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Other sources of law

1. African customary law

Followed as long as it does not contravene the constitution or any other law.
○ Dowry is an African customary law which is allowed as it doesn't contravene any law.
○ Marrying underage girls might be permissible in African culture but illegal with regards to the law.

The constitution says any law, including customary law, that is in conflict with the constitution is null and void and will not be
followed; the law cannot contravene the supreme law of the land.

2. Islamic law
Subset of law which is highly specialized and is based on the holy Quran.
It does not apply to non-Muslims; only presides over Muslims.
It is only used as a source of law when determining issues of marriage and inheritance among Muslims.
Because it is a highly specialized law, they have the Kadhi's court to solve issues.

3. Hindu Customs
Only apply in Hindu marriages and divorces.

The Judicial structure

1. Supreme court of Kenya(Article 163 C.O.K 2010)

Has seven judges, head being Chief Justice and assisted by the Deputy Chief Justice
Martha KOOME - CJ
Jurisdiction- what type of cases a court handles
The supreme court's jurisdiction is :
○ Presidential election petitions
○ interpretation of the constitution of Kenya
○ Appeals from the Court of Appeal on constitutional issues and those the Supreme Court deems to be of great public
importance

2. Court of Appeal(Article 164 C.O.K)

Any case listened to is presided over by a 3 judge bench
Listen to:
a. Criminal appeals
b. Civil appeals
c. Human rights issues from the high court

3. The High Court(Article 165)

Cases are only listened to by one judge
Has Divisions:
i. Criminal Division
ii. Civil Division
iii. Human Rights Division
iv. Judicial Division
v. Family Division

The environmental land court (ELC, Article 162 (2) (b))and employment and labour relations court(ELRC, Article 162 (2) (a)) do not

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 The environmental land court (ELC, Article 162 (2) (b))and employment and labour relations court(ELRC, Article 162 (2) (a)) do not
fall in the 5 divisions but are considered as high court
○ ELC deals with land disputes
○ ELRC deals with employment issues
○ Question: Can the above cases be taken to the court of Appeal? As in ELC and ELRC cases
Cases can start here or can appeal from a lower court.

4. The Magistrates court (Article 169 , COK)

• Chief Magistrate (20 Million)
○ Senior Principal Magistrate (15 Million)
 Principal Magistrate (10 Million)
□ Senior Resident Magistrate (7 Million)
 Resident Magistrate (5 Million)
• Pecuniary jurisdiction- Resident Magistrate cannot handle a case of more than 5 million, SRM 7 Million, PM 10 Million, SPM 15
Million, CM 20 Million. This applies for non-criminal cases
• Listen to civil and criminal cases
• Ongoing cases from here, no appeals allowed

4a. Small claims court

• Deals with small cases, from 0 KES to 1 million KES
• Any cases brought to this court should be concluded in 3 months

5 Kadhi's court
• Deals with Islamic cases on marriage, divorce and inheritance

6. Tribunals
• Established by acts of parliament, all others are established by the constitution
• Quasi-judicial function: They can hear and determine specific disputes; specific to the tribunal's function
○ Tax tribunal - a forum for those who are aggrieved by the decision of the Commissioner for Tax
○ HIV Tribunal - discrimination w.r.t someone's status
○ Sports Tribunal- sporting issues e.g doping
• The decisions which come out of the tribunal can only be appealed from the high court upwards.

The Law making process

• Kenya has two levels of government: County and national government
• We have three arms of government in the National Government:
○ Legislature: Making statutory law or statute law, legislators are known as MPs.
○ Executive: Bills signed into law by president.
○ Judiciary: Known as Common law, is about making precedents.

Note: Common law is A system of law developed through court decisions and judicial precedents rather than through written statutes
or legislation. It should not be confused with Case law, The body of law made up of individual judicial decisions from courts; Case law
is a subset of common law

• Over time, legislative law has overpassed common law, and is regarded as true law. This is because legislative law is made by
representatives of the people, and is regarded as the will of the people. Common law however is still important when it comes to
covering matters not dealt with by statutory laws

• County government has its own

legislature and its own laws. The legislators are known as MCA's
Executive: Governor, county executives, ministries. Bills signed into law by Governors
However, counties do not have their own judiciaries

• Therefore, laws can be made by the two levels of government.

• Both levels of the legislature make laws, but their roles are distinct
○ Senators make laws concerning county government
○ National Assembly make laws concerning national government

• Bills can be brought forward by individual or private members, or a government initiated process.

Step 1: Publication and circulation

• Public is notified of the intended bill via the Kenya Gazette

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 • Public is notified of the intended bill via the Kenya Gazette
• Appeals, petitions and memoranda can be made to the MPs or directly by individuals

Step 2: First reading

• Bill is introduced to the legislative body
• Is assigned a tracking number and relevant sectoral committee
• Sectoral committee-sectors of MPs dealing with various matters based on expertise or preference
• No debate at this stage: purely for letting the legislature and public know about the bill and drawing attention to it

Step 3: Second reading

• Bill is read to all legislators, highlighting the key objectives and purpose of the Bill.
• Referred to the sectoral committee after a vote it taken on the bill's general principles

Step 4: Committee Stage

• Bill is looked at line of line, clause by clause, letter by letter
• Public views are taken at this stage, and amendments are offered and debated on in full
• Note that amendments with contravene the bill's main objectives are not accepted

Step 5 Reporting stage

• Whatever is worked on in the committee stage is read to legislators in parliament
• Last stage where parliamentarians can amend the bill

Stage 6: Third reading

• Bill is looked at together with amendments made.
• Amendment at this stage is rare
• Voting of the bill passes: Yes or No

Stage 7: Assent
• National government bill taken to the president, County government bill taken to the Governor(point of contention in exam)
• Bill not signed or acted upon in 14 days are passed into law
• President/Governor can refer the bill back to the Reporting/Sectoral stage

Stage 8: Commencement
• Happens in two ways:
○ Bill may have a release clause
○ Bill becomes law 14 days after assent

Benefits of having a contract

1. Easy to identify who the parties are
2. Purpose/objective of the contract is usually very clearly stipulated
3. Rights & duties of a party are clearly defined, thus it is not hard to manage expectations
4. The terms of engagement are also very clearly defined(these are the rules and expectations governing how the parties will fulfill their obligations
under the contract.)
5. The duration of the contract is stated
6. They indicate how disputes will be resolved
7. Governing laws-It identifies the applicable legal framework, ensuring compliance with relevant regulations.

Essentials of a valid contract

1. Offer and acceptance
○ offer is an expression to get into a legally binding agreement with someone
○ Acceptance: agreeing the person's offer
○ The offer and acceptance must be lawful

2. Intention to create a legal relationship

○ Look at whether the parties were intending to create a legally binding relationship

3. Lawful consideration

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3. Lawful consideration
○ This is the price to be paid for entering the contract e.g. the price of purchase of a car is the consideration
○ The consideration again must be legal tender/lawful e.g. you cannot pay by beating someone. It can be money, money's worth or both

4. Capacity of parties
○ This is the legal capability of people to enter into a contract.
○ You can enter into a contract with special considerations among:
a) Minors
b) Companies/legal persons
c) Immigrants
d) Mentally unsound people

5. Free consent
○ Parties must consent to entering into the contract: no coercion should be involved.
○ Should it be the case that you entered into a contract via coercion, the contract immediately becomes invalid

6. Lawful object
○ The reason for entering the contract must not be illegal

7. Possibility of performance
○ For a contract to be valid, it must be possible to perform e.g. you cannot get into a contract with a 21 year old to become 12 years old

Important exam note: DO NOT confuse benefits of a contract with its essentials

Capacity
• This is the legal capability of parties to enter into a contract.
• Specific rules are applied when entering into a contract with:
a. Minors
 Legal minor age varies from country to country. In Kenya, it is someone below the age of 18
 Group discussion: What kind of contracts can minors get into?
b. Corporations
 Always make sure contact person has the capacity to bind the contract by asking for the company's memorandum and article of association
c. Immigrants/non-citizens/aliens
 Ensure aliens have legal documentation to get into a contract in your country.
 This includes
a) Proper registration
b) Permits from immigration
 Those who are employed have a different permit from businessmen
 These records can be confirmed by the immigration office
d. Mentally unsound people/Drunkards
 Medically insane people can enter contract, but they must be lucid during the time they get into a contract.
 Drunk people cannot enter a contract
 There is a legal limit to how drunk one can be; you cannot observe drunkenness
e. Married Women
 Under common law and some jurisdictions, married women could not enter into contract
 Advances in the law however allowed women to get into contracts under the law reform act

TERMS OF CONTRACTS
• These are statements made in the process of contract negotiation that will eventually be included in said contract
○ However, not everything said during the negotiation will be included in the contract
○ These items which are left out are known as representations

• Terms of a contract are either expressed or implied

○ Expressed terms: Specifically agreed upon
 A good express term is usually price to be paid
 For example, one cannot sell a phone without agreeing on a price

○ Implied terms: In the absence of an expressed term, anything else which is guided by the law is known as an implied term
 For example, you have to be above 18 years to enter most contracts
 This term is implied as it is governed by the law; it is implied by other laws that you have the capability to enter into that contract

Conditions and warranties

Not everything in a contract bear the same weight: some weigh more than others

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 ○ Not everything in a contract bear the same weight: some weigh more than others
○ Those regarded as major terms are known as conditions while minor ones are known as warranties
 Both of these are determined by the contract
 Breach of a condition can cause a contract to collapse
 Breach of a warranty can be compensated or discussed

Consequences of subcontracting
• Research. This is very important

Discharge of contracts
○ This is the termination of a contract
○ Obligations and rights cease immediately when a contract is terminated
 Parties are no longer legally bound to each other
○ Contracts can be discharged by
i. Performance
□ Occurs when each party has fulfilled their responsibilities
□ This is the most common way of bringing a contract to an end
□ Terms of contract are met when the contract is discharged
□ Discharge by performance can be looked at through
a) Complete performance: Carried out everything according to the terms of the contract
b) Substantive performance: Main objective of the contract is done.
◊ Minor objectives may have not been met, i.e. they may be defects, omissions, minor deviations etc.
◊ These defects should not affect the other party's rights

ii. Agreement
□ Both parties agree to terminate freely and willingly
□ Contracts without a termination clause by consent are dangerous
□ Obligations end when you both accept to end the contract

iii. Frustration(Force majeure)

□ Contract can be terminated due to unforeseen circumstances which make it impossible to perform contractual obligation
□ This difficulty of performance is something you are uncapable of foreseeing in the contract, e.g. COVID-19, Civil war
□ Force majeure clause-Acts of God

iv. Breach
□ When a party fails to meet their legal expectations
□ Going against what you are contractually obliged to do
□ There are two types of breaches
a) Material breach
◊ Failure to perform a substantial part of your obligations

b) Minor breach
◊ Breach of an insignificant part of the contract

v. Operation of the law

□ Death
□ Incapacity of a party
□ Illegality
□ Bankruptcy
 Protection mechanism by law to protect one from creditors

Groupwork: Remedies for breach of contract

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