present at the meeting which approved the
application to convert the premises was an Estate Agent who was at the same time acting for the
owners of the properties. The Court issued Certiorari to quash the decision of the council on the
ground that the agent‟s interest in the business disqualified him from taking part in the council’s
consideration of the matter.
b. Right to be Heard - This is simply that a concerned person must be given a right to be heard.
If an administrative body fails to give a concerned person the right to be heard, whatever decision
it makes will be invalidated upon review. The case that illustrates the point is the case of David
Onyango Oloo v.The Attorney General, where the Commissioner of Prisons purported to deprive
Onyango Oloo his sentence remission to which he was entitled under the Prisons Act without
giving him an opportunity to be heard. Quashing the decision, Justice Nyarangi stated; “… there
is a presumption in the interpretation of statutes that the rules of natural justice will apply. In this
case the rule in question was the one concerning the right to be heard.”
c. Prior Notice - This rule requires that adequate prior notice be given to a person of any charge
or allegation. It simply means that if an administrative body makes a charge it has to give a person
against whom allegations have been made adequate notice before a decision is made. Prior notice
must be served on the relevant party. The notice must contain sufficient detail to enable the person
concerned to know the substance of any charge, allegation or action to be taken against him.
d. Opportunity to be Heard - There is no settled rule as to whether hearing should be oral or
written but in all cases one must be afforded a chance to present his case whether oral or written.
e. Disclosure of Information - A concerned party must be given all information which the decision
maker will rely on to make his judgment. This rule requires that all allegations and reports bearing
on a person’s case must be disclosed to that person. Failure to do so is fatal to a decision.
f. Adjournment - Natural Justice requires that a party be granted adjournment of a hearing of a
case if the exigencies require (it does not matter how guilty a person is, if exigencies arise, they
must be accorded an adjournment by the administrative body and if they are denied an
adjournment and a decision is given, the court will quash such a decision)
g. Cross Examination - An opportunity to cross-examine can only be availed if there is an oral
hearing i.e. the rule applies to cases where there is an oral hearing. Whenever there is an oral
 hearing and a party requests to cross-examine, the affected party must be granted an opportunity
to cross-examine.
h. Giving Reasons - Progressively, courts are insisting on giving reasons for a decision as a
component for natural justice. (If an administrative body denies you let’s say a licence, they must
give you the reasons why failure to which you can petition the High Court for a review).
i. Legal Representation - Where legal representation is necessary, authorized and is requested by
a party the right to legal representation must be granted. If denied, a decision may be quashed on
grounds of failure to observe the principles of natural justice.

Effect of breach of principles of natural justice

The effect of failure to comply with the rules of natural justice is that any decision or other
administrative action taken is null and void and can be invalidated by the courts. Breach of principles
of natural justice has been a good ground of judicial review.
Please note that breach of any one of the rules that we have discussed will give rise to judicial review.

Judicial review remedies

There are only three remedies that the courts can grant for judicial review
 Certiorari
 Prohibition
 Mandamus
Whether the courts will grant one of these rules depends on the circumstances.

a. Certiorari
The word Certiorari is a Latin word which simply means “to be informed”. Historically it was a royal
command or demand for information. The practice was that the sovereign who was the king or the
queen upon receiving a petition from a subject complaining of some injustice done to him would state
that he wishes to be certified of the matter and then he would order the matter to be brought up to
him. Ordering the matter to be brought up to him will include ordering that the records of the
proceedings be brought up to the sovereign. The purpose of calling up the records was in order for
the sovereign to quash any decision that has been made after acquainting himself of the matter in
other words after being certified of the matter. Currently, certiorari is an order to remove proceedings
from an administrative body or an inferior court to the High Court in order to be investigated and if
found wanting on any one of the grounds we studied including ultra vires, be quashed.
The order can issue against:
a) Administrative tribunals.
b) Inferior courts such as the industrial courts.
c) Local authorities.
d) Ministers of Government.
e) Miscellaneous public bodies exercising public functions.

b. Prohibition
The order of Prohibition is one issued by the High Court which prohibits a body (administrative
bodies) from continuing proceedings. It will also prohibit a body from continuing to carry out
decisions wrongly or wrongfully made. This order may be issued against:
a) A judicial body acting in an administrative capacity i.e. Industrial Court.
b) An administrative body performing administrative duties or against the government officials.
c) It can be issued to stop a public body from continuing proceedings that are ultra vires
d) It can also be issued to stop an administrative body from continuing to do something in excess
of jurisdiction.
e) It can also be used to stop an administration body from abusing their powers.
c. Mandamus
The order of Mandamus is derived from the Latin word “Mandare” meaning “to command”. It is a
court order issued to compel the performance of a public duty where a public body or official has
unlawfully refused, declined or otherwise failed to undertake the duty. Mandamus is issued where
there is a duty imposed by statute or common law. The duty must be a public duty. Mandamus will
not issue in respect of a duty that is of a private nature even if the body in question is a public body.
For example, where two construction companies agree to undertake some work who agree to resolve
any dispute between them by arbitration through the industrial court, the industrial court will be
performing a private function and thus the order of Mandamus cannot issue.

Judicial Control of the Executive

Judicial Review is the process through which an aggrieved person can find redress in a Court of Law.
Judicial Review forms part of administrative law because it is the most appropriate way that a party
aggrieved by an administrative body can find redress.
Judicial Review refers to the examination of the actions or inactions of public bodies by the High
Court. Judicial Review is an examination of the manner in which a decision was made or an act done
or not done. The purposes of Judicial Review from that definition are as follows:
i. To prevent excessive exercise of powers by administrative bodies and officials;
ii. To ensure that an individual is given fair treatment by Administrative authorities;
iii. To keep Administrative excesses in check and also to provide a remedy to those aggrieved as
a result of excessive exercise of power by administrative bodies.

Grounds of judicial review

Courts of law will review actions of administrative bodies in one or more of the following
circumstances:
a. When a body acts ultra vires;
b. Unreasonableness;
c. When there is jurisdictional error;
d. When there is an error of law;
e. When there is an error of fact;
f. When there is an abuse of power;
g. When irrelevant considerations governed the making of a decision;
h. When there is bias;
i. When there is unfair hearing;
j. When there is procedural flaw;
k. When there is irrationality
l. When a public official or body acts in bad faith;
m. When there is breach of the principles of natural justice.

a. Doctrine of Ultra Vires

What is ultra vires?
It simply means “beyond the powers” so that if ultra vires is the basis in which courts will interfere
or intervene on matters of public administration then the point is that courts will intervene on matters
of public administration if the administrative bodies have acted beyond the powers that have been
conferred on them.
The essence of this doctrine is that administrative bodies must act within the powers granted them by
statutes. They must also act within the requirements of common law. Administrative bodies must act
only within the powers that they have been given by the statutes. They must also recognize the limits
imposed on them by the statutes. The exercise of powers by administrative bodies often affects the
rights of citizens and for this reason it is necessary that these powers be exercised only with
accordance with the statute granting the power so that people do not suffer. Limits are placed by
statutes to ensure that powers conferred to administrative bodies do not end up causing suffering to
citizens. For these reasons any act of a public administrative body that is outside the limit of law has
no legal validity because it is Ultra Vires.
Types of ultra vires
i. Substantive Ultra Vires.
ii. Procedural Ultra Vires.

a) Substantive ultra vires - Substantive ultra vires is acting in excess of powers with regard to
matters of substance. This would include for example an administrative body acting beyond what
is authorized to do. Substantive ultra vires includes the following cases
 Exercising power in excess of statutory limits;
 Acting in excess of jurisdiction;
 Breach of the principles of natural justice; in this case failure to give notice of hearing to a
concerned party. For example would amount to breach of principles of natural justice and that
falls under substantive ultra vires
b) Procedural ultra vires - These are cases where administrative bodies fail to follow prescribed
procedure. They also include cases where an error occurs in following the procedure. Whereas
we do have procedure prescribed in statutes, there are also matters of procedure that are not in
the statutes but they are applicable under common law and this is where we find the procedural
requirements that fall under the principles of natural justice.

b. Unreasonableness
One of the things the court considers, in determining unreasonableness is whether a public body has
considered or taken into account any matter that it ought not to take into account. Another thing that
the court will consider is whether a public body has disregarded any matter that it ought to take into
account.
c. Jurisdictional Error
Jurisdiction means the scope or area in which a body is allowed to act. It includes territorial limits.
Where there is an error it means:
 That an administrative agency has acted without jurisdiction i.e. they have acted over matters
which they have no authority to act.
 They have acted within jurisdiction but have gone beyond or exceeded their limits.
This can happen:
a) When a body erroneously exercises power or authority over a matter that is outside of its
territorial limits.
b) Where a body legislates over a matter that falls outside of the matters it is authorized to
legislate over.
c) Where an administrative body declines to exercise jurisdiction to hear and decide a case or to
legislate over a matter over which it has jurisdiction to hear or decide or legislate over. (the
Administrative body has the authority to do something but it declines to do it.)
d) It may also arise when a body fails to administer a function or to carry out a duty that it has
the statutory authority to administer or to carry out.
d. Error of Law
An error of law is a condition or an act of ignorance, negligence or imprudent deviation or departure
from the law. Ignorant departure would include a situation where an administration official is
ignorant of the law. Negligence would be where an administrative body fails to do what the law
provides and in that case they have failed to look up the law to see what it provides.
This can result from a number of things:
 Failure to ascertain what the law says about a particular matter;
  Misconstruction of the law
 Misinterpretation of the law
 Blatant disregard of the law
 Misunderstanding of the law
 Misdirection on the law

e. Error of Law on the face of the Record

In all the above cases, it is usually said that there is an error of law on the face of the record. An error
of the law on face of the record is an error which may be ascertained by an examination of the record
of proceedings without recourse to any evidence. Just by looking at the record of proceedings, one
can tell that the law was not followed. The result of error of law is that the decision made and all the
acts done in error of law are invalidated upon judicial review because they are illegal.

f. Error of Fact
It is important to note that facts are integral to the making of a decision. The validity of a decision
depends on the proper appreciation and interpretation of facts. An error of fact occurs where there
has been an act or a condition of ignorance, negligence or imprudent deviation from facts. This may
occur from a number of facts:
 Where facts have not been properly appreciated;
 Where facts have not been properly interpreted;
 Where there is an incorrect finding of facts;
 Where irrational conclusions are made from facts;
 Where a decision is made without giving due regard to the factual circumstances of the case
at hand.
The effect of error of facts is that it renders a decision null and void.

g. Abuse of Power
Abuse of power includes cases where the power and authority given public bodies have:
 Been put to a wrong or improper use;
 Been used so as to injure or to damage;
 Been misused;
 Been used corruptly.
If the court finds that an administrative body has abused its power or his power, any act done or
decision made will be invalidated.

h. Improper Exercise of Discretion

An administrative body has the authority to exercise discretion whenever the limits of its statutory
authority leave it to decide between two or more causes of action or inaction. There will have to be
a statutory authorisation to do something but the statutory provisions does not completely specify
what one is authorised to do. The exercise of discretion is an important aid to the exercise of statutory
powers. Whenever circumstances give rise to the exercise of discretion:
 Discretion must be exercised properly;
 Discretion must be exercised reasonably;
 Discretion must be exercised by the proper authority only and not by a delegate;
 Discretion must be exercised without restraint;
Certain circumstances will give rise to improper exercise of discretion which includes:
 Exercising discretion for improper motive
 Where power to exercise discretion is delegated to a person who is not charged with the
responsibility in question
  Where discretion is exercised so as to serve self-interest.
i. Irrelevancy
Irrelevancy occurs in two situations:
 Where a decision making body considers a matter which it ought not to consider in arriving
at a decision; e.g. if on the basis of gender a licence is denied.
 Where an administrative body disregards something which it ought to consider in making a
decision.
j. Bias
It is a predetermined tendency to favour one outcome, one outlook or one person against another. It
involves acting partially i.e. acting favourably to one side. Whenever an allegation of bias is made, a
reviewing court will investigate whether there is an appearance of partiality. A reviewing court will
evaluate whether there is a tendency of one side to favour one person. There are certain principles
that will guide the court in determining the presence of bias.
 The Real Likelihood of Bias - Circumstances in which the court will conclude that there
was a real likelihood of bias include cases where the decision maker has an interest in the
matter under consideration. Interest may be pecuniary, interest may also be adverse.
 The Real Danger Test -This is another of the tests that the court will apply in determining
the presence or absence of bias. The consideration is whether there is a real danger that a
public official or body participating in a decision will be influenced by a personal interest in
the outcome of a case.
 Actual Bias - There are cases where in the absence of the real likelihood of bias, pecuniary
or other interests and the real danger of partiality, bias does actually occur and in this situation
the test is whether there was actual bias.
k. Unfair Hearing
Administrative bodies are bound to give a fair and proper hearing to those who come before them.
Often the statutes will prescribe the procedure for hearing indicating how concerned parties are to be
heard. In such statutory provisions, the duty to grant a fair and proper hearing may be implied. In the
absence of statutory provisions setting forth procedure for hearing, common law rules regarding fair
and proper hearing will apply. Where a public body makes a decision without due regard to prescribed
procedure or without due regard to common law principles of fair hearing, an aggrieved party will be
entitled to petition the court for review.
l. Irrationality
Irrationality is derived from the word irrational. This means that if a decision making body or an
administrative body acts irrationally, whatever that body does or whatever decision it makes can be
invalidated upon judicial review. Irrationality means conduct beyond the range of responses
reasonably open to an administrative body. In determining whether a particular act or decision is
irrational, a reviewing court will consider whether a public body has done something which a
reasonable body with the same function and confronted with the same circumstances could not do.
This is an objective test.
m. Bad Faith (Mala Fides)
If the court finds that a body made a decision in bad faith, it will be invalidated. It is rather hard to
define bad faith but it covers a wide range of circumstances including malice, corruption, fraud,
hatred and similar things. It also includes cases of vindictiveness.
1.4 THE COURT SYSTEMS
The Structure
The Courts operate two levels: Superior Courts and Subordinate Courts. The important aspects in
the Structure of Courts are:
i. The structure – The hierarchy or levels of Courts.
ii. Establishment – The composition or who presides in that Court
iii. Jurisdiction – The powers of different Courts to hear and determine disputes. Jurisdictions
are either Geographical / territorial limits of their powers or Functional powers (to hear
Original matter, Appellate matter or both matters or subject matter (whether it is civil or
criminal justice) or Pecuniary (the range of monetary or financial value of subject matter).
The figure illustrates the structure and explains the hierarch of the Courts as it is today in Kenya.
The arrow on the figure shows the hierarchy of courts in Kenya. There are two levels of courts
Superior Court (consist of Supreme Court, Court of Appeal and High Court) and Subordinate Courts
( Resident Magistrate Court, Kadhi Courts, Court Martials, Tribunals, District Magistrate Courts
Classes 1st, 2nd and 3rd.) The arrows show flow of appeal from one level to the next.
The arrows represent flow of appeals in both civil and criminal appeals except criminal appeals from
District Magistrate class III which go to Resident Magistrates courts. District Magistrate courts are
situated in all the districts except of District Magistrate Class III which in some sparsely populated
Districts especially North Eastern Province Kenya where their powers have been delegated by the
Chief Justice to the District Officers through notices in the Kenya Gazette. This structure of the courts
is based on the provisions of the Constitution, the Magistrates Court Act (Cap. 10), the Kadhis Court
Act (Cap. 11) and the Armed Forces Act (Cap. 199) Laws of Kenya.

Magistrate Court
Article 169 (1a) of the constitution of Kenya 2010 creates the Magistrate court. This is where majority
of the judiciaries’ cases are heard. Magistrate courts are generally located in every district in Kenya.
The presiding judicial officer in Magistrate court could be a Chief Magistrate, Senior Principal
Magistrate, Senior Resident Magistrate, Resident Magistrate or Principle Magistrate. Their authorities
vary in administrative responsibility and range of fining and sentencing abilities. The Judicature Act
is the statute passed by parliament detailing the varying powers and jurisdiction of Magistrates and
Judges.

Courts Martial
Article 169 1,c of the constitution of Kenya 2010 creates the Courts Martial. this is the military court
where matters involving members of the Kenya Defense Forces are heard. Appeals from this court
are heard by the High Court.

Khadhi Court
Article 169 1,b of the Constitution of Kenya 2010 creates the Kadhi court. This is a court that hears
civil matters relating to Islamic law. The parties involved must all be followers of Islam and all must
agree that the matter to be decided under Islamic law. The matter cannot be criminal in nature. The
matter must be civil in nature e.g. Divorce, succession etc. The court is headed by a Chief Kadhi and
parliament is given the authority to enact laws describing the guidelines, qualification and jurisdiction
of this court. Appeals from Kadhi Court are heard by the High Court.

Tribunals
Tribunals are bodies established by Acts of Parliament to exercise judicial or quasi-judicial
functions. They supplement ordinary courts in the administration of justice. Tribunals, however, do
not have penal jurisdiction. Tribunals, like the courts, have to respect the Bill of Rights in their
decisions and not be repugnant to justice and morality or be inconsistent with the Constitution or
other laws of the land. Most tribunals are subject to the supervision of the High Court.

Administration Tribunals in Kenya

They are set up by law to adjudicate disputes that arise out of the statutes creating them. They deal
with the administration and enforcement of the Act concerned. For example, the Rent Tribunal
determines questions arising out of the Administration and Rent Restriction Act and the Business
Rent Tribunal, which deal with con-trolled commercial tenancy.

Tribunals, like the courts, have to respect the Bill of Rights in their decisions and not be repugnant
to justice and morality or be inconsistent with the Constitution or other laws of the land. Most
tribunals are subject to the supervision of the High Court.
Inquiry Tribunals in Kenya
They are full-scale inquiries dealing with urgent matters of public importance. For example, an
inquiry tribunal may be set up to investigate corruption, mishandling of issues and improper conduct
of public officers.

Domestic Tribunals in Kenya

They are set up by private organizations for administration purpose, settling disputes and exercising
disciplinary control of members, professional group. Jurisdiction is therefore, contractual and limited
by rules or regulations, which comprise the terms of the contract. Other tribunals include: Energy,
Environmental, Teachers Service, Land Dispute, Capital Markets, Water Appeal and Cooperative,
among others.

The High Court

Establishment: The High Court is established under Article 165 and it consists of a number of judges
to be prescribed by an Act of Parliament. The Court is organized and administered in the manner
prescribed by an Act of Parliament. The Court has a Principal Judge, who is elected by the judges of
the High Court from among themselves.
Composition: Ordinarily, the High Court is duly constituted by one Judge sitting alone. However
there are instances where two or more High Court Judges may be required to determine certain kinds
of cases.
Appointment of Judges: Are appointed by the President in accordance with the advice of Judicial
Service Commission. They are laid down special qualifications required of a person to be eligible for
appointment as a Judge, namely:
 He / she is or has been a Judge of a Court having unlimited jurisdiction in civil and criminal
matters in some part of the Commonwealth or in the Republic of Ireland or a court having
jurisdiction in appeals from such a Court or;
 He /she is an Advocate of the High Court of not less than seven years standing or;
 He /she holds and has held for a period of or periods amounting in aggregate to not less than
seven years, one or other of the qualifications specified in Section 12 of the Advocates Act.
Jurisdiction:
 The High Court has unlimited original jurisdiction in criminal and civil matters.
 The High Court has jurisdiction to determine the question whether a right or fundamental
freedom in the Bill of Rights has been denied, violated, infringed or threatened.
 The High Court has jurisdiction to hear an appeal from a decision of a tribunal appointed
under the Constitution or national legislation to consider the removal of a person from office,
other than a tribunal appointed under Article 144.
 The High Court has jurisdiction to hear any question respecting the interpretation of this
Constitution including the determination of: the question whether any law is inconsistent with
or in contravention of the Constitution, the question whether anything said to be done under
the authority of the Constitution or of any law is inconsistent with, or in contravention of the
Constitution, any matter relating to constitutional powers of State organs in respect of county
governments and any matter relating to the constitutional relationship between the levels of
government, and a question relating to conflict of laws under Article 191;any other
jurisdiction, original or appellate, conferred on it by legislation.
 The High Court does not have jurisdiction in respect of matters reserved for the exclusive
 jurisdiction of the Supreme Court under this Constitution or falling within the jurisdiction of
the courts contemplated in Article 162 (2).
 The High Court has supervisory jurisdiction over the subordinate courts and over any person,
body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
 Also being a Superior court of record means that the decisions of the High Court as precedents,
are binding on the subordinate courts by the doctrine of stare decisis.
 Although High Court has unlimited original jurisdiction in civil and criminal cases in actual
practice, it will hear those criminal cases which cannot be tried by the subordinate courts i.e.
murder and treason whereas in civil cases, it has jurisdiction where the value of the subject
matter, in dispute exceeds Kshs. 500,000.00. The High Court has power to pass any sentence
authorized by law.
 In addition to the ordinary civil and criminal jurisdiction or the High Court, there are other
matters, which can only be heard by the High Court. Thus, the High Court enjoys special
powers and jurisdiction in the following matters as conferred to it by the constitution and
other legislations some of which are given hereinafter:-

High Court Special Powers

a) Supervisory Jurisdiction - The Constitution confers specific, powers on the High Court to
exercise supervisory jurisdiction in any civil and criminal proceedings before subordinate courts
and may make such orders, issue such writs and give such directions as may consider appropriate
for the purpose of ensuring that justice is duly administered by such courts. This includes the
power of the High Court to transfer proceedings from one court to the other. To invoke the
supervisory jurisdiction of the High Court a person must have exhausted all other available
remedies and right of appeal. In exercise of its supervisory powers under judicial review, the high
court may issue any of the prerogative orders of:
 Mandamus – The literal meaning of mandamus is “we command”. This is an Order issued
by the High Court to any person or body commanding him or them to perform a public duty
imposed by law or state. The order is available to compel administrative tribunals to do their
duty e.g. to compel a licensing board to issue a license on application of him who has met the
prescribed criteria.
 Certiorari – The term means to “be informed”. This is an Order issued by the High Court
directed at an inferior court body exercising judicial or quasi-judicial functions to have the
records of the proceedings presented to the High Court for the purposes: To Secure an
impartial trial, To review an excess of jurisdiction, To challenge an ultra vires act, To correct
errors of law on the face of the record. To quash a judicial decision made against the rules of
natural justice. An order of certiorari will be wherever anybody of persons having legal
authority to determine questions affecting the rights and having a duty to act judicially, acts
in excess of their legal authority. It therefore serves to quash what has been done irregularly.
 Prohibition – This is an order issued by the High Court to prevent an inferior court or
 tribunal from hearing or continuing to hear a case either In excess of its jurisdiction or in
violation of the rules of natural justice.
 Writ of Habeas corpus – Harbeas corpos means „produce the body‟, dead or alive. This
order is issued where the personal liberty of a person is curtailed by arrest and confinement
without legal justification. By issuing this order, the High Court calls upon the person holding
the body to answer by what authority are they continuing to withhold the individual and with
the aims at securing release of such persons held apparently without legal justification.
b) Interpretation of the constitution - The Constitution provides that where any question as to
the interpretation of the constitution arises in any proceedings in any subordinate court, and the
court is of the opinion that the question involves a substantial question of law, the court may, and
shall if any party to the proceedings so requests, refer the question to the High Court. The High
Court shall be composed of an uneven number of judges, not being less than three when it
determines the constitutional question referred to it. The decision of the High Court is binding on
the Court that referred the question to the High Court and it must dispose of the case in accordance
with the High Court’s decision.
c) Admiralty Jurisdiction - Section 4 of the Judicature Act Chapter 8 (1967) provides that the
High Court will act as a court of admiralty and will decide “matters arising on the high seas or in
territorial waters or upon any lake or other navigable inland waters in Kenya”. The law applicable
to be exercised “the conformity with international law and the comity of nations.
d) Election jurisdiction - Under the National Assembly and Presidential Election Act, the High
court has special powers to hear and determine disputes arising from the national electoral
process. The High Court may make an order as it deems fit, including the nullification of the
election results upon hearing of a petition presented to it by a voter or loser in the election.
e) Succession/Probate Jurisdiction - The Probate Division of the High court has jurisdiction to
hear any application and determine any dispute and pronounce such decree and issue such orders
as my be expedient in inheritance matters e.g. the High Court may issue probate i.e. a person has
been validly appointed by a will to administer the property of the deceased.
f) Matrimonial Cases - The court exercises jurisdiction in divorce matters. In exercise of its
matrimonial jurisdiction, the High Court may issue orders for:
o Dissolution of marriage.
o Nullity of marriage.
o Separation and maintenance (alimony).
o Custody, adoption and guardianship of infants
o Spousal Property and financial adjustments etc
g) Other powers
 To protect and enforce Fundamental rights and Freedoms of individuals which are set out in
Chapter Four of the Constitution also otherwise referred to as Bill of Rights.
 To hear and determine Bankruptcy proceedings.
 To supervise winding up of dissolved companies.

Environment and Land Court

An Act of Parliament to give effect to Article 162(2)(b) of the Constitution; to establish a superior
court to hear and determine disputes relating to the environment and the use and occupation of, and
title to, land, and to make provision for its jurisdiction functions and powers, and for connected
purposes
Industrial Court of Kenya
The Industrial court is established in pursuant of Article 162 (2) (a) of the Constitution of Kenya
2010, for the purpose of settling employment and Industrial relations disputes and the furtherance,
securing and maintenance of good employment and labour relations in Kenya. The Industrial Court
is a superior court of record with the status of the High Court and shall and exercise jurisdiction
throughout Kenya.
Jurisdiction
The court shall have exclusive original and appellate jurisdiction to hear and determine all disputes
referred to it in accordance with Article 162 (2) of the Constitution and the Provisions of the Industrial
Court Act or any other written Law which extends jurisdiction to the court relating to employment
and Labour relations including:-
a. Disputes relating to or arising out of employment between an employer and an employee
b. Disputes between an employer and a trade union.
c. Disputes between an employer’s organization and a trade union’s organization
d. Disputes between trade unions,
e. Disputes between employer organisations,
f. Disputes between an employer’s organizations,
g. Disputes between an employer’s organization and trade union
h. Disputes between a trade union and a member thereof
i. Disputes between an employer’s organisation or a federation and a member thereof
 j. Disputes concerning the registration and election of trade union officials
k. Disputes relating to the registration and enforcement of collective agreements.
In exercise of its jurisdiction, the court shall have power to make any of the following orders:-
a) Interim preservation orders including injunctions in cases of urgency
b) A prohibitory order
c) An order for specific performance
d) A declaratory order
e) An award of compensation in any circumstances contemplated under the Industrial Court Act
or any written Law.
f) An award of damages in any circumstances contemplated under the Industrial Court Act or
any written Law.
g) An order for reinstatement of any employee within three years of dismissal, subject to such
conditions as the court thinks fit to impose under circumstances contemplated under any
written Law.
h) Any other appropriate relief as the court may deem fit to grant.
Appellate Jurisdiction -The court shall have appellate jurisdiction to hear and determine appeals
from-
 Decisions of the Registrar of trade unions
 Any other court, local tribunal or commission and prescribed under any Written Law.
Composition of the court
The court shall consist of;
 The Principal Judge; and
 Such number of Judges as the President may, acting on the recommendations of the Judicial
Service Commission, appoint
The Principal Judge shall be elected in accordance with the procedure prescribed in Article 165 (2)
of the Constitution. The Principal Judge shall hold office for a term of not more than five years and
shall be eligible for re-election for one further term of five years. The Principal Judge shall have
supervisory powers over the Court and shall be answerable to the Chief Justice.
In the absence of the Principal Judge or in the event of a vacancy in the office of the Principle Judge,
the Judges of the Court may elect any other Judge to have and exercise and perform the powers and
functions of the Principal Judge, and who shall be deemed to be the Principle Judge.

The Court of Appeal

Establishment: The Court of Appeal is established under Article164 of the Constitution of Kenya
2010.
Composition: The Court of Appeal consists of a number of judges, being not fewer than 12 (twelve),
as may be prescribed by an Act of Parliament and the Court is to be organized and administered in
the manner prescribed by an Act of Parliament. The Court comprises of a President of the Court of
Appeal who is elected by the judges of the Court of Appeal from among themselves. The Court of
Appeal Judges retire at the age of 74 years.
Jurisdiction: The Court of Appeal is a superior court of record therefore it sets precedents. It has
limited original jurisdiction. It was created to hear appeals from the High court. The only moment
the Court Appeal can have original jurisdiction is in punishment for contempt of court, and when
stating execution of orders of the High Court. Procedure: The practice and procedure of the court of
appeal are regulated by the rules of court made by the Rules Committee constituted under the
Appellate Jurisdiction Act (Cap. 9). The Act provides that an uneven number of at least three judges
shall sit for the determination of any matter by the court. The decision of the court shall be according
to the opinion of a majority of the judges who sat for the purposes of determining that matter.
The court has powers to:
 Determine a case finally
  Order for a trial
 Order for a re-trial.
 Frame issues for the determination of the High Court.
 Receive additional evidence or order that it be taken by another court.

The Supreme Court

The Supreme Court of Kenya is established under Article 163 of the Constitution of Kenya. It
comprises of 7 (Seven) Judges: the Chief Justice, who is the president of the Court, the Deputy Chief
Justice, who is the deputy to the Chief Justice and the vice-president of the court and five other judges.

The Supreme Court is properly constituted for purposes of its proceedings when it has a composition
of five judges and has exclusive original jurisdiction to hear and determine disputes relating to the
elections to the office of President arising under Article 140 and subject to clause (4) and (5) of
Article 163 of the Constitution, appellate jurisdiction to hear and determine appeals from the Court
of Appeal and any other court or tribunal as prescribed by national legislation.

Appeals from the Court of Appeal to the Supreme Court are as a matter of right in any case involving
the interpretation or application of this Constitution and in any other case in which the Supreme
Court, or the Court of Appeal, certifies that a matter of general public importance is involved, subject
to clause (5).
The Supreme Court may review a certification by the Court of Appeal and either affirms, vary or
overturn it. The Supreme Court may give an advisory opinion at the request of the national
government, any State organ, or any county government with respect to any matter concerning county
government. All courts, other than the Supreme Court, are bound by the decisions of the Supreme
Court.

Judicial Service Commission

Establishment: It is established by Article 171 of the Constitution.
Composition/Membership - Under Article 171 (2) or the Act, the Judicial Service Commission
shall consist of:
a) The Chief Justice, who shall be the chairperson of the Commission
b) One Supreme Court judge elected by the judges of the Supreme Court;
c) One Court of Appeal judge elected by the judges of the Court of Appeal;
d) One High Court judge and one magistrate, one a woman and one a man, elected by the
members of the association of judges and magistrates;
e) The Attorney-General;
f) No advocates, one a woman and one a man, each of whom has at least fifteen years experience,
elected by the members of the statutory body responsible for the professional mutilation of
advocates;
g) One person nominated by the Public Service Commission; and
h) One woman and one man to represent the public, not being lawyers, appointed by the President
with the approval of the National Assembly.
 The chief Registrar of the Judiciary shall be the Secretary to the Commission,
 Members at the Commission, apart tram the Chief Justice and the Attorney-General, shall hold
office, provided that they remain qualified; for a term of 6 years and shall be eligible to be
nominated for one further term of five years.

Powers of the Commission

a. To act independently, must be under the control or directions of any person or authority.
b. To make rules to regulate its procedure
 c. To delegate powers to its members (judges)
d. To act not withstanding a vacancy in its membership.
e. To confer powers and impose duties on public service with the president's consent.

Functions of the Judicial Service Commission

Under Article 72 of the Constitution, the Judicial Service Commission shall promote and facilitate
the independence and accountability of the judiciary and the efficient, effective and transparent
administration of justice and shall:
a) Recommend to the President Persons for appointment as judges;
b) Review and make recommendations on the conditions of service of-
 Judges and judicial officers, other than their remuneration
 The staff of the Judiciary
c) Appoint, receive complaints against, investigate and remove from office or otherwise
discipline registrars, magistrates, other judicial officers and other staff of the Judiciary, in the
manner prescribed by an Act of Parliament;
d) Prepare and implement programmes tar the continuing education and training of judges and
judicial officers; and
e) Advise the national government on improving the efficiency of the administration of justice.
In the performance of its functions, the Commission shall be guided by the following:-
 Competitiveness and transparent processes of appointment of judicial officers and other
staff of the judiciary
 The promotion of gender equality.
Generally, the JSC serves the following functions as well:
a. Administration: It is the principal administrative organ of the judiciary i.e. administers the
judicial department
b. Advisory: It advises the President on the appointment of Judges of superior courts. Its vote is
purely advisory.
c. Appointment: It engages-Magistrates, High Court Registrars, Kadhis and other judicial staff
e.g. personnel, officers. clerks etc. –
d. Discipline: It disciplines Magistrates, Registrars, Kadhis and other staff of the department.

The Attorney General

Establishment: This office is established by Article 156 (1) of the constitution. It is an office in the
public service.
Appointment: Under Article 156 (2), the Attorney-General shall be nominated by the President
and, with the approval of the National Assembly, appointed by the President.
Under Article 156 (3) the qualifications for appointment as Attorney-General are the same as for
appointment to the office of Chief Justice, i.e.:
 At least 15 years experience as a superior court judge; or
 At least 15 years' experience as a distinguished academic, judicial officer, legal practitioner
or such experience in other relevant fecal field

Powers of the Attorney General

Under Article 156, the Attorney General
a. Is the principal legal adviser to the Government;
b. Shall represent the national government in court or in any other legal proceedings to which
the national government is a party, other than criminal proceedings; and
c. Shall perform any other functions conferred on the office by an Act of Parliament or by the
President.
 d. The Attorney-General shall have authority, with the leave of the court, to appear as a friend
of the court (amicus curie) in any civil proceedings to which the Government is not a party.
e. He is an ex-officio member of the National Assembly.
f. He drafts all government bills.
g. He is the head of the bar i.e. most senior lawyer
h. He represents the state in all civil cases.
i. He services the legal needs of other government department
j. He is a member of the Judicial service Commission
k. He sits in the Cabinet
l. He is a member Of the Committee of the prerogative of mercy
m. The Attorney-General shall promote, protect and uphold The rule of law and defend the public
interest.
Advocates
Definition: Under section 2(1) of the interpretation and General Provisions Act Cap 2 and the
Advocates Act 1989 an advocate is any person whose name has been duly entered as an advocate in
the Roll of Advocates. He has also been defined as a person who has been admitted as an advocate
by: Ire Chief Justice. The law relating to Advocates is contained in the Advocates Act 1989

Qualifications for admission

To qualify for admission as an advocate, one must:
a. Be a citizen of Kenya
b. Hold a law degree from a recognized University
c. Satisfy the Council of Legal Education examination requirements.
Procedure for Admission
a. A formal petition must be made to The chief Justice through the high court register.
b. Copies of the petition must be sent to the Council of legal education and the Law society of
Kenya
c. Notice of the petition must be given.
d. The petition must be published in the Kenya Gazette
e. The Chief Justice hears the petition in chambers.
f. The petitioner than takes the oath of office in open court
g. The admitted person then signs the roll of Advocates.
Duties of an Advocate
a. Duty to the court: As an officer of the court, an advocate is bound to assist in the
administration of justice by urging the law as it is.
b. Duly of client: An advocate owes a legal duty of care to his clients. He must urge his client's
case in the best manner possible.
c. Duty to his profession: As a member of a profession, an advocate is bound to maintain the
highest possible standards of conduct, integrity by observing the law and other rules.
d. Duty to society: As a member of the society, he is bound to assisting its social, political and
economic development.

The Law Society Of Kenya

Establishment: It is established by section 3 of the Law Society of Kenya Act, cap 18 as a body
corporate by the name Law Society of Kenya. It has perpetual succession, can sue or be sued and has
a common seal.
Composition/Membership - It consists of:
a. Practicing advocates
b. Non-practicing advocates
c. Special membership
 d. Honorary membership
The affairs of the society are managed by a council elected by the members.

Objectives of the Law Society of Kenya

Under section 4 of the Law Society of Kenya Act, its objects include:
a. To maintain and improve the standards of conduct and learning of the legal profession.
b. To facilitate acquisition of legal knowledge by members and others.
c. To assist the government and the courts in all matters relating to legal and administration of
the law.
d. To represent, protect and assist members of the legal profession in relation to conditions of
practice of law
e. To assist and protect members of the public in all matters touching or incidental to law
f. To raise or borrow money for its purposes
g. To acquire land and other property
1.5 LAW OF PERSONS
A person is defined is defined as an entity or being which is recognized by law as having certain
defined rights and obligations. Such an entity or being is said to be a legal person. Legal persons are
divided into two namely;
a) Artificial persons
b) Natural persons
An entity which` is recognized as a person is said to have a legal personality. i.e. it has attributes
which are recognized by law as constituting a person. Examples include human beings (natural
persons) and corporations (artificial persons) .These have legal personality to the extent that they
each have their own rights and obligations recognized by law

Artificial Persons
Artificial persons may be corporations or unincorporated associations.
a) Corporations
A corporation may be defined as an association of persons binded together for sole particular object,
usually carry on business with a few of profit. If other words a corporation is an artificial person
created with by law with capital divided into transferable shares and with limited or unlimited liability
possessing a common seal and perpetual succession. The corporation has, therefore, ` legal
personality of its own distinct from that of its members. The individual members have rights and
liabilities of their own apart from those of the corporation. The corporate body is different in that it
has perpetual succession, it never dies and has a common seal by which to authenticate its acts. The
members may change, but the corporate body does not.
Types of Corporation
There are basically two types of corporation: corporation sole and corporation aggregate. The two
differ both in the manner of their creation as well as their membership and also in their operation
- Corporation sole - Corporation sole is one which consists of one human member at a time,
such member being the holder of an office which is held in succession by one person at a
time. Some corporations’ sole are creatures of the common law, e.g. the office of a bishop.
There cannot be more than one bishop in a `diocese at the same time and when a particular
bishop dies as an individual, his office never dies and continues in existence with another
bishop as a successor. Other corporation sole are created by constitution or any Act of
Parliament e.g. the Office of the President or the Office of the Pubic Trustee.
- Corporation Aggregate - Most corporations are corporations aggregate. These consist of
two or more members at the same tire. Basically, there are two types of corporation aggregate
operating in Kenya. These are statutory corporations and registered companies.
Creation of Corporations
A corporation can be created in the following ways:
i. By act of parliament - The corporations can be created by the Act of Parliament in Kenya.
The state corporations are% created by this method. The main examples of such corporations
are: Kenya railways, Kenya airways, Kenya Meat Commission, Pyrethrum Board of Kenya,
Coffee Board of Kenya e.g. Such corporations owe their legal existence to a statue. A statue
creating the corporation gives it a name, stipulates its composition, and prescribes its powers
and duties. The powers of these corporations are limited to those which are expressly
conferred by the acts. The powers of statutory corporation can be extended or limited by
statutes. These can be also dissolved by statutes. The statutory corporations are legal persons.
They can sue and be sued. They can buy and sell property.
ii. By registration under companies act - The registered companies are created by
registration under the companies act. These are also know as limited company comes into
existence by complying with the provision of the companies act (cap 486) a limited company
may either be private or public limited company. A private limited company can be registered
 by two or more persons but it is not allowed to call upon the public for funds in the form of
shares or debentures. A public limited company can be registered by seven or more persons
and it can offer its shares to the general public freely.

b) Unincorporated Associations
An incorporated association is one which has no corporate status is one which has no corporate status
i.e. it has no legal personality and cannot , therefore, own property or enter or enter into contracts or
sue or be sued in its own name. Such associations include clubs, societies, trade unions, partnerships
e.t.c. These associations consist of groups of individuals. The property owned by such associations
is regarded as the joint property of all members although this property is held on the behalf of all
members by trustees. Any contract entered into by a member on behalf of the association is regarded
as the contract of that member. If a committee has committed a tort then the committee members are
responsible. They include
i. Partnerships - Partnerships are incorporated associations. In Kenya all partnership are
formed in accordance with partnership act (Cap 29). Section 3(1) of this act defines
partnership as the relationship which subsists between in common with a view of profit. In a
partnership business, two or more persons jointly run a business. The liability of the individual
partner is unlimited unless the partnership agreement provides for any limitation. A
partnership consists of not more than twenty persons except in certain cases e.g. practicing
solicitors, professions accountant and members of the stock exchange where this figure may
be exceeded. Normally, the number of partners in a partnership business varies from two to
five. In the case of banking business, the number of partners is limited to ten. The name of
partnership must be registered first under the Registration of Business Names Act (Cap. 499).
The formation of a partnership is not very complicated. The partners may sue and be sued in
the name of their firm, but if they sue in the firm’s name they can be compelled to disclose
the name and address of every members of the firm. If sued in the firm’s name they must enter
an appearance in their own name individually but subsequently proceeding continues in the
name of the firm.
ii. Trade Unions - A trade union is the association of laborers. It has been defined by Prof. Web
in the words, “A trade union is a continuous association of wage earners for the purpose of
maintaining and improving the conditions of their employment. Trade unions are also
unincorporated associations. All the trade unions in Kenya are established according to the
provisions of Trade Unions Act (Cap 233). This Act defines a trade union as “an association
or combination, whether temporary or permanent, of more than six persons, the principal
objects of which are under its constitution the regulation of the relations between employees
and employers, or between employees and employees.” Although a trade union is an
unincorporated association but it may sue and be sued and be prosecuted under its registered
name. This gives the trade union a form of corporate personality. It is done so as to facilitate
any criminal and civil proceeding. Section 27 of the Act provides that:
- A registered trade union may sue and be sued and be prosecuted under its registered
name.
- An unregistered trade union may sue and be sued and be prosecuted under the name
by which it has been operating or its generally known.
- Section 25 of the Act provides that every trade union shall be liable on any contract
entered into by it or by an agent acting on its behalf.

Natural Persons
Discussed below are the provisions of the law of persons on various natural persons.
a) Minors - A minor is also known as an infant. He is a person who is below the age of majority.
A person who has attained the age of majority is a major or an adult. The Age of Majority Act
 (Cap 33) provides that a person shall be of full age and cease to be under any disability by reason
of age on attaining the age of eighteen years. The infants can sue and be sued in tort. The age of
criminal responsibility is at the age of eight years. An infant is not eligible to vote until he has
attained the age of eighteen years and whose name appears on the register of voters (Section
43(1). Constitution of Kenya). An infant can own personal property. As regards the immovable
property, an infant’s name can be entered in the register as the owner of registered land (Section
113(1) of the registered Land Act (Cap 300). With exception of this right, an infant cannot own
immovable property. Minority is a disability in the sense that there are certain things which a
minor cannot do or be made liable for e.g. a minor cannot get a driving license.

Legitimation - A legitimate child is a child who is born within the wedlock (lawfully married) of
the parents. On the other hand, an illegitimate child is a child who is born outside wedlock.
Legitimation is the process by which an illegitimate child becomes legitimated. It is brought by the
subsequent marriage of the parents of a child who was born illegitimate. Thus, if A and B, being
unmarried, beget a child C, C is an illegitimate child; but if A and B subsequently get married, C is
said to be legitimated and he thereby becomes a legitimate child. The Legitimacy Act (Cap 145)
provides that an illegitimate child can be legitimated by the subsequent marriage of his parents.
Section 5 of this Act provides that an illegitimate person after becoming legitimate is entitled to take
any interest:
- In the state of an intestate dying after the date of legitimation, or
- Under any dispution coming into operation after the date of legitimation
- By descent under an entailed interest created after the date of legitimation
He is treated as legitimate person as he had been legitimate. There is only one limit to this right i.e,
when property devolves on children and the question of seniority arises, a legitimated person is
deemed to have been born on the date of his legitimation. Under the Law of Succession (Cap 160),
the term child also includes an illegitimate child. This in effect gives an illegitimate child the same
claim on his father’s estate as a legitimate child. Under the customary law, an illegitimate child has
the same rights as a legitimate child.

Adoption - Adoption is the process by which parental rights are transferred from the natural parents
of a child to other persons authorized by law. An infant can be adopted so that the relationship
between the child and the adopter is similar to that of the parent and child. The adoption is governed
in Kenya by the Adoption Act (Cap 143). An adoption order has the effect of vesting in the adopter
all rights, duties, obligations and liabilities which were previously vested in the parent(s) or
guardian(s) of the adopted child. And after adoption, the adopter becomes responsible for the custody,
maintenance and education of the adopted child, and he has a right to consent or dissent to the
marriage of the adopted child.

Indeed, the adopted child is much in the same position as a child born to the adopter in lawful wedlock
even in matters of family settlements and inheritance. The infant who is adopted will have also the
same rights to the adopter’s property as if he were his real child. A resident magistrate’s Court has
the jurisdiction to hear and issue adoption orders where all the consents required, have been given
and where the adoption case is straight-forward. In other cases, the High Court makes Adoption
Orders. Any person aggrieved by the making or refusal of an adoption order can appeal to the Court
of Appeal.

Guardianship - An infant’s interests are normally protected by his parents. Where an infant has no
parent there is need for a guardian to play this role. An infant whose interests are looked after by a
guardian is known as a ward. The law relating to the guardianship and custody of infants is contained
in the Guardianship of Infants Act (Cap 144). Section 3 of the Act provides that:
 - On the death of the father of an infant, the mother shall be the guardian of the infant, either
alone or jointly with any guardian appointed by the father. When no guardian has been
appointed, the court may appoint a guardian to act jointly with the mother.
- On the death of the mother of an infant, the father shall be the guardian of the infant, either
alone or jointly with ant guardian appointed by the mother. When no guardian has been
appointed, the court may appoint a guardian to act jointly with the father.
- Where an infant has no parent, no guardian of the person and no other person having parental
rights with respect to it, the court, on the application of any person may appoint the applicant
to be the guardian of the infant.

A guardian exercises control over an infant and is responsible for his education, maintenance and
welfare. For example, before an infant between the ages of sixteen and eighteen years can marry, the
consent of the guardian is required. A guardian has power over the estate and the person. The guardian
must have regard to the welfare of his ward.

b) Mentally Disordered Persons

A mentally disordered person is also known as a person of unsound mind. Like a minor, he lacks
capacity to do certain things. The insanity affects a person’s legal capacity on many ways. The law
recognizes that such persons may be exploited or taken advantage of and that some measure of
protection is required. The mental Treatment Act (Cap 248) provides some measure of protection,
treatment, care of mentally disordered persons and the custody and the management of the property
of such persons. A mentally disordered person is subject to certain disabilities. These are as under:
He does not have the right to vote.
 A marriage contracted by any person of unsound mind is not valid [Matrimonial Causes A ct
Chapter 152, Section 14(1) (f)].
 Insanity is a defense to a prosecution for any crime, although the accused must prove that he
was insane at the time the crime was committed.
 The contracts of mentally disordered persons are voidable at the option of the mentally
disordered persons.
The mental Treatment Act (Cap 248) requires that a person of unsound mind must be admitted to a
mental hospital. Any such person may be received as a voluntary patient into a mental hospital if he
has attained the age of sixteen years. Any person under that age can be received as a voluntary patient
if a parent or guardian is so desirous. A magistrate can also make a reception order to admit a person
of unsound mind into a mental hospital. This order is made if it is proved that the person is of unsound
mind. It also requires the report of a medical practitioner. Under this Act, the court may also make
orders for the management of the estate of any mentally disordered person and for the guardianship
of such person by any near relative or by any other suitable person.

Provisions of the law of persons on Marriage

Marriage is said to be a contractual relationship. It is viewed as a contract between a man and his
wife. It gives rise to certain rights and duties.
The Law of Kenya recognizes the following four systems of marriage
a. Statutory Marriage
b. Customary marriage
c. Hindu marriage
d. Islamic marriage
The parties to a statutory marriage must each have capacity to marry. This capacity is determined by
their age, sex and marital status. Except in the case of a widower or a widow, marriage age is generally
21 years. A person below this age can only contract a marriage with the consent of his father, or the
mother in case the father is dead or of unsound mind or absent from Kenya. As regards sex, the parties
to the marriage must be male and female. The persons of same sex have no capacity to marry.
Regarding marital status, each of the parties to the intended marriage must be single. A marriage is
null and void if it is celebrated while the former husband or wife of either party is still alive and the
previous marriage is still in force. It makes no difference that the previous marriage was celebrated
under customary law. Finally, a marriage is null and void if the parties to it are within the prohibited
degrees of consanguinity or affinity. This means that the close relatives, such as brothers and sisters
have no capacity to marry each other. The persons of unsound mind, i.e. lunatics and idiots, have no
capacity to marry.

Citizen or Nationality
Nationality or citizenship refers to a person’s political allegiances to some state in return for which
he is afforded protection by the state. Each independent state has right who are the nationals or citizen.
The law relating to citizenship and the nationality of Kenya is contained in the constitution of Kenya
and the Kenya citizenship Act (Cap. 170). Provisions of the law of persons on Acquisition of
Citizenship
Citizen of Kenya may be acquired in four different ways. These are
1. By birth,
2. By descent,
3. By registration,
4. By nationalization
These are explained below
 By Birth - Citizen by birth is determined by the fact of being born in Kenya and also by
citizenship of a person’s parents or grandparents. All persons born in Kenya who on 11 th
December 1963 were either citizens of the United Kingdom or British protected persons
automatically became Kenyan citizens on Independence Day (12 th December 1963) if either of
their parents had been born in Kenya. A person born in Kenya after 11 th December 1963 shall
become citizens of Kenya.
 By descent - A person born outside Kenya after 11 th Kenya after 11 th December 1963 becomes
a citizen of Kenya on the day of his birth if on that day his father is a Kenya citizen. This
citizenship is by descent only if at that time of his birth his father was Kenya citizens other than
a citizen by descent born outside Kenya do not acquire the country’s citizenship from him or his
father. Thus paternity is given prominence in the determination of citizenship by descent.
 By registration - Any woman who marries a citizen of Kenya may apply for registration and
be granted citizenship. Similarly, a person of full age who is a citizen of a commonwealth country
or a specified African country who has been ordinarily resident in Kenya for five years may be
registered as a Kenya citizen upon making an application for this purpose.
 By naturalization - Section 93 of the Kenya constitution Act provides that an alien may apply
to be a citizen and he may be granted with a certificate of naturalization if:
a) He is of full age
b) He has resided in Kenya for one year before the application
c) He has resided in Kenya four a total of four years during the seven years before the one
year in paragraph (b) 30
d) He is of good character;
e) He has an adequate knowledge of the Swahili language
f) He intends to remain a resident, if naturalized
Note: The grant of citizenship by naturalization is purely discretionary

Loss of Citizenship
There is two ways in which citizenship can be lost. These are explained under
a. By Renunciation - A citizen of Kenya who is also a citizen of some other country, is free to
renounce his Kenya citizenship but he may do so only if he is of full age and capacity. For
renunciation citizenship, he is required to make a declaration in prescribed manner. He ceases to
be a citizen of Kenya upon registration of the declaration. A person who is a citizen of Kenya and
also some other countries at the age of twenty one ceases to be a citizen of Kenya at the age of
twenty three unless he has renounced the citizenship of that country.
b. By deprivation - The Kenyan citizenship also may be lost by deprivation. But the deprivation
applies only to those citizens who acquire Kenya citizenship by registration or naturalization. A
person may be deprived from citizenships in following cases:
 Has shown himself to be disloyal towards or disaffected towards Kenya;
 Has during the war in which the country was engaged, traded with or otherwise assisted the
enemy.
 Has, within five years of registration or nationalization been sentenced for more than twelve
months imprisonment.
 Has resided continuously abroad for seven years and has neither been in service of Kenya or
an international organization which county is a member, nor registered annually at a Kenya
consulate his intention to retain the citizenship or
 Has obtained his registration or naturalization by fraud, false representation or concealment
of a material fact.
Provisions of the law of persons on Domicile and Residence
A person’s domicile is the place where he permanently resides with an intension to remain. Mere
residence is not sufficient. Animus manedi i.e. an intention to permanently remain must be
established. In order to establish the domicile of a person, the following two elements are taken to
consideration.
 Actual residence
 Animus Manedi’ i.e. the intention to remain in that place or country
Where these two elements co-exist, a person is said to have a domicile in that country. For example,
a Ugandan citizen may decide to live permanently in Kenya. In that case, Ugandans acquires a
domicile in Kenya. The law relating to domicile in Kenya is contained in the “The laws of Domicile
Act (cap. 37). There are three types of domicile: origin, choice and dependence. These are explained
as under:
a. Domicile of Origin - A person acquires his domicile of origin at birth. A legitimate child
inherits its father’s domicile (S.3), an illegitimate child inherits its mother’s (S.3) and under
common law a founding (i.e. an abandoned child) has its domicile of origin continuous until
he acquires a new one
b. Domicile of Choice - A man acquires a new domicile by taking up his fixed habitation in a
country which is not that of his domicile of origin. He is then said to have acquired a domicile
of choice, where upon the domicile of origin is relinquished. He may however later resume
his domicile of origin. A domicile of choice continuous until the former domicile is resumed
or until another domicile is acquired. It is important to note that the only person of full age
and capacity may acquire the domicile of choice. For example a Kenyan may decide to live
in Tanzania permanently. In this case, he acquires Tanzania domicile though he remains a
Kenyan citizen.
c. Domicile of Dependence - Domicile of dependence is also sometimes described as
dependent domicile. A person is said to have this kind of domicile if his domicile necessarily
changes with that of another person on whom he is dependent. A woman acquires the domicile
of the husband on marriage. An infant acquires the domicile of the father.
Domicile and Residence
A place where a person lives, whether permanently or temporarily, is his residence. A person’s
residence determines his liability of taxation, i.e. he is subject to the place where he resides; it also
determined his status in war time-a person who is resident in a country with Kenya is engaged in war
is automatically an enemy.
Residence as such must be distinguished from domicile. A mere temporary stay is sufficient to
constitute one a resident of a particular area but to be domiciled in a place one must intend to
permanently remain there; residence is just one of the two elements required to prove domicile. There
are two reasons which make it important to draw a distinction between the two; first to determine the
law applicable and secondly to determine whether the court has jurisdiction in a particular case. As
already seen, a person’s family relations and movable property are determined by the law of his
domicile; they are not determined by the law of the place where he might be temporarily resident.
Thus, if a domiciled Englishman takes up residence in Kenya dies in Kenya living movable property
succession to the property will be governed by the government of England and not the law of Kenya.
Regarding jurisdiction, courts usually have jurisdiction over persons who are resident within their
territorial jurisdiction.

Domicile and Nationality

Domicile must be distinguished from nationality. While nationality is referable to as political system
in the sense that a person owes his allegiance to the state that he is a national domicile on the other
hand is referable to as a legal system: a person’s family relations in these matters like marriage and
divorce, legitimacy etc., and also his movable property are governed by the laws of his domicile.
Secondly, it is possible for a person to have a no nationality at all e.g., where he is rendered stateless
upon being deprived of his citizenship; but every person must have a domicile at any one time.
Thirdly, it is possible for a person to have dual citizenship, i.e. to be a citizen of more than one country
at the same time but no one can have more than one domicile at the same time.

Provisions of the law of persons on proceedings against the State

The government may commit a civil wrong, just like an ordinary individual. The law relating to
proceedings against the state is governed by the Kenya Government proceedings act (Cap.40). An
aggrieved person has a right to sue the government for the act and defaults of its servants and agents.
The government is liable for its own wrongful acts as well as those committed by its servants if the
servant himself would have been liable in the first place. Section 4(1) of this Act provides that the
state may be sued in tort in the following cases:
a. In respect of the torts committed by it servants or agent.
b. In respect of any breach of those duties which a person owes to his servants or agents at
common law by reason of being their employer; and
c. In respect of any breach of the duties attaching at common law of the ownership, occupation,
possession and control of property
2.0 LAW OF TORT
Nature of tort, General defense’s of tort, Negligence, Vicarious liability, Strict Liability, Defamation
and Limitation of actions
Meaning of Tort
Tort is a civil wrong which according to Sir F. Pollock defined as; an act which causes harm to a
determinate person whether intentionally or not, not being a breach of a duty arising out of a person
relationship or contract and which is either contrary to the law, or an omission of a specific legal duty,
or violation of an absolute right. Prof. P H Winfield, Tortious Liability arises from breach of a duty
primarily fixed by law; this duty is towards persons generally and its breach is redressable by an action
for unliquidated damages. Sir John Salmond defined Tort as a civil wrong for which the remedy is
common law action for unliquidated damages and which is not exclusively the breach of contract or
the breach of trust or other merely equitable obligation.
From the definition we can conclude the following characteristics about tort
i. Tort is a private wrong, which infringes the legal right of an individual or specific group of
individuals.
ii. The person, who commits tort is called "tort-feasor" or "Wrong doer"
iii. Tort litigation is compoundable i.e. the plaintiff can withdraw the suit filed by him.
iv. Tort is a specie of civil wrong.
v. Tort is other than a breach of contract
vi. The remedy in tort is unliquidated damages or other equitable relief to the injured.
Note; Liquidated damages should be distinguished from unliquidated damages.
 Liquidated damages- this is a specified amount of compensation. The law is usually clear on
what the liable party pays or the parties themselves have already agreed to the compensation
 Unliquidated damages- this kind of compensation is unspecified and the court will rely on the
nature of the case to determine it.
NATURE OF TORT
This liability arises once there is a breach of duty which is primarily fixed by the law. Generally the
plaintiff has to prove that he suffered harm and there was violation of his legal rights. Some actions,
however, are actionable per se, i.e., without proof of injury, e.g. trespass to land. The liability and
remedy of a party in torts will depend on the following general principles
1. Damnum sine injuria (harm without legal injury) - This basically means the causing of damage
without the violation of a legal right. Such a case is not a valid claim in the court of law. The fact
that the man is injured by another man's act does not by itself constitute a cause of action; this may
be even if the injury-causing act is intentional or deliberate. A violation of the legal right is required
in order for a valid cause of legal action to exist. In mogul steamship company v.mc Gregory gow
and company , where a number of steamship companies conspired and drove another tea-carrier
company out of business by offering lesser rates. Even though the plaintiff was financially injured,
the House of Lords ruled that the other companies were entitled to indulge in such competitive
practices and therefore there was no cause of action.
2. Injuria sine dumno - This refers to a situation where one suffers a violation of his legal rights
without actual injury or damage, e.g. trespass to land. In such instance the person is entitled to
remedy. In, Ashbay Vs. White, the defendant, a returning officer at a voting booth, wrongfully
refused to register a duly tendered vote of the plaintiff, who was a qualified voter. The candidate
for whom the vote was sought to be tendered was elected. So no loss was suffered by the plaintiff
for rejection of his vote. The Court held that violation of the plaintiff’s right was an injury to him
for which he must have a remedy without proof of actual damage.
Tortious liability can also be determined on the basis of the fault principles. In this case it is necessary
to establish some fault on the part of the wrongdoer before he can be made liable. Fault principle is
determined in three ways;
 Intention- where one does a wrongful act intending the consequences
  Recklessness- doing an act without regarding the consequences
 Negligence- this is doing something that a reasonable person would not do, or omitting an
action that a reasonable person would do.
MALICE
In tort malice come out in two ways;
 The intentional doing of some wrongful act without proper excuse
 To act with some collateral or improper motive.
It is the second that is usually referred to and it is worth noting that in torts in that sense malice becomes
irrelevant in tort, i.e. if a person has a right to do something then his motive in doing it is irrelevant.
Bradford Corporation v Pickles (1895). The defendant extracted water in undefined channels with the
result that the water supply to the plaintiffs‟ reservoir was reduced. The defendant‟s motive in doing
this was to force the plaintiffs to buy his land at his price. The action failed, as the defendant had a
right to extract the water. As he had such a right, his motive, even if malicious, was irrelevant. There
are two groups of exceptions to this basic principle:
 Where malice is an essential ingredient of the tort, for example, in malicious prosecution, the
plaintiff must prove not only that the defendant had no grounds for believing that the plaintiff was
probably guilty, but also that the defendant was activated by malice. The reason for this
requirement is that policy in this area favours law enforcement over individual rights. The result of
the requirement is that there are few successful cases of malicious prosecution.
 There are also torts where malice may be relevant to liability. For example, in nuisance malice may
convert what would have been a reasonable act into an unreasonable one. Christie v Davey (1893)
Plaintiff and defendant lived in adjoining houses. The plaintiff gave music lessons and this annoyed
the defendant. In retaliation the defendant banged on the wall and shouted while the lessons were
in progress. The plaintiff was held to be entitled to an injunction because of the defendant‟s
malicious behaviour.
VICARIOUS LIABILITY
Generally, each person is liable for his or her own torts. There are circumstances however, that another
person may be held liable for torts committed by another. This is referred to as vicarious liability. This
mostly tend to occur in employment scenarios. The following must exist to establish liability;
 There must be a master/servant relationship between the parties concerned
 The servant must have been acting in the course of employment at the material
Who exactly is a servant?
Masters/Employers will only be liable for the torts of their employees/servants. They will not usually
be liable for the torts of their independent contractors. It is therefore necessary to establish the status
of the tortfeasor.
The control test
In this case a servant is defined as someone over whom the master has control over, i.e. someone
employed over a contract of service. While an independent contractor is someone who is under a
contract for service in which case such a person work using their own judgement. In Collins v
Hertfordshire, Hilbery J said: "The distinction between a contract for services and a contract of service
can be summarized in this way: In one case the master can order or require what is to be done, while
in the other case he can not only order or require what is to be done, but how it shall be done."
The nature of the employment test
One accepted view is that people who have a 'contract of service' (an employment contract) are
employees, but people who have a 'contract for services' (a service contract) are independent
contractors.
What is “course of employment?”
An acts done under the course of employment where it is proved to have been authorized by the master.
An employer will usually be liable for
 Wrongful acts which are actually authorized by him.
  Acts which are wrongful ways of doing something authorized by the employer, even if the acts
themselves were expressly forbidden by the employer
In Limpus v. London General Omnibus Co. 1862, a bus driver racing to a stop to collect passengers
deliberately obstructed the driver of a bus of a rival company, overturning the latter's vehicle. The bus
driver had been given instructions against obstructing other buses. Held; The defendants were liable.
The driver was acting within the course of his employment at the time; it was immaterial whether his
act was forbidden.
The master is only liable if the tort was committed in the course of employment. See the following
case; in Storey v. Ashton (1869), a driver took a different route to make a frolic of his own. On this
way he caused an accident because of his negligence. Held; No liability of the company, though this
was just a little detour, the driver was carrying out his own business. Note; Not every detour taken by
the drive will usually take him out of the course of employment because some may be necessary. The
circumstances surrounding the case should be considered too.
THE INDEMNITY PRINCIPLE
There is a term implied at common law into contracts of employment that an employee will exercise
all reasonable care and skill during the course of employment. An employee who is negligent is in
breach of such a term and the employer who has been held vicariously liable for the tort may seek an
indemnity from the employee to make good the loss.
LIABILITY IN RESPECT OF AN INDEPENDENT CONTRACTOR
The employer is generally not liable for torts committed by an independent contractor. The employer
is however liable if he is deemed to have committed the tort. This may occur in the following instances:
1. Whether the employer has authorized the commission of the tort
In many circumstances, the law will attribute to a man the conduct of another being, whether human
or animal, if he has instigated that conduct. He who instigates or procures another to commit a tort is
deemed to have committed the tort himself. In Ellis v. Sheffield gas Consumers Co the defendant who
had no authority to up the street employed a contractor to open trenches and lay gas pipes along a
street. The contractor carelessly left a heap of stones on the footpath; the plaintiff fell over them and
was injured. Held: the defendants were liable since the contract was to do an illegal act, a public
nuisance. The decision would have been different had it been lawful for the defendant to dig up the
streets.
2. Torts of Strict Liability
The employer is liable in those circumstances e.g. in Rylands-v-Fletcher the employer was held liable
for the acts of his independent contractors as this was a case of strict liability. These in torts of strict
liability, the employer will be liable even where the tort e.g. the escape is caused by the negligence of
an independent contractor. In Terry v. Aston, the defendant employed an independent contractor to
repair a lamp attached to his house and overhanging the footway. As it was not security fastened, the
lamp fell on the plaintiff, a passer-by and the defendant was held liable, because: it was the defendant‟s
duty to make the lamp reasonably safe, the contractor had failed to do that. Therefore, the defendant
has not done his duty and is liable to the plaintiff for the consequences. Here liability was strict.
3. Negligence
When there is an element of personal negligence on the part of the employer as to make him liable for
the acts of an independent contractor. E.g. Where the employer is negligent or careless in employing
an independent contractor for instance, where the contractor is incompetent. Failure to provide
precaution in a contract where there is risk of harm unless precaution is taken can make the employer
liable for the tort of the contractor. In Robinson v. Beaconsfield Rural Council, the defendant employed
an independent contractor, one hook, to clean out cesspools in their district.
No arrangements were made for the disposal of the deposits of sewage upon being taken from the
cesspools by hook. Hook men deposited the sewerage on the plaintiff land. Held: The defendants had
a duty to dispose the sewerage and, on construction of the contract, they had not contract with hook
for discharge of this duty (disposing of the sewage) hence they were liable for the acts of the hook’s
men in disposing it on to the plaintiff land.
4. Where the Duty of Care Is Wide
An example is where the independent contractor is dealing with hazardous circumstances, or works
which from their very nature, pose danger to other persons. In Holiday v. National Telephone Co, the
defendant, a Telephone Company, was lawfully engaged in laying telephone wires along a street. They
passed the wires through tubes, which they laid a trench under the level of the pavement. The
defendants contracted with a plumber to connect these tubes at the joints with lead and solder to the
satisfaction of the defendant foreman. In order to make the connections between the tubes, it was
necessary to obtain a flare from a benzoline lamb of applying heat to the lamb. The lamb was provided
with a safety valve. The plumber dipped the lamp into a caldron of melted solder, which was placed
over a fire on his footway. The safety valve not being in working order caused the lamb to explore.
The plaintiff, who was passing on the highway was splashed by the molten solder and injured. Held:
The defendant were liable because having authorized the performance of work which from its nature
was likely to involve danger to persons using the highway were bound to take care that those who
executed the work for them did not negligently cause injury to such persons.
GENERAL GUIDELINE IN DETERMINING WHETHER AN ACT WAS COMMITTED
DURING THE COURSE OF EMPLOYMENT
1. Look at the mode of doing the work the servant is employed to do - In Century Insurance C v.
Northern Ireland Road Transport Board, one of the respondent’s employees was delivering petrol to
garage. While the petrol was flowing from the lorry to the tank, he lit a cigarette and negligence threw
away the lighted match which caused an explosion damages the appellant’s property. The action of the
employee was treated as being within the course of employment. On appeal it was held that the
respondents were liable for the damage caused for such an action, whilst for the comfort and
convenience of the employee could not be treated as isolated act as it was a negligent method of
conducting his work. In Bayley v. Manchester Sheffield and Lincolnshire Railway the plaintiff was in
a train traveling to Macclesfield and he explained this to the mistakenly believed that the plaintiff was
the wrong train (that train was not traveling to Macclesfield) and violently ejected the plaintiff who
suffered injuries. Held: The defendants were liable because the porter was acting within the cause of
employment.
2. Whether the act was authorized within the limits of time and space e.g. if one is employed to
work between 8.00 a.m. and 5.00 p.m., the master is only liable for torts committed within that time
frame. In Ruddiman & Company v. Smith, the plaintiff was using the lower room of the defendant’s
House while the defendant used the upper room for carrying on business. In the upper room there was
a lavatory. The clerk, after duty, went to the lavatory to wash his hands but on turning on the tap and
finding no water, went away without turning the tap off. When water turned on the morning, it overflew
into the lower room and damaged the plaintiff goods. Held: The employer was liable for whether or
not the use of the lavatory. Within the scope of The clerk’s employment, it was an event incidental to
his employment. In Storey v. Aston, the defendant, a wine merchant, sent his car man and clerk to
deliver wine and pick up empty bottles. On their way back, they diverted to visit the clerks house in
the course of which they negligently knocked down the plaintiff and injure him. Held: The defendant
was not liable for the injury caused by the negligent driving of the car. Man for he was, that time,
engaged in a new and completely unauthorized journey.
3. Whether the act was the initiative of the servant or the master had a certain control. In Warren
v. Henlys Ltd, erroneously believing that the plaintiff had to drive away from the garage without paying
or surrendering coupons for petrol which had been put in the tank of his car, a petrol pump attendant
used violent language to him. The plaintiff paid his bill and gave the necessary coupons and after
calling the police, told the attendant that he would report him to his employers. The pump attendant
then assaulted and injured him. In an action for personal injuries against his employers. It was held
that the defendants were not liable for the wrongful act of their employee. Since the act was one of the
personal vengeances and was not done in the course of employment; it not is an act of a class which
the employee was authorized to do or a mode of doing an act within that class. In Poland v. John Parr
and Sons, Arthur Hall, a carter was employed by John Parr. Parr and his son were conveying a wagon
with bags of sugar. Arthur, on his way home for dinner was walking else to the wagon. The plaintiff,
a schoolboy, was walking home in the same direction with his hand upon one of the bags of sugar.
Honestly and reasonably thinking that the boy was stealing, Arthur gave him a blow on the back of his
neck as a result whereof he fell and the wheel of the wagon injured his foot which was amputated.
Held: In the circumstances, the carter had implied authority to make reasonable efforts to Protect and
preserve the defendants’ property; that the violence exerted was not so excessive as to take his act
outside the scope of authority and that the defendant were liable.
4. Where there is an express prohibition - An express prohibition does not negate liability i.e. a
master does not escape liability simply because he had an express prohibition. For liability to be
determined, two factors are considered:
 Whether the prohibition limits the sphere of employment. If it does, the master is not liable for
an act done outside the sphere. (Sphere).
 Where the prohibition deals with the contract within the sphere of employment. If it does, the
employer will be liable. (Mode)
In Canadian Pacific Railway Co v. Lockhart a servant of the appellant Company in disregard of written
notices prohibiting employers from using private cars for the purpose of the company’s business unless
adequately insured, used his uninsured motorcar as a means of execution of work which he was
ordinarily employed to do in the course of which he injured the respondent. Held: The means of
transport was incidental to the execution of work, which the servant Was employed to do and that the
prohibitions of the use of an uninsured motorcar merely limited the mode of executing the work, breach
of the prohibition did not exclude the liability of the company to the respondent. In Rand v. Craig,
Carters were employed by a contractor to take rubbish from certain works to his dump and were strictly
forbidden not to hip it anywhere else. Some of the carters, without knowledge of the contractors, and
in contravention of their orders took the rubbish to a piece of unfenced land belonging to the plaintiff
as it was nearer the works that the dump of contractor. Held: The illegal acts complained of where not
within the sphere of the carter’s employment And consequently the contractor was not liable for them.
5. Whether the act was a deliberate criminal act - In Lloyd-v-Grace Smith & Co., the plaintiff had
sought advice from the defendants, a firm of solicitors, whose managing clerk conducted conveyance
work without supervision. He advised the plaintiff to sell some property, fraudulently persuading her
to sign certain documents that transferred the property to him. He disposed of it and kept the proceeds.
Held: Even though the fraud had not been committed for the benefit of the employers, Nevertheless
they were liable, for the clerk had been placed in position to carry over such work and had acted
throughout in the course of his employment. This principle is subject to the following exceptions
 Cases where the employer is under some statutory duty which he cannot delegate
 Where the employer retains his control on the contractor
 Where the contract becomes a tort such as nuisance
 Where the rule in Ryland v Fletcher (1866) applies
STRICT LIABILITY
Generally emphasis has been placed by courts on fault based liability. Strict liability is an exception to
this principle. This is liability without fault. Where torts are of strict liability there is no need for the
plaintiff if to prove fault on the defendant’s part. It is important to distinguish strict liability from
absolute liability. In absolute liability, a particular wrong is actionable without proof of fault and in
addition there is no defense availed to the wrongdoer. In strict liability however, the wrongdoer has a
number of defense availed to him/her, hence the difference between the two.
Strict liability is clearly brought out in the following case;
Rylands v. Fletcher (1866)
The defendant owned a mill and constructed a reservoir on their land. The reservoir was placed over a
disused mine whose passages communicated with the adjoining mine of the plaintiff. The defendant
was not aware of this fact and therefore took no precaution against it. Water from the reservoir filtered
through to the disused mine shafts and then spread to a working mine owned by the claimant causing
extensive damage. Held: The defendants were strictly liable for the damage caused by a non- natural
use of land. It was immaterial that there was no fault on their part.
The following statement made by Lord Cranworth, explains the rule behind this case; “If a person
brings, or accumulates, on his land anything which, if it should escape, may cause damage to his
neighbour, he does so at his peril. If it does escape, and cause damage, he is responsible, however
careful he may have been, and whatever precautions he may have taken to prevent the damage.”
Liability under Rylands v Fletcher is now regarded as a particular type of nuisance. It is a form of strict
liability, in that the defendant may be liable in the absence of any negligent conduct on their part.
Imposing liability without proof of negligence is controversial and therefore a restrictive approach has
been taken with regards to liability under Rylands v Fletcher, It is worth noting that the rule refers to
anything likely do mischief, this poses its own challenges.
THE RULE IN RYLANDS v. FLETCHER
Anyone who in the course of non – natural use of his land, accumulates thereon for his own purposes
anything likely to do mischief if it escapes is answerable for all direct damage thereby caused. This is
the rule in Rylands v. Fletcher where the defendant employed independent contractors to construct a
water reservoir on the land, which was separated from the plaintiffs land by adjoining land. In the
course the works the contractors came upon some old shafts and passages filled with earth. The
contractors did not block them up. Unknown to them, the shafts connected their land with the plaintiff’s
mines. When the water filled the reservoir, it seeped through the old shafts and into the plaintiff’s
mines thence flooding them. It was found as a fact that the defendant was not negligent, although the
contractors had been. However, although the defendant was neither negligent nor vicariously liable in
the tort of his independent contractors, he was held liable by the Court of Exchequer chamber and the
House of Lords. The judgment of the Court of Exchequer chamber was delivered by Blackburn J. at
P. 279 -280 and it has become a classical exposition of doctrine.“We think that the true rule of law is,
that the person who for his own purpose brings on his land and collects and keeps there anything likely
to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie
answerable for all the damage which is the natural consequences of its escape.” This may be regarded
as the „rule in Rylands v. Fletcher’ But what follows is equally important. The court further said:
“He can excuse himself by showing that the escape was owing to the plaintiff’s default; or the act of
God: it is unnecessary to inquire what excuse would be sufficient”.
The general rule, as above stated, seems to be just in principle.
“The person whose grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine
is flooded by the water from the neighbor’s reservoir, whose cellar is invaded by filth of his neighbours
or whose habitation is made unhealthy by the fumes and noise and vapours of his neighbours alkali
works, is damnified without any fault of his own; and it seems reasonable and just that the neighbour,
who has brought something on his own property which was naturally there harmless to others so long
as it is confirmed to his own property, but which he knows to be mischievous if it gets on his neighbours
should be obliged to make good the damage which ensues if he does not succeed in confining it to his
property. But for his act in bringing it there no mischief could have accrued, and it seems but just that
he should at his peril keep it there so that no mischief may accrue, or answer for the natural and
anticipated consequences and upon authority, this we think is established to be the law whether the
things so brought be beasts, or water, or filth, or stenches.”
Lord Cairns in the House of Lords upheld this judgment but restricted the scope of the rule to where
the defendant made a “non-natural use” of the Land.
This decision makes it clear that liability was strict in the sense that the defendant’s liability was neither
personal nor based on a mere vicarious liability for the negligence of his independent contractors.
REQUIREMENTS OF THE RULE IN RYLANDS v. FLETCHER
1. THE THING - The rule does not require that the thing should both likely to escape and likely to do
mischief on escaping. If this were the case, there would be little difference between the rule in Rylands
v.Fletcher and negligence. Furthermore, in Rylands v. Fletcher,the thing need not be dangerous in
itself. The most harmless objects may cause damage on escape from a person land. The rule has been
applied to a large number of objects including water, gas, electricity, explosives, oil, vibrations,
poisonous leaves of trees, a flag post, a revolving chair at a fair ground, acid smuts from a factory, a
car, fire and even at one time gypsies.
2. ACCUMULATION - The thing must be brought into the land for the defendant’s purposes. The
defendant need not own the land into which the thing is brought. A temporary occupier of land such
as a lessee or a person physically present on the land but not in legal occupation of it such as a licensee
is equally within the scope of the rule and is liable for damage caused upon escape or a thing he has
brought onto the land. The requirement that the thing should be on the land for the purpose of the
defendant does not mean that it must benefit the defendant. Where the thing is naturally present on the
defendant cannot be liable for its escape under Rylands-v-Fletcher. The escape of weeds, rocks and
floodwater is thus outside the scope of the rule but recent decisions have established possibility of an
action in nuisance for such escape. The accumulation must thus be voluntary.
3. NON-NATURAL USER OF LAND - This is the most flexible and elusive ingredient of liability.
Blackburn J. understood „natural‟ to mean things naturally on the land and not artificially created.
However uncertainty crept as a result of Lord Cairns qualification that must be „a non-natural user‟ of
the land. Through a series of cases, courts have come to look upon „natural‟ as signifying something
which is ordinary and usual even though it might be artificially instead of non-artificial. Non- natural
use of land was explained by the Privy Council in Richard v. Lothian as per Lord Moulton. „It must
be some special use bringing with it increased danger to others and must not merely be the ordinary
use of the land or such a use as is proper for the general benefit of the community.‟ What is natural is
now viewed differently in different cases. Non-natural use of land is generally constituted by certain
activities as the storage on the land in bulk of water, electricity, gas and the collection of sewage by
local authorities.
4. ESCAPE - There is no liability under the rule unless there is an escape of the substance from the
land where it is kept. In Read-v-Lynns & co Ltd. the defendants operated on ammunition factory as
agents of the Ministry of Supply. The plaintiff was an appointed inspector for the ministry. In the
course of carrying out her duties in the factory, an explosion occurred causing her injuries. She based
her claim against the defendants on Rylands-v-Fletcher making no assertion that the defendants had
been negligent. It was held that Rylands-v- Fletcher was inapplicable because there had been no escape
of the thing that inflicted the injury. The House of Lords defined escape as: “Escape from a place where
the defendant had occupation and control over land to a place which is outside his occupation or
control.” It was stated further in this case that Rylands-v-Fletcher is conditioned by 2 elements;
a. The condition of escape from the land of something likely to do mischief if it escaped
b. The condition of non-natural user of the land.
The House of Lords emphasized that the absence of an escape was the basis of their decision in this
case.
5. DAMAGE - Rylands –v-Fletcher is not actionable per se and therefore there must be proof of actual
damage. This appears to mean actual damage to person or property and it excludes a mere interference
with the plaintiff’s enjoyment of this land, such as would be a ground in an action in nuisance. Damage
recoverable under the rule is limited to damage to person or property. In Hale-v-Jennings Bros, the
court held that an occupier of land was entitled to damages for personal injury under the Rule in
Rylands-v-Fletcher. In Cattle-v-Stocker Waterworks co, it was held that purely economic loss was not
recoverable.
Requirement for strict liability to be applicable;
a. Accumulation on the defendant’s land - The defendant must bring the hazardous material on to his
land and keep it there. If the thing is already on the land or is there naturally, no liability will arise
under. The thing must be accumulated for the defendant's own purposes and the thing that escapes
need not be the thing accumulated. Miles v Forest Rock Granite (1918). The defendant was blasting
rocks using explosives which they had brought onto their land. Some of the rocks flew onto the
highway and injured the claimant. The claimant brought an action based on the principal
established in rylands v. Fletcher. Held: The defendant was liable despite the fact that the rocks
were not brought on to the land nor purposively collected and kept there. The explosives were
accumulated and caused the rocks to escape.
b. A thing likely to do mischief - The thing need not be essentially hazardous, it should only be a
thing likely to cause damage if it escapes
c. No for Escape - There must be an escape from the defendant's land into the plaintiff. An injury
inflicted by the accumulation of a hazardous substance on the land itself will not invoke liability
under Rylands v Fletcher. In Ponting v Noakes (1849) the claimant‟s horse died after it had reached
over the defendant‟s fence and ate some leaves from a Yew tree. The defendant was not liable
under Rylands v. Fletcher as the Yew tree was entirely in the confines of the defendant‟s land and
there had therefore been no escape. Charles, J: "I do not see that they can be made responsible for
the eating of these Yew leaves by an animal which, in order to reach them, had come upon his land.
The hurt which the animal received was due to his wrongful intrusion. He had no right to be there
and the owner therefore has no right to complain."
d. Non-natural use -The defendant must be using his land in a way that is not ordinary
e. Remoteness of damage - Liability in Rylands v Fletcher is subject to the rules on remoteness of
damage. Remoteness of damage relates to the requirement that the damage must be of a foreseeable
type. Remoteness of damage is often viewed as an additional mechanism of controlling tortious
liability. Not every loss will be recoverable in tort law. Originally a defendant was liable for all
losses which were a direct consequence of the defendant's breach of duty. This was largely
considered unfair as a defendant could be liable for damage which was not foreseeable and
therefore could not take steps to prevent it. In Cambridge Water v Eastern Counties Leather plc
(1994), the defendant owned a leather tanning business. Spillages of small quantities of solvents
occurred over a long period of time which seeped through the floor of the building into the soil
below. These solvents made their way to the borehole owned by the Claimant water company. The
borehole was used for supplying water to local residents. The water was contaminated at a level
beyond that which was considered safe and Cambridge Water had to cease using the borehole.
Cambridge Water brought actions based on negligence, nuisance and the rule in Rylands v Fletcher.
Held: Eastern Counties Leather was not liable as the damage was too remote. It was not reasonably
foreseeable that the spillages would result in the closing of the borehole. The foreseeability of the
type of damage is a pre-requisite of liability in actions of nuisance and claims based on the rule in
Rylands v Fletcher in the same way as it applies to claims based in negligence.
The Eggshell skull rule - A final aspect of remoteness of damage is the egg shell (or thin) skull rule.
This means a defendant must take their victim as they find them, i.e. if the victim is particularly
vulnerable or has a pre-existing condition resulting in them suffering greater injury than would be
expected in an ordinary person, the defendant remains responsible for the full extent of the injury.
Defenses in Ryland v Fletcher
a. Plaintiffs fault. Where the escape in question resulted from some fault on the part of the plaintiff
this may be used as a defense.
b. Act of stranger - If the escape was caused by the act of a stranger over which the defendant has no
control, the defendant will escape liability. In Box v Jubb (1879), the defendant had a reservoir on
their land. There was another reservoir situated at a higher level than the defendant’s. The owner
of this other reservoir emptied it through a drain connected to the defendant’s reservoir causing the
defendant’s reservoir to overflow and damage the claimant’s land. The claimant brought an action
 under Rylands v. Fletcher contending that there was a non natural user of the land and that there
had been an escape of water that caused damage. Held: The defendant was not liable for the damage
as it was caused by the act of a third party over which the defendant had no control. If however,
the act which caused the escape was committed by a person over whom the defendant may exercise
some control the defendant may still be liable:
c. Statutory authority
d. Act of God - An act of God is an event which 'no human foresight can provide against, and of
which human prudence is not bound to recognise the possibility'
e. Consent/benefit- If the claimant receives a benefit from the thing accumulated, they may be
deemed to have consented to the accumulation: in Peters v Prince of Wales Theatre (1943), the
claimant leased a shop adjacent to a theatre from the defendant, the owner of the theatre. The
claimant’s shop sustained flood damage when pipes from the theatre;’s sprinkler system burst due
to icy weather conditions. The claimant brought an action based on liability under Rylands v.
Fletcher. Held: The defendant was not liable. The sprinkler system was equally for the benefit of
the claimant and the claimant was deemed to have consented to the use of the sprinkler system
since it had been installed prior to him obtaining the lease.
NEGLIGENCE
This is one of most important torts in law. In Blyth v. Birmingham Waterworks Co. (1856) it was
defined as; The omission to do something which a reasonable man, guided upon those consideration
which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent
and a reasonable man would not do.
Elements of negligence
 Legal duty of care
 Breach of the legal duty of care
 Loss or damage to the plaintiff
These elements must be in place before the defendant can be liable
Duty of care
This is the duty to take reasonable care to avoid acts or omissions reasonable foreseeable as to likely
cause injury to your neigbour, your neighbor being anyone likely to be affect by your actions or
omission. This started in a negligence case of Donoghue v Stevenson (1932) where the claimant (Mrs.
Donoghue) went to a café with a friend. The friend bought her a drink of ginger beer and ice cream.
The bottle of ginger beer had dark glass so that the content could not be seen. After drinking some of
it, Mrs. Donoghue poured the rest out and then saw that it contained a dead (and decomposing) snail.
This appalled Mrs. Donoghue and she became ill as a result of the sight and the ginger beer she had
already drunk. Mrs. Donoghue had no direct claim against the manufacturer or the shopkeeper based
on contract because she did not buy the ginger beer. Mrs. Donoghue’s friend could claim against the
café in contract, but had not suffered any loss apart from the fact that she had bought defective goods;
she could get her money back, but nothing for Mrs. Donoghue’s illness. Therefore, Mrs. Donoghue
claimed damages against the manufacturer, Stevenson. Her claim was for the resulting shock and
stomach upset, which she claimed was caused through drinking the ginger beer. The court had to decide
whether her claim against the manufacturer of the ginger beer could succeed. This led to Lord Atkin‟s
famous statement: “The rule that you are to love your neighbour becomes in law, you must not injure
your neighbour; and the lawyer’s question, „Who is my neighbour?‟ receives a restricted reply. You
must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely
to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be: persons who
are so closely and directly affected by my act that I ought reasonably to have them in contemplation as
being so affected when I am directing my mind to the acts or omissions which are called in question.”
The duty of care principle should fit the the three-part test in the case of Caparo v Dickman (1990).
 It was reasonably foreseeable that a person in the claimant’s position would be injured,
 There was sufficient proximity (closeness) between the parties,
  It is fair, just and reasonable to impose liability on the defendant.
All parts of the test must be satisfied if there is to be a duty of care owed by the defendant to the
claimant. Each part must be explained and proved separately.
Breach of duty of care
This means falling below given standards of care. Standard of care means the standards through which
the defendants conduct is measured. Breach of duty is measured objectively by the „reasonable man
test‟. The reasonable man is the ordinary person performing the particular task: he is expected to
perform it reasonably competently. Thus, when I am driving my car, I am expected to be a reasonably
competent driver who can drive a car. For a breach of duty to occur, the court will take four factors
into account:
 The degree of risk involved: the greater the risk, the more the defendant has to take care.
(Bolton v Stone 1951).
 The cost of precautions: the courts will see how high the risk is involved, and then take into
account the expense of taking precautions to prevent that risk (Bolton v Stone and Latimer v
AEC)
 Potential seriousness of injures: so if there is a very high risk of serious injury, the more the
defendant needs to be very careful (Paris v Stepney B.C. 1951).
 The importance of the activity: in an emergency, sometimes it is not possible to reflect, think
of a possible risk (Marshall v Osmand 1982).
Injury to the plaintiff
Having given proof of the above two the plaintiff still has to prove that he/she suffered some injury
before the defendant can be liable for negligence. There are a number of tests that are used when
assessing the injury such as Causation – „But for Test‟
Would the damage have happened had it not been for the breach of duty? This can be seen Barnett v
Chelsea and Kensington Hospitals (1969) where three night- watchmen went to Accident &
Emergency complaining of sickness after drinking tea made by a fourth man. A nurse telephoned the
doctor on duty, who did not come to examine the men but instead sent the men home and told them to
go and see their own doctors in the morning. On returning home, one of the men died a few hours later
from poisoning. His widow sued the hospital claiming that the doctor was negligent in not examining
her husband. Evidence showed that by the time the husband had called in to the hospital it was already
too late to save his life. This meant that his death was not a result of the doctor’s breach of duty and so
the claim failed.
Foreseeablility
The claimant has to show that the type of damage was reasonably foreseeable. This is seen in the case
of The Wagon Mound (1961) where fuel had negligently spilled onto water in a harbour. Two days
later the oil caught fire because of wielding work being done on another ship. The fire spread to the
claimants wharf and burnt it. The damage suffered was not reasonably foreseeable.
Thin Skull Rule (take your victim as you find him)
This rule means that the defendant must take his victim as he finds him. So, if the type damage is
reasonably foreseeable, but it is much more serious because of something unusual about the claimant,
such as a thin skull, then the defendant is liable. In this situation the damage is not too remote. This is
shown in the case of Smith v Leech Brain and Co. (1962) where because of a defendants negligence,
a man was burnt on the lip by molten metal. The burn caused him to develop cancer and his widow
claimed against the defendant and because the burn was a foreseeable injury, he was also liable for the
man’s death
The burden of proof in negligence
Generally, the burden of proof in civil actions lies with the plaintiff. He has to prove that the defendant
owe him a duty of care, that he breached it and this led into suffering. In certain cases however this
isn’t so such as in the doctrine of Res ipsa loquitur. Res ipsa loquitur translate to let the facts speak
for themselves. It is applicable in situations where something happens in a way it ought not to have. It
is applicable in negligence if;
 The thing that caused the injury was in control of the defendant or someone over whom the
defendant exercises control
 The event wouldn’t have happened without negligence
 There is no way of explaining how it happened.
DEFENCES TO NEGLIGENCE
1. Contributory negligence - This defense is available in circumstances in which the plaintiff is also
to blame for the loss or injury. The defendant must adduce evidence to establish the plaintiff’s
contribution. The defendant must prove:-
 That the plaintiff exposed himself to danger.
 That the plaintiff was at fault or negligent.
 That the plaintiff’s fault or negligence contributed to his suffering.
Effect of contribution
It reduces the amount of damages recoverable by the plaintiff by the extent of his contribution.
However, children of tender years are not guilty of contribution.
2. Voluntary assumption of risk (volenti non-fit injuria) - This defense is available in
circumstances where the plaintiff with full knowledge of the risk voluntarily agrees to undertake
the same. The defendant must prove
 That the plaintiff had actual knowledge of nature and extent of the risk
 That the plaintiff agreed to incur the risk voluntarily
In Dann v Hamilton the plaintiff had taken a ride on a vehicle driven by a drunken person and his was
aware of this fact and as a consequence an accident occurred. The defendant’s plea of volenti failed
since the plaintiff had not consented to incur the risk. However in Tugwell v Bunnet where the
defendant‟s vehicle expressly stated that passengers rode at their own risk and the driver at the material
time was drunk to the plaintiff’s knowledge but took a ride in the motor vehicle and was injured, the
defendant’s defense of volenti succeeded since the plaintiff appreciated the risk and agreed to incur the
same.
Statutory authority - If the conduct complained of by the plaintiff is authorized by statute and the
defendant has acted in accordance with the provision of the statute the defendant has a complete
defense to the plaintiff’s action. However, whether or not the defense is complete depends on the
interpretation of the statute.
NUISANCE
This tort is committed whenever a person is wrongfully disturbed in the use and enjoyment of his land.
Generally, it arises from the duties owed by neighbouring occupiers of land: no one should use in
property in a way which is likely to affect his neighbour’s use of his own land. Thus, if A and B are
neighbours, and A owns plot X while B owns plot Y, A may use plot X in any way he chooses but he
must not in doing so affect B’s of plot Y, or else he will be liable in nuisance. Although the tort of
nuisance is usually committed only where the plaintiff and defendant are owners or occupiers of land,
in certain circumstances the tort may be committed in places like a highway or even a river. There are
two types of nuisance: private nuisance and public nuisance.
Private Nuisance
A private nuisance is committed where a person’s private rights in his land are wrongfully disturbed,
whether physically or by allowing noxious things to escape out of his land. Thus, it is a nuisance to
obstruct an easement or private rights of way; or to allow a weak structure to hang precariously above
the plaintiff’s land, thereby creating a potential source of danger to the plaintiff; or to allow smoke,
noise, gas, fumes e.t.c. to escape onto the plaintiff’s land thereby inconveniencing him e.t.c.. In
Hollywood Silver Foxes v. Emmett, (1936), the plaintiff was a breeder of silver foxes, which were
very sensitive to any disturbance during breeding seasons. The defendant was developing the
neighbouring land as a housing estate and thought that the plaintiff’s business might discourage his
customers. He instructed his son to fire a gun near the fox cages. The son did so and after four days
the plaintiff sued. Held: The act of the defendant through his son amounted to a nuisance.
Public Nuisance:
Public nuisance is also known as common nuisance. It affects the comfort and convenience of a class
of persons but not necessarily every member of the public. Thus the obstruction of a highway is a
public nuisance, and also a music festival accompanied by large scale noise. It is also a public nuisance
to do any act which is a source of danger to the public e.g. releasing a large quantity of petrol onto the
highway. In all these cases, it is not the private rights of an individual of the community around or the
public at large.
From what is stated above, it is clear that it would not be reasonable to allow an individual to bring an
action to stop the nuisance. Indeed, a public nuisance is generally a criminal offence and only the
Attorney General may bring an action against the wrongdoer. However, in exceptional the person
creating such an act of nuisance, if he can prove that he has suffered some special damage over and
above that suffered by the general public. In Soltan v. De Held, (1851), the plaintiff resided next to a
Roman Catholic Chapel. the defendant, a priest, took it upon himself to ring the chapel bell throughout
the day and night. The plaintiff brought an action to stop it. Held: The ringing of the bell was a public
nuisance but since the plaintiff’s house was next to the chapel he suffered more than the rest of the
community and was therefore entitled to bring an action to stop it.
Continuing Wrong:
Generally, nuisance is actionable only when it is a continuing wrong. A disturbance or inconvenience
on an isolated occasion will not ordinarily be treated as a nuisance: in Bolton v. stone, (1951), the
plaintiff, while standing on the highway just outside her home, was injured by a cricket ball struck
from the defendant’s ground which adjoined the highway. The ground had been used for cricket for
over 80 years and it was very rare for balls to be hit over the fence, which was 10 feet high above the
highway and 17 above the pitch. The ball had traveled over 100 yards before hitting the plaintiff. Held:
An isolated act of hitting the cricket ball onto the highway in circumstances like those of this case
could not amount to a nuisance.
It is only in very exceptional circumstances that an isolated act may entail liability in nuisance. an
example of this is afforded by Rylands V. Fletcher where, as we saw above, water escaped only on one
occasion causing damage to the plaintiff’s mine. The Plaintiff in Nuisance Since private nuisance
generally covers only damage to property to its enjoyment, the plaintiff in an action brought to remedy
a nuisance must show thathe has title to, or at least some interest in the property which is alleged to
have been damaged or whose enjoyment is alleged to have been affected by the nuisance, Otherwise,
the action will not succeed. In Malone V. Laskey, (1907) a bracket supporting a water tank in a house
feel down by reason of vibrations caused by the defendant’s engine in adjoining premises, and the
plaintiff was injured. The plaintiff had no interest in the premises; she merely resided with her husband,
who was manager of the company that had leased the premises. Held: The working of the engine was
a nuisance, but the plaintiff could not recover anything as she had no interest in the premises.
The law of nuisance protects only ordinary or normal persons. A plaintiff who is abnormally sensitive,
e.g. because of old age or heart as no special protection and cannot recover in nuisance for which a
normal person would not have suffered. Similarly, a person who has put his premises to a use or trade
which is delicate or sensitive cannot recover in nuisance where it is proved that the suffered would not
have arisen if the premises had been put in ordinary use or trade: in Robinson sources and grounds
whereof are stated herein.. Kilvert, (1988). The plaintiff carried on an exceptionally delicate trade in
which he used an equally delicate stock of paper. This stock of paper was damaged by heat from the
defendant’s premises below. The heat was required for the defendant’s business of paper or
manufacture. Held: The plaintiff could not recover in nuisance as the damage would not have occurred
if he were carrying on an ordinary trade: and in any case the defendant’s use of his property was
reasonable.
The Defendant in Nuisance:
The person liable in nuisance is primarily the occupier of the premises which are the source of the
nuisance, including a tenant; liability does not necessarily fall on the owner of the premises, although
he too may be successfully sued: in Mint V. Good (1951), a boy of 10 years was walking along a public
footpath when collapsed on him and injured him. The defendant, the owner of the premises from which
the wall collapsed, had let the premises in question to tenants; but the plaintiff sued the defendant
himself. Held: The defendant was liable.
Adopted Nuisance:
Where a nuisance is caused by one person but is adopted by another, the person so adopting it is liable
and cannot plead that the nuisance was not created by him: in Sedleigh-Denfield V O’Callaghan,
(1940), a trespasser placed pipe in a ditch which was on the defendant’s land, without the knowledge
or consent of the defendant. The pipe was meant to carry off rain and all is downwash. When the
defendants became aware of the pipe they used it to drain their own field. Subsequently the pipe
became blocked and the water overflowed onto the plaintiff’s land. Held: The defendants were liable
in nuisance, because they had adopted the trespasser’s act as their own.
Defences:
 De Minimis Non Curat Lex (or Triviality) - A person aggrieved by a nuisance can only maintain
an action where the damage suffered is so trivial, minor or negligible that no reasonable person
would have cause to complain , no such action may be maintained; and if sued the defendant may
plead ‘de minimis no curat lex’
 Reasonable Use of Property: If the defendant can prove that the nuisance complained of resulted
from a reasonable use of his property, as in Robinson V. Kilvert discussed above, this will to some
extent afford him a defence. But this defence is not available where, as in Hollywood Silver Foxes
V. Emmett (see above) the defendant’s act is proved to have been motivated by malice. Note:
whether the use towhich the property was reasonable in the circumstances is determined from the
standpoint of the victim of the nuisance,because the essence of this tort is that no person ought to
be wrongfully disturbed in the use and enjoyment of his land.
 Prescription: A prescription right to continue a nuisance is acquired after twenty years. Thus, where
a nuisance has been committed on the plaintiff’s land form a continuous period of twenty years,
the plaintiff cannot thereafter maintain an action in respect of the nuisance; and if he does, the
defendant may plead prescription in defence.
 Public Benefit: Public benefit, as a defence to an action brought to remedy a nuisance, has only a
limited application. Private rights must generally be respected. The only exception is where there
is statutory authority to derogate from such rights. But even then there is need to act reasonably
and within the statutory limit’ otherwise the person acting will be liable in nuisance,
notwithstanding that his act was intended to benefit the public. Thus, where an authority had
general powers to provide hospitals and it set up a fever hospital in a heavily populated area, it was
held liable to people in the neighbourhood (the hospital could have conveniently been set up
elsewhere): Metropolitan Asylum District V. Hill (1891).
 General Defence:
Remedies:
Abatement: This remedy is by way of self-help. A person aggrieved by a nuisance is at liberty to abate
(or stop) it. But the act of abatement must be peaceful and, where feasible, after notice to the tortfeasor,
otherwise, by a dramatic turn of events, the aggrieved party might, in attempt to abate nuisance, render
himself liable in nuisance instead! In Chrisstle V. Aveyl (1893), the plaintiff used to conduct music
lessons in his rooms, which was adjacent to the defendant’s. The defendant, who was annoyed by the
disturbance, continuously banged the partitioning wall so as to disrupt the plaintiff’s music lessons.
Held: The plaintiff was entitled to an injunction to restrain the defendant from interrupting the music
lessons.
Injunctions: This is a remedy which is granted to the plaintiff to restrain the defendant from
committing the nuisance. It is awarded where the nuisance already exists or is impending.
Damages: By this remedy, the plaintiff is entitled to full compensation in monetary terms, so as to
make good the damages caused by the defendant’s nuisance; as far as money can do it. But the plaintiff
can only recover what was reasonably foreseeable as likely to result from the defendant’s act. In this
connection, regard must be had to the gravity of the nuisance and the extent to which the defendant’s
act can be said to have been unreasonable, or wrongful. In Davey V. Hurrow Corporation, (1958) The
plaintiff’s house was damaged by the penetration of roots which came from trees on the adjoining land
of the defendants. The plaintiff brought an action for damages nuisance. Held:
TRESPASS
Trespass can be understood in the following three contexts or types;
1. Trespass to land
2. Trespass to person
3. Trespass to goods
Trespass isn't simply the unauthorised entry into someone's property without permission, such
definition limits the term to land and chattel. Trespass, specifically, is a negligent or intentional act
made by individual that causes injury to another person or his/her property without lawful justification,
no matter how slight. The use of the term "injury" here means a violation of one's right and not
necessarily actual physical harm or loss. Generally speaking, trespass possesses four elements. These
are the following:
 The fault must be an intentional or negligent act.
 The harm must be of direct interference with the person or property.
 The injury is inflicted on the plaintiff or his or her property.
 There is no lawful justification
TRESPASS TO LAND
This occurs whenever a person’s (plaintiff) possession in land is wrongfully interfered with. The key
thing here is possession and not necessarily ownership and as such the plaintiff can be the owner or
the tenant. It occurs in three ways;
i. Trespass by wrongful entering on the plaintiff’s land. E.g, encroaching, walking through the
land or putting your hand through their window without their permission
ii. Trespass by remaining on the land, that is, a person who, having been initially authorized to
enter upon land, is later asked to leave it and he fails to do so in reasonable time he is said to
trespass by remaining on the land.
iii. Trespass by placing things on the land. It’s worth noting that this trespass is different from
nuisance in that;
a. The thing place on the land directly affects the plaintiffs procession unlike nuisance which
affects how they enjoy the property
b. Nuisance unlike trespass is concerned with enjoyment and not possession
c. Trespass to land is actionable per se, that is actionable without proof of injury unlike
nuisance
Note- each time one repeats a trespass (continuing trespass) the court allows for fresh lawsuit.
Defenses
The main defences to an action for trespass to land are as under:-
a. Prescription - Land acquired by possession is also said to been acquired by prescription .The new
owner may plead title by prescription as a defence to an action brought by previous owner to
recover the land. A defendant may also plead prescription, as by proving aright of common grazing
or right of way over the Plaintiff’s land.
b. Act of Necessity - The necessity may be pleaded as a defence to an action of trespass to land e.g.
entry to put out fire for public safety
c. Statutory Authority - Where the authority is conferred by law, whether by statute or by court
order, this is also an available defence e.g. the authority of a court broker
d. Entry by licence - An entry authorized or licensed by the plaintiff is not actionable in trespass
unless the authority or license given is abused.
Remedies
The remedies in respect of trespass to land include:
 Damages - The plaintiff may recover monetary compensation from the defendant. The extent of
which depends on the effect of the dependant’s act on the value of the land in question.
 Ejection - We saw earlier on that a person is entitled to use reasonable force to defend his property.
Thus, where a person wrongfully enters or remains on another’s land, he may be ejected using
reasonable force may entail liability for assaults an ejectment may also be based on a court order
(an eviction order)
 Action for recovery of land - The plaintiff may bring an action to recover his land from the
defendant Where there has been a wrongful dispossession, it is commonfor such action to be
coupled with the above two remedies.
 Injunction - In addition to the above remedies, an injunction may be obtained to ward off a
threatened trespass or to prevent the continuance of an existing one
 Distress Damage Feasant - In the case of trespass by placing things on land (or in the case of
chattle trespass) the plaintiff has a right To detain the defendant‘s chattel or animal which is the
cause of the trespass in question.
TRESPASS TO THE PERSON
This trespass just like trespass to goods also occurs in three ways;
a) ASSAULT - This occurs when a person intentionally threatens to use force against another person
without lawful justification hence putting the person in fear. E.g pointing a gun towards him
Rules of the Tort
a. There must be some apprehension of contact
b. There must be a means of carrying out the threat by the defendant
c. The tort is actionable per se.
d. The tort is generally associated with battery
e. Mere words without body movement do not constitute assault.
Assault is constituted by:-
 A display or show of force
 Pointing of a loaded gun
 Cursing in a threatening manner
b) BATTERY - This is the actual use of force towards another person without lawful justification
e.g. hitting a person. It is only actionable if it is voluntary or intentional.
Intention - Assault is committed where the plaintiff apprehends the commission of a battery on his
person. If the defendant does not intent to commit a battery but induced a belief in the plaintiff‟s mind
that he is about to do so, he is nevertheless liable for assault. Pointing a loaded gun at a person is of
course an assault but if the gun is unloaded it is still assault unless the person at whom it is pointed
knows this.
Apprehension - Suppose the plaintiff is an unusually fearful person in whom the defendant can induce
the fear of an imminent battery though a reasonable man would not have fear in those circumstances,
does the defendant commit assault?
The better view is that the test is based upon the subjective intention of both parties thus there is battery
if the defendant intends to create fear of commission of a battery whether or not he knows the plaintiff
to be a fearful person and the plaintiff actually has this fear. In Smith vs. Superintendent of Working
Police Station (1983), the defendant was convicted of criminal assault when he entered the grounds of
a private house and stood at the window seriously frightening its occupant who was getting ready for
bed. The plaintiff must however apprehend a battery thus it is not assault to stand still at the door of a
room barring the plaintiff’s entry. It would also not be assault to falsely cry „fire‟ in a crowded place.
Must damages be proved?
Both torts of assault and battery are actionable per se. Where the defendant’s act has caused no damage
the courts may award only nominal damage but the court may also award aggravated damages because
of the injury to the feelings of the plaintiff arising from the circumstances of the commission of the
tort.
Rules of battery
 Absence of the plaintiff’s consent
 The act is based on an act of the defendant mere obstruction is not battery
 A contact caused by an accident over which the defendant has no control is not battery
 There must be contact with the person of the plaintiff it has been observed the least touching
of another person in anger is battery
 Battery must be direct and the conduct must follow from the defendant’s act
 The tort is actionable per se. The essence of battery is to protect a person from unpermitted
contacts with his body. The principal remedy is monetary award in damages.
FALSE IMPRISONMENT
This occurs when a person is deprived of their freedom without legal explanation, e.g locking someone
in a room.
Main ingredients of the tort
a. Knowledge of the plaintiff - Knowledge of the restraint is not necessary but may affect the
quantum of damages. In Meeting v. Graham White Aviation Co the plaintiff was being questioned
at the defendants company in connection with certain thefts from the defendants company. He did
not know of the presence of two works police outside the room who would have prevented his
leaving if necessary. Held; the defendant was liable for false imprisonment. Arcing L J said “it
appears to me that a person can be imprisoned without his knowing. I think a person can be
imprisoned while he is asleep or in a state of drunkenness, while unconscious or while he is a
lunatic. Of course the damages might be diminished and would be affected by the question whether
he was conscious or not‟
b. Intention and directness - The tort is defined to exclude negligent imprisonment of another person.
The tort must be intentional and should be committed directly. Where for reason of lack of intention
or directness the plaintiff cannot establish false imprisonment an action in negligence may still be
available. In Sayers v. Badour U.D.C the plaintiff became imprisoned inside the defendant’s toilet
because of negligent maintenance of the door lock by the defendant’s servants. In trying to climb
out of the toilet she fell and was injured. She recovered damages from the defendant because it was
a reasonable act on her part to escape from a situation in which the defendant by his negligence
had placed her. An action for false imprisonment would not have been available because there was
no direct act of imprisonment.
c. The restraint must be complete - There must be a total restraint placed upon the plaintiff’s freedom
of action. In Bird v Jones the defendant closed off the public footpath over one side of a bridge.
The plaintiff wishing to use the footpath was prevented by the defendant. In the plaintiffs action
one of the questions that was necessary to decide was whether the defendant’s act amounted to
false imprisonment. Held: It did not since the defendant has not placed a total restraint on the
plaintiff. The blocking of a part of a public highway might be a public nuisance for which the
plaintiff could bring an action in tort if he could show special damage arising from. Provided the
area of restraint is total it does not seem to matter that it is very large. There has been a difference
of opinion between the court of appeal and the lower court the circumstances in which a person
already the lawfully imprisoned in a prison may be regarded as falsely imprisoned. In R v. Deputy
Governor of Prison, there was an agreement that imprisonment under intolerable conditions would
amount to false imprisonment. The Court Of Appeal however required knowledge of those
 conditions by the defendant but the lower courts thought that a defense would exist here under the
provisions of the prisons Act. There is of course false imprisonment where a prisoner is detained
beyond the legal date of his release. (Cowell v. Corrective Services Commissioner)
Rules of the tort
i. The tort must be intentional
ii. It is immaterial that the defendant acted maliciously
iii. The restraint or confinement must be total. However, it need not take place in an enclosed
environment
iv. It has been observed every confinement of a person is an imprisonment whether it be in a
common prison, private house or in the stocks or even forcibly detaining one in the public
v. The boundary of the area of confinement is fixed by the defendant. The barriers need not be
physical. A restraint affected by the assertion of authority is sufficient.
vi. The imprisonment must be direct and the plaintiff need not have been aware of the restraint
vii. The tort is actionable per se.
viii. The principal remedy is a monetary award in damages.
Defences
a. A parental Authority - A parent has a right to reasonably chastise or discipline his Children. This
means that where a parent beats his child or locks Him up in roomfor sometime by way of
reasonable chastisement, he cannot be sued for battery or false imprisonment .Similarly, if a parent
gets a knife and threatens that he will cut off his child’s mouth unless the child stops abusing
grown-ups, no action can be brought against him for assault When a child is at school all his
parent’s right of ordinary control over him Are delegated to the school authority (or teachers) and
are exercised by the Latter in ‘loco parents ‘.Reasonable chastisement by the school authority. e.g
Reasonable punishment by teachers ,is not actionable in tort. Note: According to R.v (1891) a
husband has no right to chastise
b. Judicial authority: An act done under order of court is not actionable as trespass. We show at the
beginning of this chapter that acts done in a judicial Capacity are not actionable in tort. It follows
that where a judge orders a corporal punishment of a number of strokes, no action for battery can
be brought against him or a person administering the strokes .Also, statutory authority may be
pleaded as a defence
Remedies
 Damages: An award of damages iii General Defences the defendant may also rely on the general
defences already considered. Self-defence is a particularly viable defence to assault and battery.
Volenti (or the plaintiffs consent),may also be pleaded Thus, a patient who has consented to a
medical operation cannot round and sue the surgeon for trespass (battery ).Similarly ,a spectator
who suffers injury in the cause of a game whose rules are being followed cannot sue for trespass
is the most obvious and usual remedy. The amount of damages awarded depends on the
circumstance of each case, having regard (or in the case). The amount of damages awarded depends
on the circumstances of each case, having regard to matters like the injury suffered, the period of
false imprisonment e.t.c.
 Habeas Corpus: The Writ of Habeas Corpus is a remedy to false imprisonment. The writ directs
the person in show custody the applicant is detained to produce him before the High Court; the
Court may order his release if it appears that there are not sufficient grounds for detaining him.
PROTECTION OF CHATTELS OR GOODS
Owners of goods are entitled to enjoy their possession and control and their use without any
interference. To protect goods the common law developed 3 torts namely;
 Detinue
 Trespass to goods
 Conversion
DETINUE
This is the unlawful detention of goods. It is the oldest tort relating to the protection of the chattels and
protects possession of goods by the owner. The plaintiff must prove:-
a. Right to immediate possession
b. That the defendant detained the goods after the plaintiff demanded their return. The plaintiff is
entitled to damages for the detention.
TRESPASS TO GOODS
This is the intentional or negligent interference of goods in possession of the plaintiff. This tort protects
a party interest in goods with regard to retention their physical condition and invariability.
Types/forms of trespass
 Taking a chattel out of the possession of another
 Moving a chattel
 Contact with a chattel
 Directing a missile to a chattel
Rules/requirements of the tort
 The trespass must be direct
 The plaintiff must be in possession of the chattel at the time of interference
 The tort is actionable per se
 The principal remedy is a monetary award in damages
The defenses available to this tort include:-
 Plaintiff’s consent
 Necessity
 Mistake
CONVERSION
This is the intentional dealing with goods which is seriously inconsistent to possession or right to
possession of another person. This tort protects a person’s interest in dominion or control of goods.
The plaintiff must have possession or the right to immediate possession. However, a bailee of goods
can sue 3rd parties in conversion so cans a licensee or a holder of a lien or a finder. Any good or chattel
can be the subject matter of conversion. There must be physical contact resulting in interference with
the goods.
Acts of conversion
Taking goods or disposing; it has been observed that to take a chattel out by another’s possession is to
convert it or seize goods under a legal process without justification is conversion.
a. Destroy or altering
b. Using a person’s goods without consent is to convert them
c. Receiving: the voluntary receipt of another’s goods without consent is conversion.
DEFAMATION
This constitutes publication of false statement about a person which ends up lowering the person’s
reputation in the estimation of right-thinking members of society, without justification.
Elements of defamation
a. The defendant must have made a false statement
b. The statement must be defamatory, that is, arouse some form of ridicule or contempt from the
right thinking members of the society
c. The statement must refer to the plaintiff
d. The statement must be made public
Types of defamation
The tort of defamation is of 2 kinds:
 Libel
 Slander
a. Slander
This is a non-permanent form of defamation, usually by word of mouth. This kind of defamation is
actionable upon proof of damage. Though there are some exceptions such as;
 Where the statement imputes a criminal offence punished by imprisonment
 Where the statement imputes a contagious disease on the plaintiff
 Where the statement imputes unchastity on a woman
 Where the statement imputes incompetence on the plaintiff in his trade, occupation or
profession
b. Libel
This is a permanent form of defamation in the sense that the statement is printed or documented. It is
actionable per se, that is, without proof of damage. Note; defamation made in relation to a group isn’t
always actionable e.g all lawyers are liars. This is different if you say students in school x are liars coz
then they can sue
There are however clear differences between Libel and Slander;
 Libel is defamation in permanent form whereas Slander is defamation in transient form.
 Libel is not merely actionable as a tort but is also a criminal offence whereas Slander is a civil
wrong only.
 All cases of Libel are actionable per se but Slander is only actionable on proof of actual damage
with 4 exceptions under the Defamation Act, which are actionable per se.
CASES OF SLANDER THAT ARE ACTIONABLE PER SE:
1. Imputation of a Criminal Offence - Where the defendant makes a statement, which imputes a
criminal offence punishable with imprisonment under the Penal Code, then such Slander will be
actionable per se. There must be a direct imputation of the offence and not merely a suspicion of it
and the offence must be punishable by imprisonment in the first instance. If the Slander goes into
details of the offence, it is not actionable per se if the details are inconsistent with another.
2. Imputation of a contagious or infectious disease - This is actionable per se as it is likely to make
other people to shun associating with the plaintiff. This exception always includes sexually
transmitted diseases and in olden times the diseases of plague and leprosy.
3. Imputation of unfitness, dishonesty or incompetence in any office, profession, calling, trade or
business held or carried on by the plaintiff at the time when the Slander was published This is the
most important exception under the Defamation Act, 1952 (English) Section2 provides “in an
action of Slander in respect to words calculated to disparage the plaintiff in any office, profession,
calling, trade or business held or carried on by him at the time of publication, it shall not be
necessary to allege or prove special damage whether or not the words are spoken of the plaintiff in
the way of his office, calling, trade or business.” It follows that any words spoken of a man which
are reasonably likely to injure him in his office, profession, calling, trade or business will be
actionable per se. It matters not how humble the office may be, so long as it is lawful.
4. Imputation of unchastity or adultery of any woman or girl - Words spoken and published which
impute unchastity or adultery to any woman or girl shall not require proof of special damage to
render them in actionable. In Kerr v. Kennedy, the court was of the opinion that the term
“unchastity” includes lesbianism.
Defenses
 Justification or pleading that it’s the truth
 Fair comment made as a matter of public interest
 Absolute privileges- certain statements such as those made by judges in courts are not
actionable since they are said to be absolute privilege
 Qualified privilege – when a person who makes the communication has a moral duty to make
it to another person who is interested in hearing it, this is qualified privilege e.g a preacher call
the congregation sinners during a service
  Offer of amends or apology
Remedies
 Damages
 Apology
 Injunction to stop it
OCCUPIERS’ LIABILITY
Occupiers' liability generally refers to the duty owed by land/premise owners to those who come onto
their land. However, the duty imposed on land/premise owners can extend beyond simple land
ownership and in some instances, the landowners may transfer the duty to others, hence the term
occupier rather than owner. The law relating to occupiers' liability has distinct English origin;
 Occupiers‟ liability act 1957- which imposes an obligation on occupiers with regard to 'lawful
visitors'
 Occupies‟ liability act 1984- which imposes liability on occupiers with regard to persons other
than 'his visitors'
In Kenya the law relating to this is contained in The Occupiers‟ Liability Act (cap.34).
What is expected of the occupier?
1. The occupier owes common duty of care to all of his visitors, i.e. “The common duty of care is to
take such care as in all the circumstances of the case is reasonable to see that the visitor will be
reasonably safe in using the premises for the purposes for which he is invited or permitted by the
occupier to be there.”
2. Visitors are persons who have express or implied permission to enter or use the premise of a person.
Lawful visitors to whom occupiers owe the common duty of care for the purposes of the Occupiers
Liability
a. Invitees - those who have been invited to come onto the land and therefore have express
permission to be there
b. Licensees - those who have express or implied permission to be there
c. Those who enter pursuant to a contract - For example paying guests at a hotel or paying visitors
to a theatre performance or to see a film at a cinema.
d. Those entering in exercising a right conferred by law - For example a person entering to read
the electricity meters.
3. The standard of care varies according to the circumstances. The legislation refers to two particular
situations where the standard may vary:
 An occupier must be prepared for children to be less careful than adults
 An occupier may expect that a person in the exercise of his calling will appreciate and guard
against any special risks ordinarily incident to it
4. The occupier is not liable for the negligence of an independent contractor ones he is satisfied that
the contractor was competent.
5. The common duty of care does not impose on an occupier any obligation to a visitor who has
willingly accepted a risk.
Can the occupier be liable to persons other than his visitors?
At common law, The Occupiers Liability Act 1984 imposes a duty on occupiers in relation to persons
“other than his visitors”. This includes trespassers and those who exceed their permission, though a
low level of protection is offered.
The circumstances giving rise to a duty of care. If all three of these are present the occupier owes a
duty of care to the non-lawful visitor.
1. He is aware of a the danger or has reasonable grounds to believe that it exists
2. He knows or has reasonable grounds to believe the other is in the vicinity of the danger or may
come into the vicinity of the danger
3. The risk is one in which in all the circumstances of the case, he may reasonably be expected to
offer the other some protection
In White v Blackmore (1972), Mr White was killed at a Jalopy car race due negligence in the way the
safety ropes were set up. A car crashed into the ropes about 1/3 of a mile from the place where Mr
White was standing. Consequently, he was catapulted 20 foot in the air and died from the injuries
received. Mr White was a driver in the race but at the time of the incident he was between races and
standing close to his family. He had signed a competitors list which contained an exclusion clause.
There was also a warning sign at the entrance to the grounds which stated that Jalopy racing is
dangerous and the organizers accept no liability for any injury including death howsoever caused. The
programme also contained a similar clause. His widow brought an action against the organizer of the
event who defended on the grounds of volenti and that they had effectively excluded liability. Held:
The defence of volenti was unsuccessful. Whilst it he may have been volens in relation to the risks
inherent in Jalopy racing, he had not accepted the risk of the negligent construction of the ropes.
However the defendant had successfully excluded liability (Lord Denning MR dissenting) Lord
Denning MR: "The Act preserves the doctrine of volenti non fit injuria. It says in Section 2(5) that:
"the common duty of care does not impose on an occupier any obligation to a visitor in respect of risks
willingly accepted as his by the visitor".No doubt the visitor takes on himself the risks inherent in
motor racing, but he does not take on himself the risk of injury due to the defaults of the organisers.”
Defenses
1. Volenti non fit injuria- the common duty of care does not impose an obligation on occupiers in
respect of risks willingly accepted by the visitor.
2. Contributory negligence-Damages may be reduced where the visitor fails to take reasonable
care for their own safety.
3. Exclusion of liability-allows an occupier to extend, restrict, exclude or modify his duty to
visitors in so far as he is free to do so.
4. The occupier employed a competent independent contractor
GENERAL DEFENSES IN TORTS
If one sues the other claiming that the other person has violated his rights and in so doing has committed
a tort, then certain defenses are available to the defendant. The extent to which they apply against
different torts, may, however, differ. Some of the defenses which can be used in torts are:
a. Volenti non Fit Injuria
b. Inevitable Accident
c. Act of God
d. Self-defence
e. Mistake.
f. Necessity
g. Statutory Authority
1. Volenti Non Fit Injuria
This refers to „voluntary taking of a risk'. It's when a person chooses to be in the situation that causes
the injury. For example, suppose you are a spectator at a cricket match , the batsman hits a six, and the
ball lands on your head, then you cannot claim for compensation either from the stadium authorities
or the batsman because when you took a seat in the stadium, you accepted the risks while sitting in the
stadium. Therefore if the defendant can prove that the plaintiff voluntarily put himself in that situation,
he can escape liability.nThe most important thing to remember is that the action must be voluntary i.e.
with the informed consent of the relevant person. There are two things which should be established in
order to use this defense.
a. That the plaintiff knew or could have expected the risks involved in such a situation.
b. That the person agreed by a statement or conduct, to suffer the consequence of the risk without
force or compulsion or threat.
In Khimji v. Tanga Mombasa Transport Co. Ltd. (1962), the plaintiffs were the personal
representatives of a deceased who met his death while traveling as a passenger in the defendant’s bus.
The bus reached a place where the road was flooded and it was risky to cross. The driver was reluctant
to continue the journey but some of the passengers, including the deceased, insisted that the journey
should be continued. The driver eventually yielded and continued with some of the passenger,
including the deceased. The bus got drowned together with all those aboard it. The deceased’s dead
body was found the following day. Held: The plaintiffs’ action against the defendants could not be
maintained because the deceased knew the risk involved and assumed it voluntarily and so the defence
of volenti non fit injuria rightly applied. Apart from instances like those of the above case, the defence
of ‘volenti’ has been pleaded in a number of situations, including the followings:
 A passenger injured by the act of a driver whom he knew to be under the influence of drink at
the material time.
 A spectator at a game, match or competition injured by the act of the players of participants.
 A patient injured by the act of his surgeon, where the patient has consented to the operation.
The viability of the defence depends on the circumstances of each case; otherwise the consenting party
does not, by his consent, necessarily give an open cheque to the other party to act negligently, high-
handedly or in any manner he pleases. In Haynes v. Harwood, (1935), the defendant’s servant left a
van and horses unattended in a crowded street. A boy threw a stone at the horses and they bolted. This
exposed a woman and some children nearby to some grave danger. The plaintiff, a police constable,
managed to stop both horses; but he did so at great personal risk and in fact sustained severeinjuries.
In an action brought against him, the defendant pleaded volenti.
Held:
 The doctrine of country assumption of risk did not apply because the plaintiff, in rescuing the
persons in imminent danger, had acted under an emergency caused by the defendant’s wrongful
act.
 It was immaterial that the persons to be saved were strangers, and the defendants were liable.
2. Inevitable accident
When an injury is caused to a person by an event that could not be foreseen and avoided despite
reasonable care on the part of the defendant, the defense of inevitable accident can be used. For
instance, by „inevitable' it is not meant that the accident was bound to happen, but rather, that the
accident could not have been avoided despite reasonable care. In Stanley v. Powell, (1891) the plaintiff
was employed to carry cartridges for a shooting party. A member of the party fired at a pheasant but
the bullet, after hitting a tree, rebounded into the plaintiff’s eye. The plaintiff sued. Held: the defendant
was not liable as the plaintiff’s injury resulted from an inevitable accident.
3. Act of God
This defense is similar to the defense of inevitable accident according to me. The only difference is
that in the defense of Act of God the accident happens to occur because of unforeseen natural event.
The requirements which are to be satisfied are
a. The injury most be caused by the effect of natural forces
b. The natural forces must be unforeseen, or the effects must be unavoidable.
So even if a natural event like a storm is taking place, if one can take precautions and avoid the damage,
the defense cannot be used. In Nichols v. Marsland, (1876) the defendant had a number of artificial
lakes on his land. An unprecedented rain such as had never been witnessed in living memory caused
the banks of the lakes to burst and the escaping water carried away four bridges belonging to the
plaintiff’s bridges were swept by act of God and the defendant was not liable.
4. Self defense
If one injures someone, or something that belongs to someone else, while defending self or own
property, then one can be excused if the force used to protect self was reasonable. For instance, if
someone punches you on stomach and you shoot him that would be an excessive use of force which is
not necessary for defending yourself. The following must be satisfied in order to claim this defense:
a. The defendant must be under threat or under attack
b. The defense must be for self-defense and not for revenge
c. The response must be proportional to the attack or threat.
The principle for this is that the law will not hold you responsible for an action that you performed in
order to save or protect yourself. If, however, it was not necessary to use force for protection, the law
will not protect, and you can't use this defense. In Cresswell v. Sirl, (1948) a dog owned by plaintiff,
C, attacked during the night some ewes lambs owned by S. The dog had just stopped worrying the
sheep and started towards S, who shot it when it was 40 yards away. C sued for trespass to goods (dog).
Held: S was justified in shooting the dog if
a. It was actually attacking the sheep; or
b. If left the dog would renew the attack on them, and shooting was the only practicable and
reasonable means of preventing revival. The onus on justifying the trespass lay on the
defendant.
An occupier of property may also defend his property where his interest therein is wrongfully interfered
with. Once again, reasonable force must be used in the defence of property. A trespasser, for instance,
may be lawfully ejected using reasonable force. The use of force which is not called for in the
circumstances entails legal liability on the part of the person purporting to defend his property.
5. Mistake
Mistake is not usually a defense in tort law. It's not good enough to say that you didn't know you were
doing something wrong. This defense can be used in case of malicious prosecution. In malicious
prosecution it must be shown that the prosecution was acting with malice.
6. Necessity
In necessity, you have to show that the act you did was necessary in the circumstances. For instance,
if one enters someone's private land in order to collect water from his well to put out a fire in his house,
that the person was prompted by necessity and the defense could be used in tort claim and it could be
used against trespass of property. The level of necessity should be very high. Basically the wrong done
should be smaller in comparison to the importance of right done. In Cope v. Sharpe (1912), The
defendant committed certain acts of trespass on the plaintiff’s land in order to prevent fire from
spreading to his master’s land. The fire never in fact caused the damage and would not have done so
even if the defendant had not taken the precautions he took. But the danger of the fire spreading to the
master’s land was real and imminent. Held: The defendant was not liable as the risk to his master’s
property was real and imminent and a reasonable person in his position would have done what the
defendant did. In view of the difficulty posed by the above defence, it is not advisable for a defendant
to rely solely on it, especially where there are other defences. It is safer to plead it as an alternative to
another defence.
7. Act under Statutory Authority
This defense is valid if the act done was under the authority of some statute. For example, if there is a
railway line near your house and the noises of the train passing disturbs then you have no remedy
because the construction and the use of the railway is authorized under a statute. However, this does
not give the authorities the license to do what they want unnecessarily; they must act in a reasonable
manner. In Voughan v. Taff Vale Railway Co. (1860) A railway Company was authorized by statute
to run a railway which traversed the plaintiff’s land. Sparks from the engine set fire to the plaintiffs
woods. Held: that the railway company was not liable. It had taken all know care to prevent emission
of sparks. The running of locomotives was statutorily authorized.
CAPACITY TO SUE OR BE SUED IN TORT
The general rule is that any person may sue or be sued in tort. All persons are subject to the same laws.
However, some special rules apply in certain circumstances which restrict, forbid or qualify the right
to sue or be sued. It means certain persons cannot sue, while some other persons cannot be sued.
Capacity means the capacity of parties or persons to sue or to be sued in law of torts. The capacity of
various persons in the law of torts is explained as under:
The Government
The Government Proceedings Act (Cap 40) makes the Government subject to liabilities in tort as if it
were a private person mf full age and capacity. Section 4 (1) of this Act provides that the Government
is liable.
a. in respect of torts committed by its servants or agents;
b. in respect of any breach of those dutie3 which a person owes to his servants or agents at
common law by reason of being their employer; and
c. In respect of any breach of the duties attaching at common law to the ownership, occupation,
possession or control of property.
The Government is also liable for statuary torts i.e. torts arising from breach of a duty imposed by
statute. However, the Government is not liable for anything done by any person when discharging any
responsibilities of a judicial process (Sec. 4 (5).The Government is not also liable for trots committed
by public officers who are appointed and paid by local authorities, or members of public corporations
like Kenya Railways, Maize and Produce Board of Kenya e.t.c. Infants and Minors
At a general rule minority is no defense in tort. Infants can sue and `e sued in the same way as any
other person. However, the age of an infant may be relevant in some torts where intentions, malice, or
negligence of the wrongdoer are the main cause of the tort. In the case of negligence, the infant may
not have reached the stage of mental development where it could be said that he should be found legally
responsible for his negligent acts. A child may be also guilty of negligence if old enough to take
precautions for his own safety. In Burnard v. Haggis, (1863) A minor hired a horse for riding and was
told by the owner not to jump over it. But he jumped the horse and injured it. Held: The minor was
liable for his tort which was of independent of the contract.Generally, a parent or guardian is not liable
for the torts of his children unless he authorizes the tort. But a parent or guardian is liable for torts
committed by children in negligence.
In Bebee v. Sales, (1916) A parent permitted his son aged 15 to remain in possession of a shotgun,
with which the son had already caused harm and in respect on which complaints had been made. Held:
the father was liable for injury to another boy’s eye
Husband and Wife
The position of husbands and wives in tort is covered by two English statutes. These are: the Married
Women’s Property Act 1882 and the Law Reform (Married Women and Tortfeasors) Act, 1835. The
former Act is a statute of general application is Kenya. The latter statute applies in Kenya to the extent
of paragraphs (b) and (c) of question 1. A married woman is liable in tort and may sue or be sued in
tort in the same way as though she were a female sole (i.e. a single of unmarried woman). A wife can
sue her husband in tort for the protection of her own property.
The President
The Constitution of Kenya (Kenya 14) provides that the President of Kenya is not “liable to any
proceedings whatsoever in any court.”It means that no civil or criminal proceedings can be instituted
against the President while he is in office.
Heads of State and Diplomats
The Heads of foreign states, diplomats of foreign missions and certain other persons connected to them
are immune from the jurisdiction of the local courts. Their immunity is provided by the Vienna
Convention of Diplomatic Relations, signed in 1961, the relevant articles of which are given the force
of law in Kenya by “The Privileges and Immunities Act (cap. 179)”. The accredited diplomats and
their staff families enjoy immunity from the criminal and (subject to specified exceptions) from the
civil and administrative jurisdiction of the local courts. The immunity does not extend to Kenyans who
are employed by diplomatic missions. Representatives of the United Nations Organization and its
specialized agencies can also claim diplomatic immunity. Although the diplomats and their staff cannot
be sued under the law of tort but it is always open to the Ministry of Foreign Affairs to declare a
diplomat ‘persona non grata’, thereby requiring his removal from Kenya.
 Corporations
The corporations can sue and be sued in their own names. They are liable to actions in tort. A
corporation is also liable for torts committed by its servants and agents. But if a servant of a corporation
commits a tort which is ‘ultra vires’ (beyond powers) then the corporation is not liable. Similarly, a
corporation is not liable for some torts of personal nature e.g. personal defamation, battery e.t.c.
Trade Unions
The trade unions have capacity to sue in tort but actions against them in tort are limited. Section 23 of
the Trade Unions Act (Cap. 233) provides that no action shall be brought against a trade union for torts
committed by its members or officials in respect of any act done in contemplation or in furtherance of
a trade dispute. For example, if a trade union calls a strike, it cannot be sued by an employer for the
tort of inducing a breach of contract.
Persons of Unsound Mind
These are generally liable in tort unless intent is a necessary element and their condition is such that
they could not have formed such intent. In Morriss v. Marsden, (1952) the Defendant took room at a
Brighton hotel. While there he attacked the manager of the hotel (plaintiff). It was established that
defendant was suffering from disease of the mind at the time of the attack; that he knew the nature and
quality of his act, but he did not know that what he was doing was wrong. Held: That as defendant
knew the nature and quality of his act he was liable in tort for the assault and battery. It was immaterial
that he did not know that what he was doing was wrong.
Aliens or Non-Citizens
An alien is under no disability and can sue and be sued. However an enemy alien cannot sue, but if
sued can defend himself.
Judicial officers
Judicial officers are protected from civil liability for any act done or ordered by them in the discharge
of their judicial functions. Thus, where a judge or magistrate utters words which tend to reflect on a
person’s reputation, or orders a party’s property to be attached in satisfaction of a judgment-debt, no
action can respectively be brought against him for trespass. Besides judicial officers, officers of the
court are also protected against civil liability for acts done in pursuance of a judicial order or warrant.
This means that a court broker cannot be sued for attaching property under a warrant dully issued by
court, as long as he acts within the powers conferred on him by the warrant. The protection to judicial
officers and officer of court is afforded by the Judicature Act (cap.8) Section 6.
LIMITATION OF ACTIONS
Actions of Contract and Tort and Certain Other Actions
i. Actions of contract and tort and certain other actions
The following actions may not be brought after the end of 6 years from the date on which the cause of
action accrued—
a. actions founded on contract;
b. actions to enforce a recognizance;
c. actions to enforce an award;
d. actions to recover a sum recoverable by virtue of a written law, other than a penalty or forfeiture
or sum by way of penalty or forfeiture;
e. actions including actions claiming equitable relief, for which no other period of limitation is
provided by this limitations Act or by any other written law.
ii. An action founded on tort may not be brought after the end of 3 years from the date on which the
cause of action accrued:
iii. Provided that an action for libel or slander may not be brought after the end of 12 months from
such date
iv. An action for an account may not be brought in respect of any matter which arose more than 6
years before the commencement of the action.
 v. An action may not be brought upon a judgment after the end of 12 years from the date on which
the judgment was delivered, or (where the judgment or a subsequent order directs any payment of
money or the delivery of any property to be made at a certain date or at recurring periods) the date
of the default in making the payment or delivery in question, and no arrears of interest in respect
of a judgment debt may be recovered after the expiration of 6 years from the date on which the
interest became due.
vi. An action to recover any penalty or forfeiture or sum by way of penalty or forfeiture recoverable
by virtue of a written law may not be brought after the end of two years from the date on which the
cause of action accrued.
vii. This section does not apply to a cause of action within the Admiralty jurisdiction of the court which
is enforceable in rem, except that (i) above applies to an action to recover seamen’s wages.
Action for contribution from tortfeasor
Where under section 3 of the Law Reform Act (Cap. 26), a tortfeasor (in this section referred to as the
first tortfeasor) becomes entitled after the commencement of this Act to a right to recover contribution
in respect of any damage from another tortfeasor, an action to recover contribution by virtue of that
right shall not be brought after the end of 2 years from the date on which that right accrued to the first
tortfeasor. For the purposes of these rules, the date on which a right to recover contribution in respect
of any damage accrues to a tortfeasor shall be ascertained as follows—
a. if the tortfeasor is held liable in respect of that damage by a judgment given in civil proceedings
or by an award, the relevant date is the date on which the judgment is given, or the date of the
award, as the case may be;
b. if, in a case not falling within the above rule, the tortfeasor admits liability in favour of one or
more persons in respect of that damage, the relevant date is the earliest date on which the
amount to be paid by him in discharge of that liability is agreed by or on behalf of the tortfeasor
and that person, or each of those persons, as the case may be, and for the purposes of this
subsection no account shall be taken of any judgment or award given or made on appeal in so
far as it varies the amount of damages awarded against the tortfeasor.
c. extension of limitation period in case of disability does not apply to an action by virtue of this
section unless the plaintiff proves that the person under the disability was not, at the time when
the right to recover contribution accrued to him, in the custody of a parent, and where the
section does so apply it shall have effect as if the words “six years” there were replaced by the
words “two years”.
Successive conversions, and extinction of title to converted goods
 Where any cause of action in respect of the conversion or wrongful detention of movable
property has accrued to any person and, before he recovers possession of the property, a further
conversion or wrongful detention takes place, no action may be brought in respect of the further
conversion or detention after the end of three years from the accrual of the cause of action in
respect of the original conversion or detention.
 Where any such cause of action has accrued to any person and the period of limitation
prescribed for an action thereon and for an action in respect of such a further conversion or
wrongful detention as aforesaid has expired and he has not during that period recovered
possession of the movable property, the title of that person to the property is extinguished