CONSTRUCTION LAW (DQS).

Introduction

- This course unit is intended to impart the essentials of law to the trainee.
- It is intended also to make the trainee aware of legal implications of quantity surveying work in a
construction project.

General objectives

- At the end of this course unit the trainee should be able to; -
i. Appreciate fundamental aspects of law of contract
ii. Understand nature of land law
iii. Understand the general principles underlying law of tort
iv. Understand arbitration procedures

Course Outline

1. Introduction
a) Structure and jurisdiction of courts
b) Sources of law
c) Nature and classification of law
2. Law of tort
a) Definition
b) Defences
c) Trespass
d) Negligence
e) Nuisance
f) Defamation
3. Land law
a) Definition
b) Land ownership
c) Leases
d) Tenancies
4. Law of contracts
a) Formation of a contract
b) Validity of a contract
c) Contractual obligation
d) Performance and discharge
e) Breach of contract
5. Mortgage and charge
a) Terminologies
b) Land as security
c) Types of mortgages
d) Types of charges
6. Arbitration
a) Condition of contract (clause 36)
b) Terms in arbitration
c) Arbitration procedure
 TOPIC 1: INTRODUCTION TO LAW
Specific objectives
- At the end of this topic the trainee should be able to;-

a. Identify sources of law

b. Classify law
c. Explain the structure of law courts of Kenya

The Nature of Law

- The term ‘law’ is used in a variety of senses.

- There are laws of physical sciences, laws of social sciences, moral laws and laws of state.

 Laws of physical sciences

- Laws of physical sciences are those facts which have been proved correct and do not change over a period
of time.
- Such laws establish the relationship between the cause and effect of related facts. These laws are permanent
and universal e.g. Law of motion, law of gravity etc.

 Laws of social sciences

- The laws of social sciences also establish the relationship between the cause and effect of certain facts but
these laws are true under certain given conditions only e.g. laws of economics, Laws of Sociology etc.

 Moral laws

- Moral laws are laws of human conduct as members of a society.

- These laws guide us as how we should live in society.
- The examples of moral laws i.e. treat your fellow men with courtesy.

 Laws of state

- The laws of state are those laws which are made or enforced by a state.
- It is the duty of the citizens of a country to obey these laws.
- If they disobey them, they are punished e.g. theft is a crime and whoever breaks this law will be punished
by the state. In this course the concern is with the laws of state only.
- The term law used in this course means the law of the state.
- The law is part of everyone’s life. There is need to understand the prevailing laws because the individuals
can be affected by them one way or another. For example, a person may find himself being prosecuted and
punished for an offence he has committed.
- Similarly, he may find himself being sued for compensation (or some other remedy) for an injury which
has resulted from a wrong doing by him against some person.

1. Definition of the word ‘law’.

- There is no generally acceptable definition of the word law.

- Different schools of law define it in different ways. Some important definitions of law are given below:-
 a. Woodrow Wilson has defined law in the words “That portion of the established thought and habit
which has gained distinct and formal recognition in the shape of uniform laws, backed by authority
and power of government
b. According to Holland, A law is a general rule of external human action enforced by a sovereign
political authority.
c. In other words of Salmond, law is the body of principles recognized and applied by the state in the
administration of justice
d. Law may be defined in the words; a rule of human conduct(s); imposed upon and enforced among
the members of given state.

2. Properties/characteristics of law

- From the above definitions, law can be said to possess the following properties: -
i. Set of Rules Law is a set or body of rules. These rules may originate from customs, acts of
parliament, court cases or some other acceptable sources.
ii. Guidance of Human Conduct: These rules are enforced for the guidance of human conduct.
Human beings follow these rules for their own safeguard and betterment.
iii. Applicable to a Community: These rules apply to a specific community. This community may be a
sovereign state or a business community. The laws of different communities may be different e.g.
what is law in Kenya may not be law in Uganda or Tanzania.
iv. Change of Rules: The law changes over a period of time. It means law is not a static phenomenon.
It keeps changing with time i.e. what was law in Kenya in the 1960’s may not be the law in 2000’s
v. Enforcement: The law must be enforced otherwise there would be anarchy. The law enforcing
agencies include police and courts of law.

- From the above definitions, we may conclude that; - law refers to a set of rules or principles that govern
the conduct of affairs in a given community at a given time, whereby machinery is provided for an
aggrieved party to enforce his rights in case any of these rules or principle is broken.

3. Law and Morality Law,

- As defined above, must be distinguished from morality.

- The rules of law may be enforced by an action of courts.
- Morality, on the other hand, does not attract the sanction of court for its enforcement, unless it also forms a
part of the law.
- The requirement that a person should respect his elders is a rule of morality, not of law; no one can be sued
for failing to respect the elders.
- Fortunately, the rules of law are always defined by the law itself and can therefore be ascertained in a
given circumstance without being confused with rules of morality.
- Rules of morality are defined by morality itself and vary from community to community, but wherever they
exist they do not as such attract the sanction of law; otherwise they would cease to be rules of morality and
become rules of law.

4. Purpose of law

- Each society or community has its laws which regulate the mutual relations and conduct of its members.
- The laws are enforced to ensure that the members of the society may live or work together in an orderly
and peaceful manner.
- The main purposes of law are as under: -

a. To regulate the conduct or behavior of the persons

b. To provide justice to the members of the society
c. To maintain the political and economic stability
d. To protect the fundamental rights and freedoms of the individuals
e. To establish the procedures and regulations regarding the dealing among the individuals.
f. To maintain peace and security in the country.

5. Kinds of Law or Classification of Law

- Law may be classified in different ways.

- The main kinds of law are; -

i. Public Law and Private Law

ii. Civil Law and Criminal Law
iii. Procedural Law and Substantive Law
iv. International Law Public law and private law

i. Public law and private law

- In any given state, it is the practice to draw a distinction between the law that governs the relations between
the state and its citizens on the one hand, and that which governs the relations of the citizens amongst
themselves on the other.
- The former is known as public law while the latter is called private law.
- It means private law is that part of the law which is primarily concerned with rights and duties of persons
towards persons.
- Private law is also called as civil law.
- Public law is that part of the law in which the state has an interest Public law consists of constitutional Law,
Administrative Law and Criminal Law Constitutional law consists of those rules which regulate the
relationship between different organs of state.
- These organs of state are, Legislature, judiciary and executive.
- Administrative law is the law which relates to the actual functioning of the executive instruments of the
Government.
- Criminal law consists of wrongs committed against the state.

ii. Civil Law and Criminal Law

- Civil law (or private law) is that law which governs the relations of individuals amongst themselves as
opposed to the relations between the individual and the state.
- This includes the law of contract, the law of succession, the law torts, the law of property etc.
- In general individual interaction attracts the sanction of private law, so that any person aggrieved by the act
of his friend or neighbor may seek the assistance of the civil law of the land.
- Criminal law falls within the purview of public law.
- This is because it is the duty of the state to protect its citizens and it is the state which must therefore seek
redress for any public wrong (crime) committed against any citizen.
- The state prosecutes the criminal on behalf of the citizenry as a whole.

Differences between criminal and civil wrongs

- A crime is a public wrong the commission of which may result in the prosecution and punishment of the
wrong doer.
- The punishment is usually by a term of imprisonment or imposition of a fine.
- The Penal Code of Kenya contains the bulk criminal wrongs and the details of punishment relating to
criminal wrongs. Crimes include theft, rape, murder etc.
- A civil wrong is a violation of the private rights of an individual. Such violation of private rights may be
tort, a breach of contract, a breach of trust etc.
- Some offences are crimes as well as civil wrongs. An example is assault. It is both a crime and a tort. Such
an offence of a dual nature is exceptional.
- In the majority of cases, crimes are quite independent of civil wrongs.
- Below are the differences between these two types of wrongs:-

Crime

a. It is a public wrong against the state.

b. The parties are the prosecution and the accused. The prosecution represents of the state, while the
accused is the offender who is being prosecuted
c. Since this is a public wrong the action cannot be compromised by the parties. It is only in exceptional
circumstances that the public prosecutor may withdraw a prosecution against a particular accused.
d. The prosecution must prove its case against the accused beyond reasonable doubt. Any slight doubt
must be resolved in favor of the accused.(Note: Every person is presumed to be innocent until proved
guilty)
e. Punishment is usually by imprisonment or fine, or the death penalty in the case of capital offences.

Civil Wrong

a. It is a private wrong against an individual.

b. The parties are the plaintiff and the defendant. The plaintiff is the aggrieved party who is suing, while
the defendant is the wrong doer who is being sued.
c. This being a private wrong, the parties are free to compromise any action brought by one of them and
the plaintiff may at any time choose to withdraw his action against the defendant.
d. The plaintiff needs only to prove his case on a balance of probabilities, not beyond reasonable doubt,
i.e. the evidence must be such that it is more probable than not that his case merits success compared
to that of the defendant
e. A defendant found to have committed a civil wrong is usually ordered to pay the plaintiff damages
(i.e. monetary compensation): or some other civil remedy may be granted to the plaintiff.

iii. Procedural Law and Substantive Law

- Procedural law consists of the rules which determine the manner in which the court proceedings are
required to be conducted in civil and criminal cases.
- This law guides how a right is enforced under civil law or a crime is prosecuted under the criminal law.
- Substantive law consists of actual rules regarding the civil, criminal or other fields of law.
- Mainly, this law defines civil and criminal wrongs and provides remedies for each type of offence or civil
wrong.

iv. International Law

- International Law may be further classified as public International Law and Private International Law.
- Public international law consists of those rules which regulate the relations between states.
- This law is based on treaties, conventions and rules of wars.
- The disputes between states can be settled by The International Court of Justice. This court does not have
any authority to enforce its judgments.
- Private International Law is mainly concerned with determining which national law governs a case in
which there is foreign element.
- For example, a Kenyan signs a contract with a Ugandan in Uganda to construct one dam in Sudan and if
there is breach of contract then Kenyan wants to sue the other party in Kenya. In this case, the Kenya Court
will decide which national law to apply

6. Divisions of Civil Law

- Main divisions or branches of civil law are: -

a. Law of Contract

- A contract is an agreement or promise which is legally binding or enforceable by law.

- The law of contract determines whether a promise is legally enforceable and what its legal consequences.

b. Law of torts

- Salmond has defined tort in the words “A civil wrong for which the remedy is a common law action for
unliquidated (i.e. unspecified or unascertained) damages and which is not exclusively the breach of a
contract or breach of trust or any other merely equitable obligation”.
- The examples of torts are negligence, defamation, trespass and nuisance.
- The law of torts deals with various types of torts.

c. Law of property

- Law of property deals with the nature and extent of the rights which people may enjoy over land and other
property.

d. Law of Succession

- Law of succession deals with the transfer of property on the death of a person to his heirs.

e. Law of Trusts
- A trust is a relationship which arises whenever one person called the ‘settler’ transfers his property to
another person called the ‘trustee’ on the condition that the trustee holds the property for the benefit of
another person the ‘beneficiary’.
- Law of trusts deals with the various aspects of trusts and imposes a strict obligation on the trustee to
administer the trust property in accordance with conditions of the trust.
-

7. The Sources of Kenyan Law

- The expression ‘source of law’ refers to the various factors which contribute to and determine the content
of law and the organs through which laws are created.
- Every law must have a source.
- A source of law is that which may be pointed out as forming the basis of law i.e. what gives it force and
validity.
- It means that the existence of a particular principal of law can only be justified when it has a base or origin.
- A source of law may be written or unwritten and this leads to the distinction between written and unwritten
laws.
- Legislation (including the constitution) is the best example of written law while customary law may be
cited as an example of unwritten law.
- Again a source of law may determine whether the law is local or foreign origin.
- Local laws in Kenya include enactments of our own parliament as well as the various customary laws
observed in Kenya.
- Foreign laws applicable in Kenya includes foreign enactments having the force of law in Kenya (e.g.
certain English statutes) as well as certain rules of English common law and equity.
- The sources of law in Kenya have been contained in Section 3 of the Judicature Act (Cap. 8). The sources
of Kenyan Law are as under:-

a) The constitution of Kenya and subsequent amendments to the Constitution

b) Acts of Parliament of Kenya
c) Specific Acts of the Parliament of the United Kingdom cited in the part 1 of the
schedule to the Judicature Act and the Law of Contract Act (Cap 23). One Act of
the Parliament of India.
d) Subsidiary (Delegated) Legislation.
e) English Statutes of general application in force in England on 12th August 1897
f) The Procedure and Practice observed by courts of justice in England on the 12 th
August 1897
g) African Customary Law
h) Case Law or Judicial Precedent
i) Islamic Law

8. Structure and Jurisdiction of law courts of Kenya

- The Kenya courts are organized in the following jurisdiction order

i. Supreme court of Kenya
ii. Court of appeal of Kenya
iii. High court
a. Court martial
b. Kadhi’s court
 iv. Chief magistrate’s court
v. Principal magistrate’s court
vi. Senior resident magistrate’s court
vii. Resident magistrate’s court
viii. District magistrate’s court
a. First class District magistrate’s court
b. Second class district magistrate’s court
c. Third class district magistrate’s court
Assignment
N/B: - using an appropriate sketch, describe the structure and jurisdiction of law courts of Kenya.
 TOPIC 2; LAW OF TORT
Specific objectives

- At the end of this topic, the trainee should be able to:-

a. Define law of tort
b. State general defences in tort
c. Identify trespasses in land and goods
d. Explain negligence
e. Explain nuisance
f. Explain defamation
g. Explain vicarious liability

A. Introduction

- The word tort has been derived from the Latin tortus which means crooked or twisted.
- In French, tort means a wrong.
- In law, tort denotes certain civil wrongs. It means, a tort is a civil wrong.
- Sir F. Pollock has defined tort as "An act which causes harm to a determinate person, whether
intentionally or not, not being a breach of duty arising out of personal relation or contract, and which is
either contrary to law, or an omission of a specific legal duty, or a violation of an absolute right".
- Every tort results from the breach of a certain duty which is primarily fixed by law unlike other civil
wrongs such as breach of contract, where the duty in question is fixed by the parties themselves.
- Thus, the duty not to defame, injure or damage the property of any person is one fixed by the law and its
breach may constitute a tort, whereas the duty to supply goods under a contract of sale is a duty created by
the parties themselves in their contract.
- In tort, the duty is imposed on persons generally, i.e. on every individual, but in other cases the duty is
imposed only on the parties concerned, e.g. the duties created by a contract are imposed only on the parties
to the contract and on no one else.
- Similarly, the duty in tort is owed to every other person, unlike in contract cases where one contracting
party owes his contractual obligation to the other contracting party and to no one else.
- A tort, as such, differs from other civil wrongs in a number of respects.
- It is a common law wrong which is usually remedied by an award of "Unliquidated Damage". Unliquidated
damages are those whose assessment is left for the determination to a court at its discretion.
- These are distinct from liquidated damages which are fixed by the plaintiff.
- Certain other remedies are also available which will considered when the various torts are separately dealt
with a person who commits a tort is called a tortfeasor.
- Where two or more persons commit a tort, they are known as joint tortfeasors.
- They may be sued jointly, or any one of them may be sued for the whole of the damage.
- In case of the joint tortfeasors, there is a right of contribution, under which the court may apportion the
damages between them in such a way as is just, having regard to their respective degrees of blame.
 B. Function of the Law of Torts

- The primary function of the law of torts is to compensate persons injured by the civil wrongs of others, by
compelling the tortfeasor to pay for the damage occasioned by his tort.
- Besides this, there are certain other functions and these include the following. ;-

a. To Determine Rights Between Parties to a Dispute.

- A party to a dispute may bring an action for a declaration of his rights; and once the court makes a
declaration, the rights of the parties are determined.

b. To Prevent a Continuance or Repetition of Harm.

- When the injury complained of is of a continuous nature or likely to be repeated by the tortfeasor, the
injured party may be granted an injunction to prevent its continuance or repetition, e.g. in cases or trespass
to land.

c. To Protect Certain Rights Recognized by Law.

- There are certain rights which every individual is entitled to land which are recognized by law.
- These rights are protected by the law of torts e.g. a person's reputation or right to good name is protected by
the tort for negligence with imposes a duty of care on every other person.

d. To Restore Property to its Rightful Owner.

- Where property is wrongly taken away from its rightful owner or otherwise dealt with contrary to his
rights, he may seek a restitution of the property or its value since the wrongful act amounts to the tort of
trespass to goods (or land).

C. Nature of tortuous liability

- A tort is a civil wrong which is usually remedied by an award of Unliquidated damages.

- Prof. P.H. Winfield asserts that "tortuous liability arises from the breach of a duty primarily fixed by law;
such duty is towards person generally, and its breach is redressible by an action for unliquidated
damages".
- Every person is under a duty to compensate for his wrongful acts which have resulted in injury to another
person. It is this duty to compensate that determines his liability in tort.
- Generally, the plaintiff must prove that he has suffered harm and that there has in consequence been a
violation of his legal right.
- Some civil wrongs are actionable even if no damage is suffered e.g. trespass to land.
- Whether the plaintiff has any remedy in some cases of tort depends on the following two principles of
general application:-

i. Damnum Sine Injuria

- Literally translated, this phrase means "Harm without legal injury."
- It refers to a circumstance where a person has suffered actual harm without any violation of his legal right.
- A person aggrieved in this way has no legal remedy.
- Mogul Steamship Co. v. McGrefor, Gow & Co. (1982) certain ship-owners reduced their freight charges
for the sole purpose of driving their rival out of business. The plaintiff, who had thus been driven out of
business, brought an action against the ship-owners.
- Held: a trader ruined by the legitimate competition of his rivals could have no redress in tort.

ii. Injuria Sine Dumno

- This refers to a situation where a person suffers a violation of his right without any actual loss or damage
sustained by him.
- This is especially so in the case of torts which are actionable 'per' se' (i.e. without proof of any damage) e.g.
trespass to land, libel etc.
- The Court can award the damages to the plaintiff in such case. Ashby v. White, (1703) In this case the
defendant, a returning officer, wrongfully refused to register a properly tendered vote of the plaintiff who
was a legally qualified voter. In spite of this, the candidate for whom the vote was tendered was elected,
and no loss was suffered by the rejection of the vote.
- It was held that the defendant was liable because he deprived the plaintiff of his legal right of registering
his vote.

D. Determination of tortuous liability

- Tortuous liability can be also determined on the basis of the following principle, “The Fault principle”.
- Most torts are based on the fault principle.
- Under this principle, it is necessary to establish some fault on the part of the wrongdoer before he can be
made liable in tort.
- A person is said to be at fault where he fails to live up to some ideal standard of conduct set by law.
- Three elements are relevant in the determination of fault, and any one of them may be relied upon:-

a. Intention

- Where a person does a wrongful act desiring that its consequences should follow, he is said to have
intended it; and to that extent there is some amount of fault on his part.

b. Recklessness

- An act is said to be done recklessly where it is done without caring whatever its consequences might be.
- Recklessness, as such, constitutes fault on the part of the wrongdoer.

c. Negligence

- A person is also at fault where he does a wrongful act negligently i.e. there the circumstances are such that
he ought to have for seen the consequences of his act and avoided it altogether.

E. Distinction between Tort, Crime and Breach of Contract

- We may distinguish between a tort, a crime and a breach of contract as under

 a. Tort and Crime

- A crime is la breach of public rights whereas a tort is a civil wrong.

- The main object of criminal proceeding is the punishment to the criminal persons but the object of
proceedings in tort is not punishment. Its main aim is the compensation to the plaintiff for the loss or injury
caused by the defendant i.e. damages.
- Some cases may be actionable under criminal law and law of torts e.g. if 'A' assaults 'B', there is both a
crime and a tort.

b. Tort and Breach of Contract

- In contract, the duties are fixed by the parties to a contract. But in tort, the duties are fixed by law (common
law or statute).
- In some cases, a breach of contract and tort may take place simultaneously. We assume 'X' employs a
private surgeon to operate his wife. If 'Y' fails to perform his duty properly then 'X' has a cause of action
against 'Y' for; -
 breach of the contractual duty of care
 The tort of negligence.

F. Malice

- Malice means ill-will or desire to cause damage to someone.

- In legal sense, malice means a wrongful act which is done purposely without having a lawful act with is
done purposely without having a lawful excuse.
- In tort, the intention or motive for an action is generally irrelevant.
- The general rule is that a bad intention does not make a lawful action as unlawful and similarly an innocent
or food intention is not a defence to a tort.
- Wilkinson v. Downton (1897) A, as a practical joke, told Mrs. B that her husband had met with an
accident. Mrs. B suffered a nervous shock and was ill as a result. Mrs. B brought an action against A for
false and malicious representation. The fact that A passed the information as a joke was irrelevant, and
Mrs. B was entitled to damages.
- Malice in itself is not a tort, but it can be an important element in certain torts.
- Main examples of such torts are: Malicious persecution.

G. General Defences

- A person sued in tort has at his disposal certain defences, some of which are restricted to particular torts
(e.g. contributory negligence is a defence only to the tort of negligence), while other are of a general nature.
- Specific defences are dealt with together with their respective torts.
- This section is restricted to general defences.
- The following general defences are available to a defendant in every action for tort where they are
appropriate:-
a) Volenti non Fit Injuria
b) Inevitable Accident
c) Act of God
d) Necessity
 e) Self-defence
f) Mistake.
g) Statutory Authority

1. Volenti Non Fit Injuria

- Volenti non fit injuria is also known as the voluntary assumption of risk.
- Where a defendant pleads this defence, he is in effect saying that the plaintiff consented to the act with is
now being complained of.
- The plaintiffs consent may be either express or implied from his conduct.
- Before Volenti Non Fit Injuria can be upheld as a defence, it must be proved that the plaintiff was at the
material time aware of the nature and extent of the risk involved for a person cannot consent to what is not
within his knowledge.
- By his consent the plaintiff voluntarily assumes the risk of whatever consequences might follow from the
act he has consented to, consequently, where Volenti Non Fit Injuria is successfully pleaded its effect is to
deny the plaintiff any remedy at all against the defendant: Volenti non fir injuria means no injury can be
done to a willing person.

- For example,; -
 a football player cannot complain for being injured while playing the game.
 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 Non Fit Injuria 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. 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 severe injuries. 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

- An inevitable accident is one which cannot be prevented by the exercise of ordinary care, caution and skill.
- It therefore occurs only where there is no negligence on the part of the person whose act is complained
against.
- Since the law of torts is generally based on the fault principle, and since an inevitable accident does not
impose fault on the part of the alleged wrongdoer, it follows that an injury which has resulted from an
inevitable accident is not actionable in tort.
- 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

- An act of God or vis major is also an inevitable accident caused by natural forces unconnected with human
beings e.g. storm.
- In this case also, any resultant injury is not attributable to anyone's thunder etc. in this case also, any
resultant injury is not attributable to anyone's fault and as, therefore, not actionable in tort.
- 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. Necessity

- A person may sometimes find himself in a position whereby he is forced to interfere with rights of another
person so as to prevent harm to himself or his property.
- For instance, if he is about to be shot he may feel constrained to use the person next to him as a shield
against the gunman; or being hungry he may steal food in order to survive; in the process taking the latter
with him into the pit.
- In all these cases he may seek to justify his action as a matter of necessity.
- It is based on the maxim "salius populi supreme lex" i.e. the welfare of the people is the supreme law.
- All the cases decided on the defence of necessity point to the fact that this defence is difficult to maintain
and is very rarely allowed by court.
- The general rule is that no person should unduly interfere with person of property of another.
- It is only in exceptional circumstances of an urgent situation of imminent danger that this defence may be
upheld: 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.
5. Self Defence

- It is sometimes said that a person who is attacked does not owe his attacker a duty to escape.
- Everyone whose person is threatened is entitled to defend himself; and he may do so by using force.
- Force, however, may only be used where necessary, otherwise the person claiming for defend himself
might find himself liable to his alleged attacker.
- Thus, where a person is assaulted i.e. threatened with immediate harm, but no harm is actually inflicted on
him, he should not himself use force in an effort to defend himself.
- Where force has actually been applied (i.e. where there has been a battery the person attacked has a right to
defend him/herself in the same way, i.e. by applying force.
- But the force used in self-defence must be reasonable and proportionate to that used in attacking him;
otherwise if it is unreasonable or excessive in the circumstances he will himself be liable to his attacker.
- Thus a person attacked with a fist, pocket knife or small stick, or he may even use lesser force. But if in
these circumstances he responds with a panga or spear clearly the force used by him in self-defence will be
unreasonable and disproportionate and he will be liable to his attacker.
- 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
 it was actually attacking the sheep; or
 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.

6. Mistake

- The general rule is that a mistake is no defence in tort, whether it is a mistake of law or of fact.
- Mistake of fact may be relevant as a defence to any tort is some exceptional cases.
- This could arise in cases of malicious prosecution, false imprisonment and deceit.
- For example, where a police officer arrests a person about to commit a crime but the person arrested is
innocent then the police officer is not liable.
- In this case, the mistake is reasonable ground for the defence in the tort.
- Mistake cannot be a defence in actions for conversion or defamation.

7. Statutory Authority
- Where a statute authorizes a particular act, a person who does it is not liable in tort.
- The authorization of an act is also an authorization of its natural consequences.
- But the person acting must do so in good faith and within the scope of the powers conferred by the statute;
or else he will not be protected.
- Where the person acting exceeds the powers conferred by the statute, the compensation payable by him to
the injured party cannot be more than what is provided by the statute itself.
- The statute may stipulate a definite sum, or it may give powers to certain officials to assess the loss
suffered by the injured party.
- Thus, where a person has acted in pursuance of the provisions of a statute, he may plead statutory authority
in his defence; and where the statute does not protect him from liability (e.g. where he has exceeded his
powers) and the injured party claims by way of competition a sum in excess of that stipulated by the
statute, he -ay plga the statute i. mitigation. This is especially so in what are known as statutory torts.
- 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 plaintiff’s woods. Held: that the
railway company was not liable. It had taken all known care to prevent emission of sparks. The running of
locomotives was statutorily authorized.

H. 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 of 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 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 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 be 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.
- 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.
- 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 of 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 50 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.
- Morriss v. Marsden, (1952) 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 51 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)
 I. Specific Torts

- The work tort refers to civil wrong committed by different Persons.

- Some specific torts are:
 trespass
 Nuisance
 Negligence
 Defamation

A. Trespass

- There are three types of trespass.

- These are:-
 Trespass to land
 Trespass to the person
 Trespass to Goods
- Trespass is actionable per se i.e. .without proof of any damages once it is established that a trespass has
been commit, the plaintiff is entitled to legal redness, whether or not he has suffered damage; the actual
damage suffered (if any ) merely gauges the extent of the redness or compensation )which the plaintiff is
entitled to.
- Trespass, as such, is a of the classic illustration of the principal „injuria sine damno‟.
- It is this fact that distinguish it from negligence which is actionable only upon proof of damage

Trespass to land
- Trespass to land is committed where the plaintiff’s possession of land is wrongfully interfered with.
- it is the fact of possession rather than ownership that is important ;such as plaintiff may be any one in
possession of the land, whether he is the owner or a tenant .
- Wrongful interference with possession in relation to the plaintiff’s land may take the form of wrongfully
entering upon it, or wrongfully remaining on it, or wrongfully placing or projecting any material object on
it Trespass by wrongful Entry.
- This is committed where there is physical contact with the plaintiff’s land, however slight.
- It includes acts like encroaching on the land or walking through it without authority, sitting on the
plaintiff’s fence or putting a hand through his window etc
- Also n abuse of a right of entry may constitute a trespass, e.g. a person authorized to enter premises for the
purpose of repairing them becomes a trespasser when he picks and eats fruits on the premises without
authority.
- If a person misuses his authority, it is also known as trespass.
- Trespass by remaining on land - This type of trespass is committed by a person who, having been
originally authorized to enter upon land is subsequently asked to leave: such a person becomes a trespasser
When he fails to leave the land within a reasonable time.
- Trespass by placing things on land Trespass by placing things on land is committed by kin who places any
material thing on the plaintiff’s land, or who allows such material thing or noxious substance, to come in to
contact with (or cross the boundary of )the plaintiff‟ land.
- This type of trespass is similar to nuisance, but the two are different in the following respect: -
 1. In trespass the injury is direct since it affects the plaintiff’s Possession; but in nuisance the Injury is
indirect because it is the Plaintiff’s comfort and convenience in the use and enjoyment of his land that
is affected, rather than its possession.
2. Another distinc4ion arising from the explanation given above is that while trespass relates the
possession of land, nuisance relates to the user or enjoyment of land :in trespass the plaintiff’s
possession is at stake, while in nuisance it is the use and enjoyment of the land that is at stake.
3. Trespass is actionable per se, whereas nuisance, just like negligence is only Actionable upon proof of
damage.
- The following cases are instructive.
- Kelsen v imperial tobacco co. ltd, (1957 He defendant erected$ an advertising signpost which protruded by
8 inches in to air space above the plaintiff’s land.
- Held:
 The defendant’s act constituted a trespass but not a nuisance since the plaintiff had
suffered no inconvenience continuing trespass: As long as the act constituting a trespass
remains (without the trespasser doing anything to avoid it, there .is said to be continuing
trespass.
 This arises Where, for instant, the trespasser chooses to remain on the plaintiff’s, and or
Fails tm remove there from any matter that is the cause of trespass.
- Where there is continuing trespass, the plaintiff may bring a number of actions against the defendant.
- This is because as long as the trespass continues, the Plaintiff continues to suffer and there is always afresh
cause of action.
- Trespass by Relation The plaintiff’s possession of land relates Back to The time when he first acquired a
right to posses the land and he is deemed to have been in possession of it from that time.
- Possessor of land may therefore sue any Person who committed an act of trespass on the land even before
he himself took actual possession of it .since the plaintiff’s right of action is based on a title which legally
relates back to the earlier period, the trespass in question is known as trespass by relation. it is all based on
doctrine of relation back .
- Example: A own land which he sells off to B. A year passes before B has taken actual possession of the
land; but in the meantime C has committed an act of trespass on the land B; may sue C for trespass not
withstanding that he had not yet taken possession of the land when the act of trespass was committed; B’s
title relate back to the time when he first became entitled to take possession i.e. the time when he bought
the land from A.
- Is trespass a crime? Trespass to land is normally a civil wrong, but it may give rise to criminal preceding
some cases. The trespass Act (cap.294) states that a trespasser can be prosecuted criminally if he enters on
somebody’s land with intent. To steal goods or commit any other offence.
- Otherwise, a trespass to land is a tort and it is actionable per se, i.e. without proof of special damage.
Defences:
- The main defences to an action for trespass to land are as follows:-
 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 a right of
common grazing or right of way over the Plaintiff’s land.
 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
 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
 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 common for 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 - In the case of trespass by placing things on land (or in the case of
chattel trespass) the plaintiff has a right to detain the defendant’s chattel or animal which is
the cause of the trespass in question.

Trespass to the Person

- Like trespass to land, trespass to the person is three-fold. It may consist of;-
a) assault,
b) battery or
c) False imprisonment.

Assault

- An assault is committed by a person when he threatens to use force against the person of another, thus
putting the other person in fear of immediate danger e.g. shaking a fist or pointing a gun menacingly at the
person of another.
- It is important that the person threatened must be put in fear of immediate danger otherwise there will be no
assault.
- An assault is a tort as well as a crime.

Battery

- While assault is constituted by the mere use of a threat calculated to induce fear, battery is defined as the
tactual application of force against the person of another without lawful justification; e.g. punching the
plaintiff’s lose, smacking his bottoms or slapping him On the chick, etc.
- An act can only amount to a battery if it is intentional and voluntary.
- Thus, a person who suffers injury in the process of scrambling for a tax will find it difficult to maintain an
action for battery against anyone.

False Imprisonment

- There is said to be false imprisonment where a person is totally deprived of his freedom without lawful
justification.
- Whether physically or otherwise; e.g. locking up a person in a room whose only exit is the locked door or
surrounding him such that it is practically impossible for him to leave where he is.
- It is interesting to note that a false imprisonment may be committed even without the plaintiff’s knowledge,
e.g. by locking him up in his bedroom while he is asleep and then reopening the door before he has
awoken.
- On being informed of these facts the plaintiff lay sue the person who did the locking and reopening of his
bedroom.
- The length of time during which a false imprisonment last is immaterial but is a relevant factor in gauging
the extent of the defendant’s liability in damages.

Defences:

 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 room for 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
- \
 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

- 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.

Trespass to Goods and Conversion Trespass to Goods.

- A trespass to goods in committed by a person who directly and intentionally interferes with goods in the
possession of another without lawful justification.
- The plaintiff may be a person either in possession or entitled to immediate possession of the goods.
- The wrongful interference may be constituted by removing the goods from one place to another (e.g. taking
them away from the plaintiff's possession), using the goods (e.g. wearing the plaintiff's shirt) or destroying
or damaging the goods.
- There are three points to note about this tort; -

a) Firstly, like in any other trespass case, the act complained of (the interference in this case)
must be direct, unlike in nuisance where the act of interference, of the injury, is indirect.
b) Secondarily, it is possession rather than ownership that determines the plaintiff's right of
action; it is a possessor's (as opposed to an owners) rights that are protected.
c) Thirdly, the defendant's act must be deliberate or intentional; wrong is not actionable.

- Note: A finder of lost property is not liable for trespass where the owner of the property is not known to
him and cannot be easily ascertained.
- Conversion: Like trespass to goods, conversion is based on possession and is actionable only if the
defendant's act was intentional but not where the defendant was merely negligent.
- Conversion is constituted by dealing with goods in a manner that is inconsistent with the rights of the
person in possession of the goods or entitled to their immediate possession, e.g. where A intentionally sells
B's goods to C without any authority from B, or where A intentionally delivers B's goods to some other
person without justification at all.
- Every person is presumed to intend the natural and probable consequences of his intentional act s, and it
follows from this that where a person used the property of another in such a way as to risk its confiscation
he is liable for its conversion.
- Moorgate Mercantile Co. Finch, (1962) A borrowed a car from B. He used the car to smuggle contraband
watches, and in the process he was arrested and the car confiscated.
- Held:
 A was liable for conversion of the car because he had intentionally acted in a manner that
was most likely to lead to its confiscation.

B. 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 neighboring occupiers of land: no one should use in property in
a way which is likely to affect his neighbor’s use of his own land.
- Thus, if A and B are neighbors, 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: -
 a. private nuisance
b. Public nuisance.

Private Nuisance

- A private nuisance is committed where 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.
- 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 neighboring 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 60 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.
- Soltan v. De Held, (18510 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: 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 Ryland’s 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 that he 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. 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: 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:
- Mint V. Good (1951) A boy of 10 years was walking along a public foot path when wall 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: 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:
a. De Minimis Non Curat Lex (or Triviality); A person aggrieved by a nuisance can only maintain
an action where the damage suffered is not 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.

b. 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. 63 Note:
whether the use to which 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.
c. 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.
d. 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 neighborhood (the hospital could have conveniently been set up
elsewhere): Metropolitan Asylum District V. Hill (1891). V. 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!
- 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. 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:
  The plaintiff was entitles to succeed in his action. Note: The above case observed that if the trees
encroached onto adjoining land, whether by branches or roots, and caused damage, an action for
nuisance would lie and it was immaterial whether the trees were planted or self-grown.

C. Negligence

- Negligence is one of the most important torts in the law.

- It was defined by Judge Alderson in case o Blyth V. Birmingham Waterworks Co. (1856) in the words:
“The omission to do something which a reasonable man, guided upon those considerations which
ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and
reasonable man would not do”.
- As a tort, negligence consists of the following three elements: -

a. The Duty of Care

b. Breach of the Duty of Care
c. Injury to the Plaintiff

- The Duty of Care: Lord Atkin defined a duty of care in Donohue V. Stevenson (1932) as the duty to take
reasonable care to avoid acts or omissions reasonably foreseeable as likely to cause injury to your neighbor.
- This raises the question: who is my neighbor? Lord Atkin goes on to say that your neighbor in law is a
person who is so closely and directly affected by your act that you ought reasonably to have him in your
contemplation.
- In the case of driver every other road user (including his own passenger and also a pedestrian) is his
neighbor in law; the driver owes all these other duty of care; the duty to have regard to them and to drive or
use his vehicle safely.
- An employer’s neighbor system of work. A patient, too, is a neighbor in law to the hospital authority
responsible for his treatment: the hospital owes him a duty to avoid act that might injurious to his health.
- Also, an occupier of premises owes his visitors a duty to maintain the premises in a safe condition or good
state of repair, while a manufacturer or producer of goods owes his consumers a duty to ensure that his
goods are free from anything that might cause damage or injury to the consumers.
- Professionals like advocates, accountants, doctors, bankers, values, and stock brokers’ e.t.c owe their
clients a duty to take reasonable care in the transaction of the client’s business, failure to do which may
entail liability in negligence.
- Indeed, the circumstances in which a duty to care may arise, and with it liability in negligence, are
numerous and cannot all be enumerated here.
- Duty of care and standard of care: It is important to distinguish between the duty of care and the standard of
care.
- The duty of care, as we have seen, answers the question whether the defendant was under any legal
obligation towards the plaintiff.
- The standard of care, on the other hand, is a yardstick by which the defendant’s conduct is measured; it
answers the question whether the defendant did what a reasonable man would have done in the
circumstances.
- Thus, the standard of care required of every person is that of the reasonable man.
- The duty of care is said to be breached where the defendant fails to exhibit that standard of care required of
him.
- In order words, the defendant is said to have breached his duty of care where a reasonable man in his
position would not have been done what he id.
- It remains to consider who is a “reasonable man” Generally; a reasonable man is a man of ordinary
prudence.
- At least one judge has described him is the “man on the city bus”. Thus, in looking for the reasonable man
we do not look for a person possessed of any special attributes or qualities; but it all depends on the
circumstances of each case.
- In an accident case, for instance, the question to be asked is: What would a reasonable driver, properly
directed himself, have done in the circumstances? In which case what has to be borne in mind done in the
ordinarily prudent driver, not necessarily one who has been to a driving school.
- But where a person professes to have some specialized knowledge or skill, e.g. an advocate, accountant or a
doctor, the standard of care required of him is not that of the man on the city bus; rather he must do what a
reasonable advocate, accountant or doctor, properly directing himself, would have done in the
circumstances.
- Injury to the Plaintiff Proof of the existence of a duty of care on the part of the defendant, and its breach by
the defendant, and its breach by the defendant, is not enough to establish liability in negligence.
- The plaintiff must go further and prove that he has suffered damage, or injury, as a result of the defendant’s
breach of his duty of care.
- But even then, the plaintiff can only recover damages for injuries suffered if a reasonable man in the
defendant’s position ought to have foreseen that his act or omission would result in injury to the plaintiff.
The test applied is therefore that of foresee ability.
- Any injury that was not recovered by the plaintiff. Cases on Negligence Generally: 67 Donoghue V.
Stevenson. (1932) a man bought from a retailer a bottle of ginger-beer manufactured by the defendant. The
man gave the bottle to his lady friend who became ill from drinking the contents. The bottle contained the
decomposed remains of a snail. The bottle was opaque so that the noxious was refilling her glass. The
consumer sued the manufacturer in negligence.
- Held:
 (by the House of Lords): that the manufacturer was liable to the consumer in negligence. Bourhill
V. Young (1943)
- The plaintiff, a pregnant woman, heard the noise of a road accident some distance away and walked to the
scene. On reaching there she suffered nervous shock and subsequently miscarried.
- Held:
 The plaintiff could not recover in negligence because the injury she suffered, „or the manner in
which it was caused, was not foreseeable.
- Note: Had the plaintiff not walked to the scene of the accident she would not have suffered the injury
complained of. Her injury was therefore not foreseeable.
- Compare the following two cases: -
- Dulien v. White & Sons, (1901). The plaintiff a pregnant woman, was sitting behind the counter of her
husband’s bar when suddenly a horse was driven into the bar. Fearing for the personal safety she suffered
nervous shock and gave birth to a premature baby.
- Held:
 The plaintiff was entitled to recover in negligence. Hambrook [Link], (1925).
- The defendants left their lorry at the top of a steep hill. Soon, it began to run away down the hill. The
plaintiff’s wife, who had left her children round a corner, received a severe nervous shock for fear of her
children‟ safety; and as result, she died.
- Held:
 The defendant was liable.
- Fatal accidents where the Victims of Negligence is dead: Negligence sometimes results in the death of the
victim. In such cases, obviously the victim himself cannot issue. But this does not mean that the tortfeasor
is left free.
- The action is brought for the benefit of the members of the victim’s family and may be instituted by his
execute or administrator or by and in the names of the members of his family.
- Proof of Negligence: Like in any other civil action, the burden to prove negligence generally lies on the
plaintiff; he must prove that the defendant owed him a duty of care, that the defendant has breached that
duty and that he (the plaintiff) has suffered damage in consequence.
- In certain cases, however, the plaintiff’s burden o proof is relieved by the doctrine of ‘ Res ipsa loquitur’,
where is applicable.
- Res ipsa loquitur literally means: “The facts speak for themselves”. This is so where an accident occurs in
circumstances in which it ought not to have occurred; e.g. where a car traveling on a straight road in clear
weather and good visibility suddenly swerves off the road overturns; where a crane suddenly collapses;
where a barrel of flour suddenly drops from a warehouse; where a heavy load suddenly falls off a moving
vehicle; e.t.c. in all these (and other like) cases the accident ought not to occur unless there was negligence
on the part of someone presumably the defendant.
- An explanation from the defendant in therefore called for accordingly.
- Where the circumstances of a particular case are res ipsa loquitur, there is an inference of negligence on the
part of the defendant, i.e. the defendant is initially presumed to have been negligent. Because of this, a
provisional burden is put on the defendant to give reasonable explanation as to how the accident might have
occurred.
- In the absence of such explanation there is nothing to rebut the presumption of negligence and the
defendant is accordingly held liable (Embu Public Road Services Ltd. v. Riimi, (1968).
- Res ipsa loquitur is a rule of evidence not of law. It merely assist the plaintiff(where applicable) in proving
negligence against the defendant But before it can be applied , three conditions must be satisfied: -

a) The thing inflicting he injury (e.g. a vehicle) must have been under the control o the
defendant or someone over whom the defendant exercises control (e.g. his driver).
b) There must be no evidence or explanation as to why or how the event occurred.
c) The event must be such that it could not have happened without negligence. Below are some
East African cases on res ipsa loquitur: Msuri Muhhiddin v. Nazzor bin Seif, (1960). A bus
in which the plaintiff was traveling overturned when both the offside rear tyres burst, and as
a result the plaintiff suffered personal injuries.

- There was evidence that the bus was not at the material time being driven at an excessive speed and that the
second defendant (the driver) before driving had satisfied himself that the tyres were good with tread still
on them and therefore had no reason to believe that they were unsafe.
- Held;
a) The doctrine of res ipsa loquitur applied and the defendants could only escape liability if they
could show that there was no negligence on their part which contributed to the accident or that
there was a probable cause of the accident was due to circumstances beyond their control.
b) Since the bus was being driven at a reasonable speed and had been checked to ensure that the
tyres were good, the defendants had discharged the burden imposed on them by the doctrine of
res ipsa loquitur and could not be held liable under the doctrine.

Contributory Negligence:

- Of all the defences available to a defendant in an action for negligence, contributory negligence deserves
special mention.
- Contributory negligence means any act or conduct of the party injured which may have contributed to the
injuries he received.
- Previously, where the plaintiff partly contributed to his own injury in addition to the defendant’s act, the
plaintiff thereby lost his right of action and could not sue the defendant.
- The common law was changed in England in 1945 by the Law Reform (Contributory Negligence) Act.
- In Kenya, it was changed by the Law Reform Act (Cap. 26). The present law provides: “Where any person
suffers damages as the results partly of his own fault and partly of the fault of any other persons, a claim
in respect of that damages shall not be defeated by reason of the fault of the person suffering the
damage, but the damages recoverable in respect 70 thereof shall be reduced to such extent as the court
thinks and equitable having regard to the claimant’s share in the responsibility for the damages”.
- The position is the same as in fatal accident cases. If, for instance, the court would have awarded damages
of sh. 100,000 but the plaintiff is found to be 30% guilty of contributory negligence, liability, will be
apportioned between the plaintiff and defendant.
- In this case, the recover s h. 70,000 only from the defendant. He cannot recover the remaining sh. 30,000
because he himself was responsible or that part of the damage.
- The rule of contributory negligence does not apply in the case of young children because they knot be
guilty of contributory negligence.
- Contributory Negligence of Employees: The Factories Act (Cap. 514) makes provisions relating to the
guarding of dangerous machinery.
- If a worker is injured because a machine is not properly guarded, he may sue his employer for breach of
statutory duty and/or negligence.
- The Act imposes many duties on employers, but the breach of these duties does not always give a civil
remedy. Any omission by the employer will render him liable to his employees, though he can plead
contributory negligence as defence.
- Negligent Misstatement: Previously, the general rule was that a person was liable of negligent acts but not
for negligent misstatements.
- In Candler V. Crane, Christmas & Co. (1951), it was held that an accountant who negligently prepared
certain accounts for a particular transaction was under no liability in tort in respect of those accounts, even
though a plaintiff in reliance on the accounts invested money in a company and suffered financial injury as
a consequence.
- At present, any negligent misstatement is also actionable in law of tort if this statement leads to say
financial loss incurred by the person who acts believing such a statement.

D. Defamation

- The tort of defamation is constituted by the publication of a false statement, without justification, which
tends to lower the plaintiff's reputation in the estimation of right-thinking members of society or to injure
him in his office, trade or profession, or which causes him to be shunned or avoided.
- No person should therefore publish a false statement which adversely affects the reputation of another, if
such statement is without justification; or he may do so only at the risk of incurring liability for defamation.
Instances of defamation are given in the cases cited below.
- Elements of Defamation: -

a. The defendant must have made a false statement. This is important because no action may be
maintained by the plaintiff on the basis of a true statement.
b. The statement must be defamatory. This means that it must be such that its effect is to arouse odium,
contempt or ridicule from right-thinking members of society. In other words it must tend to lower the
reputation of the person referred to in the estimation of such members of society.
- Thus, where A makes a statement that B has VD or AIDS, or that B is a criminal or a crook, or
untrustworthy e.t.c., and right-thinking members of society react to the statement by shunning or avoiding
B, or ridiculing him e.t.c., clearly such statement is defamatory and A may only escape liability, if he can
successfully rely on one or more of the defences which are discussed below.
- Function of the Law Defamation The law of defamation protects a person reputation.
- Every person has right to a good name and no one should unduly interfere with this right, it also protects a
person's business interest.
- This is why a false statement which tends to injure the plaintiff in his trade, occupation or profession is a
actionable in defamation.
- Types of Defamation; -

a. Slander:

- Defamation in a transient or non-permanent form, including defamation by word of mouth, is known as

slander.
- As already pointed out, slander is actionable only upon proof of damage; the plaintiff's action can be
sustained only if he proves that he has suffered some damages as a result of the defendant's defamatory
statement.
- In exceptional circumstances are as follows: -
 Where the statement imputes a criminal offence it is 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.
- After a reporter form the defendant newspaper had visited the Lord's Bar a statement appeared in the paper
alleging that all the ladies in that bar had V.D. (veneral disease) and that the manager of the bar employed
only such ladies. The proprietor of the bar and one of the bar-maids sued.
- Held:
 The plaintiffs were entitled to damages and there was not need to prove damage.

b. Libel

- Libel differs from slander in the following respect.

- First, it is defamation in a permanent or a non-transient form, including written matter like a letter or an
article, scandalous pictures (particularly where they are accompanied by a defamatory statement), film or
news tapes e.t.c.
- Where defamatory matter is dictated to a secretary and she subsequently transcribes it, the act of dictation
constitutes a slander while the transcript is a libel.
- Repetition - every repetition of defamatory matter constitutes a fresh cause of action and anyone who
repeats it may be sued.
- A person who takes part in the distribution of such defamatory matter, whether by way of sale (in the case
of a newspaper) or otherwise, is equally liable for defamation.
- Defamation of Deceased Persons: Defamation of a deceased person is not a tort but the person responsible
may be a prosecuted criminally if it is intended to hurt the feelings of the deceased's family or near
relations.
- A number of defences are available to a defendant sued for defamation. The most obvious ones arise from
the elements of the tort.
- Thus, a defendant may in appropriate circumstance plead that there was no publication of the matter
complained of, or that it does not refer to the plaintiff, or (in ordinary cases of slander) that no damage has
been suffered by the plaintiff.
- In addition, the defendant may avail himself at least one of the general defences e.g. consent of the plaintiff
to the publication of the matter complained of.
- Besides these, there are certain defences which have particular relevance to this tort:

 Justification

- Truth, or justification, may be pleaded as a defence where the matter complained of is true and the
defendant fails to establish the truth of the matter, the case against him becomes more serious and
aggravated damages may be awarded against him.

 Fair comment

- Fair comment on a matter of public interest is another defence liable the defendant in a defamation suit.
- There must be facts truly stated, on the bases of which a comment is made; and the fact must not be mixed
up with the comment in such a way that it is difficult to distinguish the one from the other.

 Absolute Privilege

- Certain matters are not actionable at all in defamation, and are said to be absolutely privileged.
- They include statement made by judges or magistrates in the course of judicial proceeding as well as those
made by members of parliament in the course of a parliamentary debate, and also communications between
spouses.

 Qualified Privilege

- An occasion is privilege, according to Pullman v. Hill Ltd. (1891) "when the person who makes the
communications has a moral duty to make it to the person to whom he does make it, and the person who
received it has an interest in hearing it."An example is where a Head of Department makes a report to his
superior about a subordinate official in his Department.
- He has a duty to make such communication to his superiors and the superiors have a corresponding duty (or
interest) to receive it.

 Apology or Offer of Amends

- The defendant is at liberty to offer to make a suitable correction of the offending statement coupled with an
apology and/or notice of persons to whom the statement has been published that the words are alleged to be
defamatory of the plaintiff.

Remedies:

- The following remedies are available to the aggrieved party on the publication of defamatory statements:

a). Damages

- In actions of defamation, the plaintiff is entitled to recover damages for injury to his reputation and also to
his feelings; injury to feelings is usually assumed and the plaintiff should recover damages for mental pain
 and suffering and anxiety arising out of his fear of the consequences of the publication, in addition to
compensation for the insult suffered and the pain of false accusation as well as the irritation and annoyance
experienced as a result of the defamation.
- The extent to which the defamatory matter is circulated is relevant in determining the quantum of the
damages.
- But the plaintiff must take steps to mitigate the damage e occasioned by the defamatory statement he is
entitled only to nominal damages: Sekitoleko v. Attorney General (1978). A failure by the defendant to
withdraw or retract the defamatory statement, or to publish an apology, entitles the plaintiff to aggravated
damages: Adimola v. Uganda Times (1978).

b). Apology

- An apology, particularly where it is not equivocal, is another remedy available to the plaintiff.
- This is because it has the effect of correcting the impression previously made by the offending statement
about the plaintiff.

c). Injunctions

- The court may also grant an injunction i.e. to issue the orders for restraining the publication of a libel.
- But the plaintiff must for prove that the defamatory statement is untrue and its publication will cause
irreparable damage to him.
- Limitation of Action: The Limitations of actions (cap.22) contains the period limits within which the
actions in tort can be brought.
- This act provides: -

i. An action in tort must be brought within three years of the cause of action occurring. Where the
damage arising from the tort does not become immediately apparent, the tie begins from the date
of damage accruing.
ii. Where the plaintiff is under disability (such as infancy or insanity) at the time when the tort is
committed, time does not begin to run until disability ceases.
iii. Where the tort consists of continuing wrong, anew cause of action a rises daily from when the tort
is committed, and the plaintiff can recover damages for any damage suffered within the limitation
periods.
iv. Where the right of action is based on fraud, or the right action was concealed by fraud, limitation
will run from the date of discovery, or from the time of plaintiff could have discovered it within
reasonable ordinary diligence.
v. An action to recover a contribution from a joint tortfeasor under the law Reform Act (cap.26)
cannot after the end of two years from the date of which that right accrued to the first tortfeasor.
vi. Where there has been successive conversion of goods cease after the end of three years from the
date of first conversion 76 The period of limitation in cases of libel and slander is twelve months
(Defamation Act. Cap. 36)

- Survival of Actions: A common law maxim is "actio personalis moritur cum persona." It means a
personal right of actions dies with the person.
- Thus it was not possible to bring an action for personal wrongs of a deceased person. This general rule was
abolished by the Law Reform Act (Cap.26) of Kenya.
- This act does not apply in cases of defamation, seduction or to claims for damages on the grounds of
adultery.
- In all other cases, the Act provides: -
 a) Where an action exists against a person at his death, it survives against his estate, provided that
proceedings had been commenced before his death, or that proceedings are taken within six
months after his personal representatives have taken out representation.
b) Where a right of action exists for the benefit of a person, it survives his death, subject to the
limitation periods in the limitation of actions Act (Cap.22).

- Passing off: When a person passes of his goods or business as those of another reputable business firm, it is
known as a tort of passing off.
- This tort can take the following forms: -

i. Using the name of a reputable business firm.

ii. Imitating a trade mark, description, wrapping etc. The tort results in damaging the business
interest of a firm. In these cases, the plaintiff may sue not only for damages, but may ask for an
injunction also.

- Malicious Falsehood: This tort is committed when a person makes a false and malicious statements and
such statement cause a financial loss to another person. These statements may relate to the proprietary
interest of 77 another person. For example, if 'X' makes an allegation that 'Y' is offering certain goods for
sale, in infringement of a patent right owned by 'Z' this statement is not true.
- The essentials of malicious falsehood are; -

a) The statement of false.

b) There is malice (i.e. ill-motive).
c) It tends to make others act on the basis of this statement
TOPIC 3; LAND LAW

Specific objectives

- At the end of this topic the trainee should be able to;-

a. Explain nature of the land ownership
b. Explain the nature of property
c. Define land
d. Explain leaseholds
e. Outline periodic tenancies
f. Explain implied rights and liabilities of lease
g. Explain the doctrine of waste and liabilities of the lease to repairs
h. Outline the determination of lease

1. Ownership of land

- Land ownership in Kenya is historically a long and complicated subject.

- This is due to the following three main factors:-

a) In Kenya there is a plural system of land law.

- That is;-
i. The received land law system which is based on the mode of life of the English people.
ii. Customary land law system, which is based on the socio-economic practices of various
tribes living in the country, a situation which bends itself to internal conflicts of law.
b) The subject entails many technical, old and peculiar concepts e.g.; estate, tenure etc. all of which have
their origin in the English language of middle ages. They still form part and parcel of Kenya’s legal on
land law study.
c) Many statutes have been passed without repealing the former statutes or codifying them into one Act, with
the result that it is not easy to tell which statute applies to a given plot of land e.g. Registration statutes.

- Ownership implies a complete and total control a person can exercise over land.
- It is that interest in land that is superior to every other existing interest on land. It is unrestricted use and
superior to any other.
- It is a right to possess either mediate or immediate, and it is the right to use the property in any way or
manner whatsoever.
- The 2010 constitution, however, classifies land ownership into three categories: -

 Private land ownership

 Communal land ownership
  Public land ownership

2. Nature of property

a) Land and chattels

- The term chattel refers to anything (property) a person can possess in a physical form or a
tangible/intangible movable asset other than the real estate. Eg; furniture, car, patent rights etc.
- The chattels may indirectly affect the value of land depending on how they have been fixed on the parcel of
land in question.

b) Land and politics

- Land as a property, tends to appreciate in value with time. It may, though rarely depreciate in value based
on existing extra ordinary condition.
- Such conditions are majorly caused by the political atmosphere within a given area.
- Political environment may be friendly, thus leading to peaceful co-existence and a rise in the value of land
or hostile leading unfriendly environment thus land within such hostile areas tends to depreciate
- .
c) Diverse notions about land

- Land has a valuable property, possesses various characteristics:

 Land is not moveable
 Naturally given
 Appreciates in value with time (unless the existing conditions aren’t good which may lead to
depreciation).
- Land can there be seen as artificial or natural depending on the factors like the fixtures on it that may affect
its value.

3. Definition of land

i. Real property

- The two fundamental doctrines in the law of real property are:

 The doctrine of tenures: all land is held of the Crown, either directly or indirectly, in one or
other of the various tenures;
 The doctrine of estates: land held in tenure is also held for an estate i.e. for some period of
time.

ii. Real actions and free holds

iii. Personal actions and lease holds
iv. Chattels real and chattels personal
v. The nomenclature of interest holders in land
vi. The corpus and attributes
vii. The layman’s definition
- A layman’s notion of land mostly depends on the perspective from which an individual utilizes the land.
 e.g. Land is the surface of the earth which can be utilized agriculturally or industrially etc.
viii. The statutory definition
- Legally, the term land includes land covered with water, all things growing on land, buildings and
fixtures/other things permanently fixed on land.

4. Leaseholds

 Definition

- Leases were originally regarded as personal business arrangements under which one party allowed the
other the use of his land in return for a rent, in other words, they were personal contracts.
- Leaseholds are still regarded as personality in law, but because they are also recognized as estates in land
they have a somewhat paradoxical technical name - chattels real.
- There are (amongst others) two important differences between freehold and leasehold estates:-
 When a leasehold estate is created, it is always for a fixed period, or for a period that can be
made certain by a notice to quit.
 Ownership of a freehold estate is the nearest an individual can get to owning the land itself
and the law regards such an interest as realty (real property). A lease, however, is not
included in the category of realty, but is classified as personality (personal property).

 Characteristics of a lease

 Statute and common law

 A lease as a contract
 A lease as an estate in land
 A lease as a conveyance
 Requirement for registration
 Defined area
 Commencement of lease
 Rent
 Judicial interpretation

 Periodic tenancies

- A periodic tenancy is a tenancy from year to year, half year to half year etc.
- It is usually in respect of agricultural or manufacturing tenancies, or month to month with regard to tenancy
for non-agricultural or non-manufacturing purposes
- A periodic tenancy is characterized by an element of continuity.
- Whereas a fixed term estate determines automatically at the expiration of the term, a periodic tenancy does
not come to an end until proper steps have been taken to end it i.e. required notice must be given to
terminate it.
- Tenancies in possession vary depending on the terms of agreement between the tenant and the land owner.
- Tenancy at will is created by express will. As long as the period is not fixed, the tenancy is at will. On the
other hand, the fixed tenancies have fixed periods within which they can be exercised.
The lessor has the right to evict the tenant from the premises at any time.
- Tenancy at will may be expressly terminated by either party at any time.
- The strict rules that relate to notice to quit do not apply here i.e., anything that amounts to a demand for
possession will suffice.
- Termination may also be implied e.g. If the landlord does anything which is inconsistent with the
continuance of tenancy, like removal of any necessary material from the land, or the tenant does anything
incompatible with his limited rights as where he parts with possession, the tenancy will determine.
- Tenancy at sufferance is the smallest known to law. It exists where one comes into possession of land by
lawful title, but keeps it afterwards without any title at all.
- A tenant at sufferance differs from a trespasser in that his original entry was lawful and from a tenant at
will in that he stays on without the consent of the landlord.
- The death of either party, determines the tenancy.

 Implied rights and liabilities of lessee

- Implied rights and liabilities of lessee refer to the rights that are not directly or explicitly stated, or
expressed in the terms of agreement.
- They are implicitly suggested in the contract.
- The any party privy to the agreement is therefore liable to fulfilling them.
- This includes: -
 Corresponding rights and limitation
 Right of ingress and ingress at common law

 Doctrine of waste and the liability of the lessee to repairs

a. Definition of waste

- The doctrine of waste refers abuse of land or property.

- There are 3 types of waste: -
 Ameliorating waste; which involves a change of system of husbandry which has the effect of
enhancing the value of the land. Technically this is waste because it destroys an owner’s
evidence of title.
 Permissible waste; arises from mere act of omission, not commission. It is generally the result
of allowing a building or buildings to fall into a state of decay.
 Voluntary waste; is a wrong of commission consisting of a positive act of injury to the
property e.g. pulling down or altering houses, changing the course of husbandry, opening pits
or mines, cutting down trees etc.
b. Improvement and use of land

- Rightful users of land allowed putting any piece of land in their possession to the rightful use as per the laid
down laws and by-laws.

c. Liability of lessee to carry out repairs

- The lessee is liable to carry out any repairs for the damages caused to the property or land leased or rented.

d. Equitable waste

- Equitable waste is harm to the reversionary interest in land that is inconsistent with fruitful use.
- Is a cause of action recognized only by courts of equity and is not regarded as legal waste in courts of law.
E.g. cutting down tress
e. Liability to carryout repairs under R. L. A
f. Repairs defined
  Determination of leases

i. Notice
ii. Effect of waiver of notice
iii. Waiver of notice
iv. Effect of waiver of notice

TOPIC 5: LAW OF CONTRACTS

Specific objectives

- At the end of this topic, the trainee should be able to; -

a. Recognize the formation of a contract

b. Outline the factors that make a contract invalid
c. Explain the limits of contractual obligation
d. Explain the performance and discharge of a contract
e. Outline the remedies for a breach of contract

1. Introduction

- The law of contract is the foundation upon which the superstructure of modern business is built.
- In business transactions quite often promises are made at one time and the performance follows later.
- The law of contract lay down the legal rules relating to promises, their formation, their performance,
and their enforceability.
- The law of contract in Kenya was first based on the Contract Act 1872 of India. This Act does not apply
now in Kenya except to contracts made before 1st January, 1962.
- The law of Contract (Cap. 23) states that the English Common law of contract is applicable since 1st
January, 1961.
- Section 2 (10 of this Act provides: “Save as may be provided by any written law for the time being in
force, the common law of contract, as modified by the doctrines of equity, by the Acts of Parliament of
the United Kingdom applicable by virtue of subsection (2) of this section and the Acts of Parliament of
the United Kingdom specified in the Schedule to this Act to the extent and subject to the modifications
mentioned in the said Schedule, shall extend and apply to Kenya”.
- It means that the common law of England relating to contract, subject to modifications, is applicable in
Kenya.
- The date of reception of the common law of contract is 12th August 1897. English decisions after this date
are only of persuasive authority.

2. The Nature of Contract

- A contract is an agreement of promises which is legally binding or enforceable by law.

- A contract has been defined by Sir William Anson in the words: -
“A legally binding agreement between two or more parties, by which rights are acquire by one or more
to acts to forbearances on the part of the other or others”.
- The law of contract imposes an obligation on every person to honor his legally enforceable promises,
failure to do which renders him liable to compensate the injured party or otherwise at torn for his conduct.
- What is intended here is to promote commercial relations and since commerce generally entails individual
or personal interactions, the obligation imposed by a contract is, in general, created by the parties
themselves.
- The parties must, however, act within the ambit of the law.

3. Essential of Valid Contract

- The essential elements of valid contract as follows:-

a. Offer and acceptance

- There must be a lawful offer and a lawful acceptance of the offer, thus resulting in an agreement.
- The adjective lawful implies that the offer and acceptance must satisfy the requirements of the Contract Act
in relation thereto.

b. Intention to create legal relation

- There must be an intention among the parties that the agreement should be attached by legal consequences
and create legal obligations.
- Agreements of social or domestic nature do not contemplate legal relations, and as they do not give rise to a
contract e.g. an agreement to dine at a friend’s house or a promise to buy a gift for wife are not contracts
because these do not create legal relationship.
- In commercial agreements an intention to create legal relations is presumed.
- Thus, an agreement to buy and sell goods intends to create legal relationship is a contract provided other
requisites of valid contract are present.

c. Lawful Consideration

- Consideration has been defined as the price paid by one party for the promise of the other.
- An agreement is legally enforceable only when each of the parties to it gives something and gets
something.
- The something given or obtained is the price for the promise and called consideration.
d. Capacity of parties

- The parties to an agreement must be competent to contract, otherwise it cannot be enforced by a court of
law.
- In order to competent to contract, the parties must be of the age of majority and of sound mind and must
not be disqualified from contracting by any law to which they are subject.

e. Free Consent

- Free consent of all parties to an agreement is another essential element of a valid contract.
- Consent - means that the parties must have agreed upon the same thing in the same sense.
- There is absence of free consent, if the agreement is induced by; -
 Coercion
 Undue influence
 Fraud
  Misrepresentation
 Mistake.
 Illegality

f. Lawful object

- For the formation of a valid contract, it is also necessary that the parties to an agreement must agree for a
lawful object.
- The object for which the agreement has been entered into must not be fraudulent or illegal or immoral or
opposed to public policy or must not imply injury to the person or property of another.

g. Possibility of Performance

- Another essential feature of a valid contract is that it must be capable of performance.

- If the act is impossible in itself, physically or legally, the agreement cannot be enforced at law.
- All the above elements must be present.
- If one or more elements are absent then the contract may be void, voidable or unenforceable.

Classification of Types of Contracts

- Contracts may be of various types. These may be classified as under:-

i. Express and Implied Contract

- An express contract is one in which the parties specifically agree about the nature and terms of their
relationship.
- There is then said to be an express agreement. For example, if A agrees to sell his goods to B for Ksh.
200/= and B agrees to buy the goods at that price, there is said to be an express contract for the sale of
goods at an agreed price.
- On the other hand, there is no specific agreement in an implied contract.
- The conduct of the parties, as well as all the surrounding circumstances, must be taken into account in order
to ascertain whether or not a contract exists.
- Thus where A hires a taxi and boards it there is an implied contract that the taxman shall convex A up to
his destination and that A shall pay such fare is usually paid for that trip.

ii. Unilateral and Bilateral contracts

- A Unilateral Contract is one in which only one party is bound.

- It is a rare type of contract which arises, for instance, where there is an offer of a reward.
- Thus, if A offers a reward to anyone who will recover his lost property, no one is bound to recover the lost
property but A himself is bound to give the promised reward to anyone who might recover the property.
- Most contracts are bilateral. A bilateral contract is one in which both parties are bound. Thus, if A agrees to
sell his goods to B and B agrees to buy them at a stated price, both parties are bound. A is bound to deliver
the goods to B and B is bound to accept them to pay the price.

iii. Valid, Void and Voidable Contracts.

- A valid contract is an agreement enforceable by law.

- An agreement becomes enforceable by law when all the essentials of a valid contract discussed above are
present.
- A void contract is an agreement which is not binding or enforceable by law. This is because it has no legal
effect at all and is, therefore, not binding on any of parties.
- A contract is rendered void in certain cases where both parties were mistaken, where it is prohibited by law
of where it is entered without consideration e.t.c.
- A voidable contract is one which is enforceable by law of the option of one of the parties. Usually a
contract becomes voidable when this consent of one of the parties to the contract is obtained by undue
influence, or misrepresentation.
- Such a contract is voidable at the option of the aggrieved party of the party whose consent was s caused.
Where there is a voidable contract, the party entitled to avoid it must do so within a reasonable time.
- This may be done by A notifying the other party, B, that he (A) does not intend to be bound by the contract.
- Where it is no feasible to give notice, e.g. where B is a rogue whose whereabouts are not known A can still
effectively terminate the contract by doing everything possible to show that ho does not intend to be bound
by the contract.
- It is sufficient, for instance, to make a report to the police. Car and Universal Finance Co. V. Caldwell
(1965) X bought a car from the defendant and paid by cheque. X took the car with him. The cheque
bounced the next day, but X had disappeared. The defendant reported the matter to the police and the
Automobile Association, requesting them to recover the car. Subsequently, X sold the car to Y, who knew
X’s title to be defective. Y in turn resold the car to the plaintiffs, who bought in good faith.
- Held:
 By setting the police and Auto mobile Association in motion, the defendant had clearly
shown that he intended to resend the contract; this meant that the ownership of the car 98
reverted to him and therefore Y had no title to pass to the plaintiffs. The defendant was
therefore entitled to recover the car from the plaintiffs. The right to avoid the contract is lost
if the innocent party, upon discovering the true facts, subsequently affirms it. It is also lost
where an innocent third party had acquired an interest in the subject matter of the contract,
which is likely to be affected by the avoidance of the contract.
- Newtons of Wembley, Ltd. V. Williams (1965) X bought a car from the plaintiff and paid by cheque. He
took the car with him. The cheque was dishonored, but in the meantime X had disappeared. X subsequently
resold the car to the defendant, who bought in good faith. The plaintiff sought to recover the car from the
defendant.
- Held:
 Title to the car had passed to the defendant; it could not therefore be recovered by the
plaintiff.
- Notes: The facts in the above two cases are similar. In Caldwell’s Case the car was recovered because the
innocent purchaser acquired it from a seller who had no title since the contract had already been rescinded;
the seller had bought from X in bad faith. On the other hand, in Williams’ Case the car could not be
recovered because the innocent purchaser has acquired it, in good faith, from a person who had right to sell
it.
- There are many other instances of voidable contracts, e.g. contracts entered, into under a unilateral
mistake, duress or undue influence as well as minors’ contracts.

iv. Specialty Contracts and simple Contracts.

- A specialty contract is also known as a contract under seal.

- It is an instrument in writing signed and sealed by the party to be bound by it and delivered by him to the
person for whose benefit it was made.
- Thus, writing, signature, sealing and delivery are the four essential characteristics of this type of contract,
of which a Deed is the best example (e.g. a Deed of Conveyance under which property is transferred by one
person to another).
- “Delivery” is used here not in the sense of physical delivery; what is required is an intention to be bound;
Vincent V. Premo Enterprises 99 Ltd. (1969). If A executes a deed conveying his property to B, with an
expressed intention that he is to be thereby bound, A, will be bound even if the deed was never physical
delivered to B.
- A central feature of this type of contract is that its validity is independent of consideration i.e. B need not
have furnished anything of value as pre-condition for enforcing A’s promise.
- A simple contract is an agreement, express or implied, which gives rise to legal obligations.
- A simple agreement may be in writing or agreed orally, or even be implied from the conduct of parties.
- A simple contract may be made also made partly orally and partly in writing. In England, conveyances of
land or leases of land for periods of more than three years, transfers of British ships and gratuitous promises
must be under seal.
- Section 2 (1) of the Law of Contract Act states that no contract in writing shall be void or unenforceable
merely on the ground that it is not under deed.
- But such contracts, if not made under deed must be supported by consideration.
- The following contracts must be in writing:-

 Bills of Exchange and Promissory Notes.

 Representations regarding credit worthiness or character.
 Acknowledgement of Statute Barred Debts.

- The following contracts must be evidenced by writing: -

a. Contracts of Guarantee
b. Contracts for the Sale of Land
c. Contracts for the Sale of Goods over Two Hundred shillings
d. Employment Contracts over one month
e. Hire Purchase Contracts
f. Money Lending Contracts

v. Illegal Contracts and Unenforceable Contracts

- An illegal contract is one which is prohibited by law or which contravenes a provision of law or one which
is contrary to public policy.
- Where both parties are guilty of the illegality they are said to be in pari delicto and none of them can
enforce the contract.
- But where only one of the parties is guilty of the illegality, the contract may in certain circumstances be
enforced by the innocent party.
- Thus an agreement to commit murder or assault or robbery would be illegal.
- Void and illegal contracts, both cannot be enforced by law but the two differ in some respects.
- All illegal agreements are void but all void agreements are not necessarily illegal. For example, an
agreement with a minor is void as against him but not illegal.
- Similarly, when an agreement is illegal, other agreements which are incidental or collateral to it are also
considered illegal, provided the third parties have the knowledge of the illegal or immoral design of the
main transaction.
- For example, A engages B to murder C and borrows KSH. 5000 from D to pay B. We assume D is aware of
the purpose of the loan.
- Here the agreement between A and B is illegal and the agreement between A and D is collateral to an
illegal agreement.
- As such the loan transaction is illegal and void and D cannot recover the money. But the position will
change if D is not aware of the purpose of the loan. In that case, the loan transaction is not collateral to the
illegal agreement and is valid contract.
- An unenforceable contract is one which though valid, cannot be enforced because none of the parties can
sue or be sued to it. For instance, section 6 (1) of the Sale of Goods Act (Cap 31) provides. “A contract for
the sale of any goods of the value of two hundred shillings or upwards shall not be enforceable by action
unless the buyer shall accept part of the goods sold, and actually receive the same, or give something in
earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the
contract be made and signed by the party to be charged or his agent in that behalf”
- Unless the conditions laid down in the above provision are complied with, the contract cannot be enforced.
The contract itself is valid but its enforceability depends on whether the above provision has been complied
with.

vi. Contracts Uberrimae Fidei

- A contract uberrimae fidei is one in which only one of the parties has full knowledge of all materials facts,
which he is under a duty to disclose.
- The best example is an insurance contract.
- The insured is possessed of all facts which are material to the contract; but the insurer has no possession of
these facts and the insured is under a duty to disclose them to him.
- Contracts Uberrimae Fidei are said to be contracts of Utmost good faith, particularly on the part of the party
under a duty to disclose material fact.
- Any failure to exhibit good faith, or any show of outright bad faith, amounts to a breach of the contract
entitling the other party to be relieved from his own obligation under the contract.
- Other examples of contracts Uberrimae Fidei includes:-

 Family settlements (where full disclosure is required);

 Contracts for the sale of land (where the seller must disclose defects relating to title);
 Contracts of partnership (where every partner must exhibit utmost good faith in his dealings
with the other partner (s).
vii. Contracts of Record

- A contract of record consists of the judgment of court.

- Such contracts are formed by an entry on the court records.
- The rights and obligations of the parties are put on court record and the resultant relationships between
them are said to constitute a contract of record.
- These contracts includes:-

 Judgment of a Court: - The previous rights under a contract are merged in the judgment of a
court. This judgment constitutes a contract of records between the parties of the contract.
We assume R owes T Ksh. 2,000/= on a contract. T sues R and court issues a judgment that
T must be paid by R Ksh. 1,500/= In this case, the previous rights become merged in the
judgment of the court.
  Recognizances: In the criminal cases, the court may bind the accused to be of good
behavior and keep peace. The person so bound acknowledges that a specified sum will be
paid by him to the state if he fails to observe the terms of recognizance.

- In the contracts of record, the element of consent of both parties is absent. For this reason, these contracts
are not true contracts.

viii. Executed contract

- A contract is said to be executed when both the parties to a contract have completely performed their share
of obligation and nothing remains to be done by either the party under the contract.
- For example, when a bookseller sells a book on cash payment it is an executed contract because both the
parties have done what they were to do under the contract.

ix. Executory contract

- It is one in which both the obligations are understanding, one on either party to the contract, either wholly
or in part, at the time of the formation of the contract.
- In other words, a contract is said to be executory when either both the parties to a contract have still to
perform their share of obligation or there remains something to be done under the contract on both sides.
- For example, T agrees to coach R, a C.P.A student, from first day of the next month and R in consideration
promises to pay to T Ksh. 1,000 per month, the contract is executory because it is yet to be carried out.

x. Quasi-Contracts

- This type of contracts have little or no affinity with contract.

- Such a contract does not arise by virtue of any agreement, express or implied between the parties
circumstances.
- For example, obligation of finder of lost goods to return them to the true owner or liability of person to
whom money is paid under mistake to replay it back cannot be said to arise out of a contract even in its
remotest sense, as there is neither offer and acceptance nor consent, but these are very much covered under
quasi contracts.
- These are known as quasi contracts because these have certain relations resembling those created by
contract.
- A quasi contract is based upon the equitable principle that person shall not be allowed to retain unjust
benefit at the expense of another.
4. Formation of a Contract

- A contract is formed by an offer by one person and the acceptance of this offer by another person. The
intention of both parties must be to create a legal relationship and they must have the legal capacity to make
such a contract.
- There must be also some consideration against the contract between the two parties.
- The formation of contract involves the following factors:-

 The offer
 The Acceptance
 Consideration
 Contractual capacity
  Intention To Create A Legal Relationship

a. The Offer

- An offer is defined as an expression of willingness to enter into a contract on definite terms, as soon as
these terms are accepted.
- It is made by a person known as the offeror and addressed to the offeree.
- Thus, if A writes to B stating his desire to sell his property to B at a specified price, A is said to have made
an offer to B., A is the offeror and B the offeree.
- An offer may be express (where the offeror specifically makes his intentions known to the offeree, whether
in writing or by word of mouth), or it may be implied from the conduct of the parties, particularly the
offeror.
- An offer is valid only if its terms are definite, but not where they are vague. Offer and “Invitation to Treat”
An offer, as defined above, must be distinguished from an invitation to treat, The latter is merely an
invitation to make an offer and no contract can result from it alone.
- The best example is afforded by the display of goods in a shop or supermarket.
- According to decided cases this amounts to an invitation to treat, not an offer; it is the customer or
prospective buyer who makes an offer to the shopkeeper or attendant, or cashier, by picking up the goods
and expressing the desire to buy them.
- Pharmaceutical Society of Great Bruam V. Boots (1953) the defendant had a self-service store in which
certain listed drugs were displayed on the shelves. It was an offence to sell such drugs unless the sale was
done under the supervision of a registered pharmacist. A customer selected some of the drugs from the
shelves. The defendants had placed a registered pharmacist on duty at the cash desk near the exit, but not
near the shelves. The defendants were charged with the offence of selling listed drugs without the
supervision of a registered pharmacist. If the sale took place when the customer picked up the drugs from
the shelves, the defendants would be liable; but if the sale took place at the cash desk where the registered
pharmacist was stationed, then the defendants were not liable. The court therefore had to determine where
the sale took place.
- Held:
 The defendants were not liable because the display of goods on the shelves was merely an
invitation to treat, not an offer; it was customer who made an offer by selecting the article
and taking it to the cashier.
- Fisher V. Bell (1960) A shopkeeper displayed a flick-knife in his shop window with a price tag behind it.
He was charged with the offence of offering a flick-knife for sale. The court had to determine whether the
shopkeeper’s act amounted to offering the flick-knife for sale.
- Held (Lord Parker, CJ): “It is clear that, according to the ordinal law of contract, the display of an article
with a price on it a shop window is merely an invitation to treat. It is in no sense an offer for sale the
acceptance of which constitutes a contract”.
- Since there was no offer for sale, the shopkeeper was not liable.
- Another example of an act that amounts to an invitation to treat rather than an offer is to be found in
advertisements inviting tenders.
- The advertiser merely invites tenders for a particular purpose. It is the tenderer who, by his tender, makes
an offer to the advertiser and the latter is thereby converted into an offeree; and it is upon the offeree to
accept or reject a particular tender. (A tender is an offer for the supply of goods or services).

b. The Acceptance

- An acceptance is an ascent to the terms of an offer.

- It must correspond with the terms of an offer, and it is for this reason that a counter offer, cross-offer or
conditional assent is not an acceptance in the legal sense of the word.
- An acceptance may be made in any way that is expedient, but sometimes the offer itself may dictate the
mode of acceptance.
- For example, the offeree may be required to notify his acceptance in writing or to lodge it at a named place
or to a named person, or to communicate it within a specified period of time, e.t.c.
- Generally, the prescribed mode of acceptance must be adhered to; it is only in exceptional circumstances
that an equally reflective mode of acceptance may be upheld.
- An acceptance may be express (where the offeree directly assents to the terms of the offer), or it may be by
conduct.

c. Consideration

- The offer and acceptance are not enough to bring about a valid and binding contract.
- In the case of simple contracts, these are required to be supported by consideration, otherwise the contract
is void.
- Specialty contracts are an exception. Why does the law insist on consideration before a valid contract can
be made?
- The rationale behind this requirement is that the law of contract generally enforces only bargains and not
bare promises for which no value is given.
- This follows from the fact that, the law of contract is generally intended to promote commercial relations.
- These are relations which necessarily impose an element of bargain, an element without which there would
be no commerce at all.
- Indeed, it is on this element that the whole doctrine of consideration is centered.
- When we talk of bargain, what we have in mind is an exchange of relationship within the context of a
money economy.
- This is clear from the fact that a party seeking to enforce a contract must prove that consideration has
moved from him and that it consists of money or money’s worth.
- Types of Consideration: -

 Executory of Consideration

- The word executory is used to denote that the promised act is yet to be done.
- Thus A promises to sell and deliver to B sacks to charcoal in return for a price to be paid by B. Before
delivery of the charcoal, A’s promise to B is in the nature of executory consideration for B’s promise to pay
the price.
- Similarly, before payment of the price, B‟s promise to A is in the nature of executory consideration for A’s
promise.

 Executed Consideration

- The word executed is used here to denote that the promised act has already been done.
- To take the example given above, after A has delivered the charcoal to B, A is said to have furnished
executed consideration for B’s promise to pay the price.
- Similarly, after B has paid the price he is said to have furnished executed consideration for A’s promise to
sell and deliver to him three sacks of charcoal.
- Under a given contract, it is possible for the consideration furnished by one of the party to be executory,
while that furnished by the other party is executed.
- Thus, in the above example if it is agreed that A is to deliver the charcoal in a week’s time but that B is to
pay the price immediately, at that stage consideration furnished by A is executor while that furnished by B
is executed.
- The distinction between executory and executed consideration is particularly important while considering
performance of the contract by the parties and the remedies available to the innocent 107 party in the event
of a breach of the contract by the other party.
- Thus where B has furnished executed consideration by paying the price but A has failed to deliver the
charcoal B is said to have performed his part of the contract and he is entitled to recover the price from A
ad also to damages from A for breach of contract; whereas if B’s consideration was merely executory but
he was willing to pay the price, E would be said t be willing to perform the contract ad he would in this
case be entitled to damages alone.

 Past Consideration.

- Once negotiations are over and the parties have struck a bargain, any subsequent or fresh promise made by
either party in relation to that bargain is known as past consideration.
- The law is that for d promise to constitute valid consideration is must have been made during the
negotiations.
- As such, past consideration is not valid consideration for the bargain in respect of which it is given; it is in
fact no consideration at all and the promises(promised party ) cannot rely on it.
- After selling a horse to the plaintiff, the defendant promised the plaintiff in the following terms: in
consideration that the plaintiff at the request of the defendant, had bought of the defendant a certain horse,
at and for a certain price, the defendant promised the plaintiff that the said horse was sound and free from
vice.
- But the horse proved not to be “sound and free from vice” and the plaintiff sued on the above
- Held:
 The defendant’s promise was given after the d sale and without any fresh consideration; it
therefore amounted to past consideration, which the plaintiff could not rely on.

- Sufficiency of Consideration; - Consideration need not be adequate.

- Freedom of contract demands that the parties must be free to make their own bargain.
- No court of law will concern itself with the question whether the price agreed upon is worth the goods
supplied.
- In short, the consideration furnished by one party need not be equal or proportionate to that furnished by
the other party.
- Thus, a creditor’s forbearance to sue (i.e. a promise not to sue) may be sufficient consideration for a
promise given by the debtor relation to a particular debt. Alliance Bank, Ltd. v Broom (1864) the defendant
owed plaintiff bankers 22,000 by way of overdraft.
- The plaintiffs pressed the defendant for payment, as result of which the defendant promised to give security
for the overdraft.
- The defendant failed to provide the security and on being sued pleaded that the plaintiffs had furnished no
consideration for his promise.
- Held:
 There was an implicit promise of forbearance for the defendant’s promise. But since by
definition consideration indicates value, it must be real and not illusory. Thus, where a
person is already legally bound (whether by contract or as a matter of public duty) to do a
particular thing, a promise such as subsequently made by him to do that same thing is not
 consideration which, could support any agreement at all. Thus, a policeman discharging his
ordinary duties furnishes no consideration for a promise made by X to pay him for
protection. Similarly, a person contractually bound to sail a ship home furnishes no
consideration for extra pay if all that is done by him is to discharge his contractual
obligation: -

d. Intention to Create a Legal Relationship

- A contract apparently supported by consideration will not result in a binding contract unless it was the
intention of the parties to enter into, or create legal relationship.
- It, for example, X, promises to take out Y for lunch and Y accepts ad patiently waits for X, there is no
legally binding agreement and Y cannot sue X failure to honor his promise.
- It is not always easy to determine whether there was an intention to create legal relations.
- Where the circumstances expressly or impliedly to create such intention, obviously there will be no binding
contract.
- Thus, where it is provided that a particular transaction is not to give rise to any legal relationship but that is
to be “binding in honor only” there is no legally binding agreement an none of the parties to the transaction
may bring an action on it: Jones V. Vernons Pools, Ltd. (1938).
- In Rose and Frank Co.V. J. R. Cromption Brothers, Ltd. (1924) a document signed be the plaintiffs and
defendants provided (inter lia): “This arrangement is not entered into, nor is this memorandum written,
as a formal or legal agreement, and shall not be subject to legal jurisdiction in the law court... but it is
only a define expression and record of the purpose an intention of the three parties concerned, to which
they each honorably pledge themselves with the fullest confidence- based on past business with each
other- that it will be carried through by each of the three parties with mutual loyalty and friendly co-
operation”.
- It was held that the parties intention was that the document should not be legally enforceable, and the
plaintiff’s action could not therefore be maintained Complications arise where there is nothing on the face
of the transaction to negative an intention to create legal relations.
- Generally there is a presumption that there was such intention, in the case of commercial agreements.
- This presumption is rebutted by a provision to the case of social or domestic agreements.
- Here, there is no presumption of an intention to create legal relations; such intention must be specifically
proved, otherwise the person seeking to enforce the agreement will fail in his action: Balfour V. Balfour
(1919) the plaintiff and defendant were husband and wife.
- The husband, a civil servant in Ceylon, was on leave and he had gone with his wife to England. Towards
the end of the leave the wife was in bad health and had to remain in England, while the husband returned to
Ceylon. The husband promised her 30dollars per month for maintenance during this time. Later, when the
husband defaulted, the wife sued him on his promise.
- Held:
 The husband’s promise did not give rise to legal relations and so the wife’s action could
not be maintained. Merritt V. Merritt (1970); the plaintiff and defendant were husband and
wife. Their matrimonial home was in their joint names, and was subject to a mortgage. The
husband left the matrimonial home and went to live with another woman. Later it was
agreed that the husband would pay the wife 40 dollars per month out of which she was to
pay the outstanding mortgage payments. The husband signed a document stating that “In
consideration of the fact that you will pay charges in connection with (the matrimonial
home), until such time as the mortgage repayment has been completed, when the
mortgage has been completed I will agree to transfer the property to your sole
 ownership”. The wife paid off the entire amount outstanding on the mortgage, but the
husband refused to transfer the house into her sole name.

- Held: The parties had intended to create legal relations; there was therefore a binding contract which the
husband had breached.
- Note: Domestic agreements are not restricted to those between spouses. They extend to agreements
between parent and child (see, e.g. Jones V. Padavation, (1969) and also those between persons who may
not infact be relatives. “Domestic” is used here are too simply to distinguish those agreements from those
which are of a commercial nature.

e. Contractual Capacity

- An essential ingredient of a valid contract is that the contracting parties must be competent to contract.
- Every person is competent to contract who is of the age of majority and who is of sound mind, and is not
qualified from contracting by any law.
- Only a person who has contractual capacity be a party to a contract.
- This includes artificial as well as natural persons.
- The general rule is that any person may enter into any kind of contract.
- But special rules supply to the following persons:-

 Minors
 Persons of Unsound Mind and Drunken Persons
 Married Women
 Aliens or Non Citizens
 Corporations
 Co-operative Societies
 Trade Unions

- These special rules are explained below;

Minors

- Minor’s contracts are governed by common law rules as modified by the Infants Relief Act 1874.
- Under the Contract Act (Cap. 23), contracts in Kenya are governed by the common law of England relating
to contracts as modified (inter alia) by the general statutes in force in England on 12th August 1897.
- It may therefore, be said that the “Infant Relief Act 1874” applies in Kenya.
- A contract made by minors may be binding, voidable or void. These are discussed as under:-

 Binding Contracts

- There are two types of contracts which are binding on minors.

a. Contract for the Supply of Necessaries Certain things are regarded as “necessaries”.

- These are things without which the minor could hardly live; are therefore things which are essential to his
maintenance.
- Under the Sale of Goods Act “necessaries” are defined as “goods suitable to the condition in life of a
particular infant or minor, and to his actual requirements at the time of the sale and delivery”.
- Included here are things like food, clothing, and medicine.
- But whether a particular commodity falls within the category of necessaries depends on the circumstances
of a particular case; and in particular items of luxury are excluded.
- Thus, while a suit may be an item of necessaries in the case of a minor who hails from a well to do family it
might be an item of luxury to a peasant’s son, particularly where there are cheaper alternatives within a
peasant’s means.
- Once a particular item has been placed within the category of necessaries the next question is: To what
extent can the other contracting party enforce the contract on sale against the minor? Under the above Act,
a minor is liable to pay a “reasonable price” for goods which are necessaries.
- He is not therefore necessarily liable for the actual or contract price, and anyone dealing with a minor
should bear this in mind as he is likely to lose in case the minor defaults to payment, particularly where the
goods were supplied to minor on credit.
- It is clear from the definition above that in reckoning whether or no t particular goods are “necessaries”
account must be taken of minor’s actual requirements at the time of sale and delivery.
- It must therefore be proved that the minor was not sufficiently provided with goods in question at the time
when they were sold and delivered to him; otherwise the goods are not necessaries and the contract cannot
be enforced against the minor.
- Nash v. Inman (1908) a tailor supplied an infant with 11 fancy waistcoats, but the infant failed to pay. The
infant was a university undergraduate. His father gave evidence that the infant was adequately supplied
with proper clothes according to his station in life.
- Held: The clothes were not necessaries and the infant was not liable to pay from them. The fact that a
minor has a sufficient allowance does no prevent him from contracting for necessaries on credit: Burghart
v. Hall (1839). The lender is still entitled to a reasonable price for the necessaries supplied by him.
- Where a minor gets a loan to buy necessaries, the lender may recover his loan under the doctrine of
subrogation, i.e. he does not recover in his own right as lender but instead he stands in the place of the
person who supplied the necessaries and it is only in this latter capacity that he may recover the money.
- However, he will only be able to recover the money to the extent that it has been used to buy necessaries
and only to the extent of a reasonable price for the necessaries.
- Besides goods, certain services and expenses are also considered to be necessaries. Examples includes
lodging, legal advice, and funeral expenses for the infant.

b. Beneficial Contracts of Service

- Besides contracts for the supply of necessaries, minor are bound by a contract of service whose nature is
such that, considered as a whole, it is intended for his benefit: Clements v. London and N.W. Railway Co.
(18940 X, a minor, was employed by a railway company as a porter.
- He joined the company’s insurance scheme and agreed to relinquish his statutory right of suing for
personal injury under the Employers Liability Act 1880.
- Though the Scheme fixed a lower scale of compensation, its terms were generally more favorable than
those embodied in the Act; the Scheme covered more accidents in respect of which compensation was
payable.
- Held: The agreement was generally for the benefit of X and it was therefore binding on him. De Francesco
V. Barnum (1890) X, a minor of 14 years joined the plaintiff as an apprentice in order that she might be
taught stage dancing. The apprenticeship was to an agreed sum per night, that she would not marry and that
she would not accept any other professional engagement without the plaintiff’s permission. The plaintiff
was not bound to engage X or to maintain her while unemployed; the amount payable for X’s services was
 a trifling sum and moreover, the plaintiff was at liberty to terminate the contract in the event of X being
found unfit for stage dancing.
- Held: The agreement as a whole was unreasonable and completely put X at the mercy of the plaintiff; it
was not beneficial to X and was therefore not binding on her. Thus, whether a particular contract is
beneficial to a minor and hence binding on him depends on the circumstances of the case.
- It is binding only when, considered as a whole, it appears to be advantageous or beneficial to the minor.
But where the other party to the contract has more to gain from the minor, the contract and his own
interests under the contract outweigh those of the minor, the contract will not be considered as being
beneficial to the minor and consequently the minor will be bound by it.
- Certain contracts can never be enforced against a minor, however beneficial they may be to him. This is
particularly so in the case of trading contract. A minor is never by such contracts: Cowern V. Nield (1912)
X, a minor, set himself up in business as a hay and straw dealer, Y paid for consignment of hay, which X
failed to deliver. Y sued X for the price.
- Held: Being a minor, X was not bound by the contract entered into with Y, since it was a trading;
accordingly X was not liable to repay the price to Y.
- According to the above case, beneficial contact entered into with a minor is binding on him only if it is
either a contract of service or of apprentices, or something close to this.
- Thus, in Doyle’s 114 Case given above, the contract in question was held to be very closely connected with
a contract since it was designed to develop the minor’s skill as a boxer.

c. Voidable Contracts

- Voidable contracts, as far as minors are concerned, are those contracts which a minor is entitled to
repudiate either during minority or within a reasonable time after attaining majority age.
- Apart from the minor’s option to repudiate, a voidable contract is similar to a binding one in that in either
case the contract must be beneficial to the minor.
- But in the case of voidable contracts, the subject matter is generally of a permanent nature and the
obligations created by the contract are of a continuous nature.
- The most outstanding examples are: leases agreements (by which the minor acquires an interest in land);
contracts for the purchase of shares (by which the minor in a limited company); and contracts of
partnership 9by which the minor becomes a partner in a firm).
- Like any other voidable contract, a minor’s voidable contract remains binding on him until it is duly
terminated by him. He must take timely action to avoid the contract, otherwise he will be bound by its
terms:- Davies V. Beynon- Harris (1931) X, an infant, leased a flat from the plaintiff two weeks before
attaining majority age. Three years later, his rent was in arrears and the plaintiff sued him.
- Held: X had failed to avoid the lease within a reasonable time after attaining majority age and it was now
too late to do so; consequently, he was liable to pay the arrears of rent.

d. Void Contracts

- Under section 1 of the Infants Relief Act 1874, the following contracts entered into with minors are
declared to be absolutely void:-

 Contracts for the repayment of money lent or to be lent i.e. loan contracts.
 Contracts for goods supplied or to be supplied other than necessaries;
 All accounts stated or settled accounts.
- None of these three types of contract can be enforced against a minor. Smith V. King (1892) X, a minor
was indebted to Y, who was stock broker. After X had attained majority age, Y sued him for the debt. Y
then accepted two bills of 50 dollars each in full settlement of the debt. Y later brought an action against X
based on the bills.
- The acceptance by Y of the two bills amounted to a ratification of a debt contracted by him during
minority; such ratification was void under the Infant Relief Act 1874 and X was no therefore liable on the
bills. Valentini V. Canali (1889) X, a minor leased the defendant’s house and agreed to pay 102 dollars for
the furniture which was in the house by way of purchase.
- He effected a down- payment of 68 dollars on the furniture. He then occupied the house and used the
furniture for some months, after which he repudiated the lease.
- He then sought to recover the 68 dollars from the defendant.
- Held: X was not liable to pay the balance on the 102 dollars; but since he had used the furniture for some
months there was no total failure of consideration and accordingly he could not recover the 68 dollars. R.
Leslie, Ltd. V. Sheill (1914) X, a minor, fraudulently told the plaintiff that he (X) was of majority age,
thereby inducing the plaintiff to lead him @ 400. X for fraudulent misrepresentation or, alternatively, for
money.
- Held: The contract was absolutely void under the Infants Relief Act 1874; X was not liable to repay the
money as the alternative claim against him was an indirect way of enforcing the void contract.
- Note: Since a loan contract involving a minor is void, a guarantee of such contract is equally void: Coutts
& Co. V. Browne- Lecky (1947).

Persons of Unsound Mind and Drunken

- Persons A contract made with a person of unsound mind (PUM) is binding on him only if it was during a
lucid interval, i.e. an interval during which he is sane.
- For this purpose, it is immaterial that the other party may have been aware of the PUM’s mental capacity.
- Apart from this, a contract that is entered into a PUM with a person who knows him to be mentally
incapacitated is voidable at the instance of PUM.
- However, where the PUM has obtained necessaries under the contract, he is, like a minor, liable to pay a
reasonable price for the Sale of Goods Act.
- As for a drunken person, his contractual capacity is generally the same as that of a PUM.
- If the drunkenness is, to the knowledge of the other party, such as to render him incapable of appreciating
his acts, a contract entered into in these circumstances is voidable at the instance of the drunken person
upon sobering up.
- But like a minor and PUM, he is liable to pay reasonable price for necessaries: Sale of Goods Act.

Married Women

- At common law a married woman could not enter into a contract. But under the Law Reform (Married
Women and Tortfeasors) Act, 1935, the married women can sue and be sued in contract in the same way as
single women.
- Aliens or Non-Citizens Alien, i.e. a person who is not citizen of Kenya, can sue and be sued.
- Any enemy alien, i.e. a person resident in a country which is at war with Kenya, cannot sue, but if sued can
defend an action.

Corporations

- In the case of corporation, its contractual capacity is limited by the provisions of is Memorandum of
Association.
- It can only enter into those contracts authorized by the Memorandum; any other contract is ultra vires and
cannot be entered into by the corporation.
- In case of a statutory corporation, it can only do those things which are expressly or impliedly authorized
by statute.
- Any contracts entered into those which are not authorized by statute are ultra vires and therefore, void.

Co-operative Societies

- A co-operative society registered under the Co-operative Societies Act (Cap 490) can enter into Contracts,
and be sued in accordance with the provisions of the Act.

Trade Unions

- Section 25 (1) of the Trade Unions Act (Cap. 233) provides: “Every trade union shall be liable on any
contract entered into by it or by an agent acting on its behalf: provided that a trade union shall not be
liable on any contract which is void or unenforceable at law”.
- A registered trade union may sue and be sued and be prosecuted under its registered name.

Terms of Contract

- In the course of negotiations, a number of statements may be made by each of parties.

- Some of these eventually form part of the contract, while others are left out. Statements which form part
of the contract are known as terms of the contract.
- Those which are made in the course of negotiations but are ultimately left out of the contract are called
representations.
- A representation is a statement that is not within the contract. If it turns out to be a false representation,
either fraudulently or innocently made, it is called a misrepresentation.
- If the statement is within the contract then there is a further problem of deciding whether it is a classified as
express and implied terms.
- The terms of a contract are as follows; - The rights and obligations of the parties to a contract depend on the
terms of the contract, not on mere presentations.
- It is therefore always important to determine whether a particular statement is a term or a presentation:
Oscar Chess, Ltd. V. Williams (1957) the defendant offered the plaintiffs a second-hand Morris as part of
the consideration for a hirepurchase contract.
- The registration book of the Morris stated that the car was a 1948 model, and 118 this was confirmed by the
defendant in good faith. But it turned out later that the car was in fact a 1939 model, which should have
been valued at lower figure.
- The plaintiffs who were car dealers sued the defendant for the difference in value. The court had to
determine whether his statement as to the age of the car was a term of the contract or a mere representation.
- Held: The statement as to the age of the car was not a term of the contract but a mere representation.
- The plaintiffs were not therefore entitled to recover the difference in value.
- Dick Bentley Productions, Ltd. V. Harold Smith Motors Ltd. (1965) The defendants sold a Bentley car to
the plaintiffs, stating that the car had done only 20,000 miles from the time it was fitted with a replacement
engine and gearbox. This statement turned out to be false, the car proved unsatisfactory and the plaintiffs
sued. The court had to determine whether the defendant’s statement as to mileage was to term of the
contract or a mere representation.
- Held: The statement as to mileage was a term of the contract; and the plaintiffs were entitles to damages
for breach of contract.
- Looking at the above decisions together, it is clear that it is not always easy to determine whether a
particular statement is a term or a mere representation.
- Generally a statement made by a person possessed of special knowledge or skill is treated seriously, to the
extent of being considered a term of the contract; while a statement made by a person not position and will
usually be regard as a mere representation.
- Thus, in Oscar Chess, Ltd. V. Williams the purchasers of the car (the plaintiffs) were themselves car
dealers and as such were in a position to ascertain the age of the car independently of any statement made
by the defendant.
- As car dealers they were possessed of some special knowledge or skill; the defendant’s statement would
not therefore mean much to them and it was rightly held to be mere representation.
- On the other hand, in Dick Bentley Case, the defendants had been in possession of the car and were on a
better position, compared to the plaintiffs, to tell the mileage which had been done by the car; their
statement therefore had to be a term of the contract.
- Besides the state of knowledge or skill of the respective parties, the question whether a particular statement
is a term or a mere representation may be determined in another way.
- Where the parties make an oral agreement, which is subsequently reduced to writing, only those statements
which are incorporated in the written agreement will be regarded as terms of the contract, while the oral
statements left out of he noted, however, that much depends on the peculiar circumstances each case and no
hard and fast rule can be laid down.
- Express and Implied Terms - Parties to a contract are free to make their own bargain under the banner of
“freedom of contract” They may therefore agree on any terms, as long as these are covered by law. But
standard form contracts are in exception.
- In this type of contract, one of the parties virtually dictates all the terms of the contract, which are contained
in a special document presented to the other party for signature e.g. insurance contracts.
- Express terms are those which are specifically (or expressly) agreed upon by the parties, whether orally, in
writing, or partly orally and partly in writing.
- In the absence of specific (or express) agreement on my matter in a particular contract, certain terms may
be treated by law as governing the matter in question. These are known as implied terms.
- Terms may be implied in a contract by statute (e.g. the Sale of Goods Act implied certain terms in every
contract of sales of goods); by custom (e.g. trade customs); or by court (e.g. in contracts of employment in
master/servant relationship).
- Sometimes, an implied term is excluded in the express terms of the contract.
- Conditions and Warranties Not all terms of a contract carry the same weight. Some are important than the
others.
- Those which are regarded as major terms of the contract are known as conditions, while those which are
minor or of less consequence are called warranties.
- The distinction between conditions and warranties is best illustrated by the effect which a breach of each
one of them has on the contract.
- In a contract of sale of goods, for example, a breach of condition by one party entitles the other (innocent)
party to treat himself as discharged from his obligations under the contract, while a breach of warranty by
one party only entitles the other (injured) party to damages, but not to as right to regard himself discharge
from his obligations under the contract.
- Both conditions and warranties may be express or implied. But conditions are further subdivided into
condition precedent and condition subsequent.
- A condition precedent is one which must be satisfied before a contract can become effective or
operational: until such condition is satisfied the existence or operation of the contract is suspended and
none of the parties has any enforceable right in the meantime: Pym V. Campbell (1856) The plaintiff and
defendant entered into a written agreement under which the defendant agreed to buy a share in the
plaintiff’s invention. But it was understood that the agreement was subject to an approval of the invention
 by X, an engineer. X later disapproved the invention and the defendant refused to proceed with the
agreement. The plaintiff sued.
- Held: In the absence of X’s approval there was no effective agreement and the plaintiff’s action could not
therefore be maintained. Again, if A enters into a contract with B is to construct a number of residential
houses for A, and A is required to obtain permission from the City Council before the construction work
can commence, out the obligation imposed on B by the contract.
- A condition subsequent, on the other hand, is a condition whose occurrence may affect the rights of the
parties under a contract which is already in operation. For instance, where there is a provision that a
contract is to remain valid until a stated event occurs, the occurrence of the event is a condition subsequent
which terminates the contract.
- Is an illiterate person protected by law? The answer is yes, and the relevant protection is to be found in the
illiterates Protection Act. The Act defines an illiterate as “a person who is unable to read and understand
the script or language in which the document is written or printed as the case may be”.
- The document must be read over and explained to the illiterate in a language he understands; after this the
illiterate, if he is satisfied, appends his mark to it in the presence of a witness whose true and full name and
address must be stated; and after the illiterate has appended his mark his name must be written on the
document by the witness.
- Similarly, any person who writes such document must give his true and full name and address. In either
case, there is a presumption that the instructions of the illiterates have been complied with and that the
document was read over and explained to him.
- The burden is on the illiterate to rebut this presumption. He should, for instance, insist on the document
being read over to him, otherwise he will be bound by it.

8. Vitiating Elements (factors affecting the validity of a contract)

- In which there is an intention to enter into legal effect where it is affected by a vitiating factor.
- A vitiating factor (or element) is one which tends to affect the validity of the contract.
- The vitiating elements consist of: -
a. Mistake
b. Misrepresentation
c. Duress (or Coercion)
d. Undue Influence
e. Illegality

a. Mistake

- Mistake may be defined as an erroneous belief concerning something.

- It may be of two kinds: -

 Mistake of law
 Mistake of fact

- Mistake of law Mistake of law may be further classified as; -

 Mistake of general law of the country,

 Mistake of foreign law
 Mistake of private rights of a party relating to property and goods.

- A mistake of law can never be pleaded as a defence.

- But mistake of foreign law and mistake of private rights may be treated as mistake of fact.
- Mistake of fact is also known as an operative mistake.
- Under common law an operative mistake renders a contract void ab initio, i.e. where an operative mistake
is proved the legal position is that the parties are in the same position as if the contract was never entered
into; the contract was void, right from the beginning
- The traditional approach is to divide mistakes into three distinct categories: common mistake, mutual, and
unilateral mistake.
- These are explained below:-

 Common Mistake

- A common mistake is made where both parties assume a particular state of affairs, whereas the reality is the
other way round. Both parties therefore make exactly the same mistake.
- A contract entered into as a result of common mistake is a nullity (or null and void) at common law:
Conturier V. Hastie (1853) A contract was entered into for the sale of goods which at the time of the
contract were supposed to be in transit aboard a certain ship. None of the parties knew that the goods had
deteriorated and that by the time of the contract they had in fact been disposed of already by the master of
the ship.
- Held: Both parties had contemplated that the goods were in existence at the time of the contract; ad since
the goods were not actually in existence at that time, the contract was void and the buyer was not liable to
pay the price.

 Mutual Mistake

- Mutual to a particular matter, one party may assume a totally different thing, so that the other party
assumes a totally different thing, so that they both misunderstand one another.
- They are then said to have made a mutual mistake.
- The mistake is different for each party, exactly the same mistake.
- A contract made under mutual mistake may not be a nullity, depending on the circumstance of the case
(compare common mistake where the contract is automatically nullity):
- In a contract of sale of goods by sample, the plaintiff bought from the defendants 100 chests of tea, which
were then lying in a specified place.
- The plaintiff thought he was buying the tea contained in the 100 chests, but the defendants thought they
were selling to the plaintiff only tea of the same quality as the samples. The tea in the chests turned out to
be of a higher quality than the samples submitted to the defendants and the defendant refused to deliver it to
the plaintiff.
- Held: There was a valid contract between the plaintiff and defendant, and the defendant was liable to
deliver the 100 chests.
- Note: The above case is sometimes cited as authority for saying that mistake as to quality is not an
operative mistake.

 Unilateral Mistake

- If one of the parties to a contract, and the other parties aware of this fact, there is said to e a unilateral
mistake (compare mutual mistake where one party’s mistake is not known to the party).
- Instances of unilateral mistake is not common in fraud cases where one party misrepresents his identity to
the other, thereby inducing the other party into contracting with him in the false belief that he is contracting
the person whose identity has been given.
 b. Misrepresentation

- At representation means a statement of fact made by one party to the other, either before or at the time of
contract, relating to some matter essential to the formation of the contract, with an intention to induce the
other party to enter into contract, with an intention to induce the other party to enter into the contract.
- It may be expressed by spoken or written or implied from the acts or conducts of the parties) e.g. non-
disclosure of a fact).
- A representation when wrongly made, either innocently or intentionally, is termed as a misrepresentation.
- To put in differently, misrepresentation may be either innocent or intentional or deliberate with intent to
deceive the other party.
- In law, for the former kind, the term Misrepresentation and for the latter the term fraud is used. Types of
Misrepresentation
- There are three types of misrepresentation. These are:-

 Fraudulent Misrepresentation

- A fraudulent misrepresentation is a statement made without honest belief in its truth or recklessly without
caring whether it is true or not.
- This type of misrepresentation therefore requires proof of fraud or dishonest; and once proved it is
actionable at common law.

 Negligent Misrepresentation

- An innocent is one made honestly or without fault on the part of the representor.
- This type if misrepresentation is not actionable at common law and the representee has no remedy at all.

Remedies for Misrepresentation

- Misrepresentation renders a contract voidable at the instance of the representee (the innocent party).
- Consequently, the remedy of rescission is available to him.
- Besides, he is also entitled to damages for loss that may have been suffered by him as result of the
misrepresentation.

c. Duress

- Duress refers to actual violence or threats violence calculated to produce fear in the mind of the person
threatened.
- The requirement of agreement in the establishment of a contractual relationship presupposes that each of
the parties is free contracting agent.
- But the freedom of the party subjected to duress (or coercion) is obviously restricted.
- Duress as such, is a vitiating factor which is actionable at common law (and is sometimes referred to as
legal duress).
- For a threat to amount to duress, it must be a threat to the person, not to goods.
- It must also relate to an unlawful thing; a threat to do a lawful thing is immaterial, subject only to the
requirements of public policy.
- Also, the threat must have induced the threatened party to enter into the contract.
- The dominant view is that contract entered into under duress (or coercion) is voidable at the instance of the
party coerced.
 d. Undue Influence

- A contract is said to be induced by undue influence where; - the relations subsisting between the parties are
such that one of the parties is in a position dominate the will of the other. The party uses the position to
obtain an unfair advantage over the other.
- Undue influence is another factor which tends to restrict the freedom of a party in entering into a particular
contract.
- It is based on the equitable principle that no person may take an unfair advantage of the inequalities
between him and another party so as to force an agreement on the other party.
- A person who seeks to rely on undue influence as a defence must prove that the other party has in fact
influence over him and that he would not otherwise have entered into the contract.
- But where a confidential (or fiduciary) relationship exists between the parties, undue influence is presumed,
and the burden is shifted on to the other party to prove that there has been no undue influence on his part.
- The following are relations in which undue influence is presumed:-

 Parent and Child

 Doctor and Patient
 Trustee and Beneficiary
 Advocate and Client
 Guardian and Ward
 Religious Adviser and Disciple

- It should be noted that Husband/Wife relationships do not raise the presumption of undue influence; undue
influence must in this case be specifically proved by the party seeking to rely on it.
- Where undue influence is sufficiently proved to have existed at the time of the contract, the contract is
voidable at the instance of the party unduly influenced and may on this ground be set aside.
- Williams V. Bayley (1866) Like any other voidable contract, a contract entered into under undue influence
cannot be set aside where its subject-matter has come into hands of a bona fide purchaser, where it has been
subsequently affirmed, if there has been undue delay on the party entitled to avoid the contract.

e. Illegality

- An illegality contract is one which is prohibited by law e.g. making a contract to break into a house to steel
goods is an illegal contract.
- Besides statute, there are certain contracts which are prohibited by, and therefore illegal at common law.
- These are contracts which offend against public policy, i.e. those which are prejudicial to public morality
and public well-being.
- They are as follows:-

 Contracts to commit a crime, tort or fraud;

 Contracts that are prejudicial to the administration of justice;
 Contracts liable to corrupt public life;
 Contracts that are prejudicial to public safety;
 Contracts to defraud the revenue;
 Contracts that are sexually immoral;
  Contracts which are prejudicial to the country’s foreign relations.

5. Discharge Of Contract

- A contract is said to be discharged (or terminated) when the parties to it are freed from their mutual
obligations.
- In other words, when the rights and obligations arising out of a contract are distinguished, the contract is
said to be discharged or terminated.
- A contract may discharge in any of the following ways:-

 Discharge by performance
 Discharge by Agreement
 Discharge by Frustration
 Discharge by Breach
 Discharge by Operation of Law

a. Discharge by Performance

- When a contract is duly performed by both the parties, the contract comes to happy ending and nothing
more remains.
- The contract, such a case, is discharged or terminated by due performance. But if one party performs his
promise, he alone is discharged.
- Such a party gets a right of action against the other party who is guilty of breach. Performance of a contract
is the principal and most usual mode of discharge of a contract.
- Performance may be: -

 Actual performance;
 Attempted performance or Tender.

- Actual performance; - When each party to a contract fulfils his obligation arising under the contract
within the time and in the manner prescribed an amounts to actual performance of the contract and the
contract comes to an end or stands discharged
- Attempted performance or tender; - When the promisor offers to perform his obligation under the contract,
but is unable to do so because the promise does not accept the performance, it is called attempted
performance or tender.
- Thus “tender” is not actual performance but is only at “offer to perform” the obligation under the contract.
- A valid tender of performance is equivalent to performance.
- For performance to discharge a contract, the general rule is that it must be precise and exact.
- Circumstances do exist, however, n which a partial performance by one party may not entitle the other
party to consider himself as discharged, e.g. in cases of substantial performance or of divisible contracts
like those in which delivery of goods is to be done in installments: in these cases the performing party is
entitled to payment for what has been done by him under the contract.
- The effect of refusal to accept a properly made „offer of performance‟ is that the contract is deemed to
have been performed by the promisor i.e. tenderer and the promise can be sued for breach contract. A valid
tender, thus, discharges contract.
- However, tender of money does not discharge the contract. The money will have to be paid even after
refusal of tender.
 b. Discharge by Agreement

- Where a contract is still executory, i.e. where each of the parties is yet to perform his contractual
obligation, the parties may mutually agree to release each other from their contractual obligation: each
party’s promise to release the other is consideration for the other party’s promise to release him.
- Where one party has fully performed his part of the contract, he may agree to release the other party from
his contractual obligation.
- In this case, however, the discharge is effective only if made under seal or where the party being discharged
has furnished consideration for it; otherwise the party giving the discharge will not be bound and the other
party remains liable.
- A unilateral discharge, supported by valuable consideration, is known as an Accord and Satisfaction.
- The accord is the agreement by which the obligation is discharged.
- The satisfaction is the consideration which makes the agreement operative.

c. Discharge by Frustration

- A contract is said to be frustrated if an event occurs which brings its further fulfillment to an abrupt end;
and upon the occurrence of the frustrating event the contract is immediately terminated and the parties
discharged.
- But the doctrine of frustration only relates to the future.
- This means that the parties are discharged from their future obligation under the contract but remain liable
for whatever rights that may have accrued before the frustration.
- Thus, goods supplied or services rendered before the frustration must be paid for, although the parties are
both excused from further performance of the contract.
- Parties to a contract are under a duty to fulfill their respective obligations created by the contract.
- The fact that an event or events may subsequently occur, introducing hardships or difficulties in the
performance of the contract is not in itself sufficient to discharge the contract: It is difficult to determine the
frustrating events.
- Some examples of frustrating events are given below:-
 Destruction of subject Matter “In contracts in which the performance depends on the continued
existence of a given person or thing, a condition is implied that the impossibility of performance
arising from the perishing of the person or thing excuse the performance”. This statement of law
was made by Blackburn J. in the case given below:- A, let a music-hall to B in order that B might
use it for holding concerts on specified days. Before the concerts could be held the music- hall was
accidentally destroyed by fire. B sued A for breach of contract.
 Held: The destruction of the music-hall had frustrated the contract and B‟s action could not be
maintained.
 Death or Incapacity Just as the destruction of the subject-matter of the contract terminates it, the
death or serious indisposition of a party whose personal services were contemplated by the
contract will similarly terminate it. Thus, if A, a doctor, contracts to care for all my medical needs,
his death is a frustrating event which automatically terminates the contract. Again, if A contracts
to stage a series of shows during the months of June-September but is in May sentenced to
imprisonment for one year, or becomes insane permanently or for a substantial part of the period
in question, the contract will similarly be discharged by frustration- the frustrating event being
constituted by the imprisonment or insanity.
 Frustration of Common Venture - Where both parties contemplate a particular object as forming
the basis of their contract, such object constitutes their common venture. The law is that if the
common venture subsequently becomes incapable of fulfillment the contract is frustrated.
  The plaintiff agreed to let a room to the defendant for the day when Edward VII was to be
crowned. Though not spelt out in the agreement itself, both parties understood that the purpose of
the letting was to enable the defendant view the coronation process. The King subsequently
became ill and the coronation was cancelled.

- Held: The cancellation of the coronation discharged both parties from their contractual obligation, because
the process was the foundation of the contract and its cancellation meant that the substantial purpose of the
contract could no longer be achieved.

d. Discharge by Breach

- Discharge by Breach of contract by a party thereto is also a method of discharge of a contract, because
“Breach” also brings to an end the obligations created by a contract on the part of each of the parties.
- Of course the aggrieved party i.e. the party not at fault can sue for damages for breach of contract as per
law; but the contract as such stands terminated.
- A breach of contract may take place when a party: -

 Repudiates his liability before performance is due.

 Disables himself from performing his promise.
 Fails to perform his obligations.

e. Discharge by Operation Of Law

- A contract may be discharged by operation of law in certain cases. Some important instances are as under:-
 Lapse of Time - If a contract is made for a specific period then after the expiry of that period the
contract is discharged e.g. partnership deed, employment contract e.t.c.
 Death - The death of either party to a contract discharges the contract where personal services
are involved.
 Substitution - If a contract is substituted with another contract then the first contract is
discharged.
 Bankruptcy - When a person becomes bankrupt, all his rights and obligations pass to his trustee
in bankruptcy. But a trustee is not liable on contracts of personal services to be rendered by the
bankrupt.

Remedies for Breach of Contract

- Whenever there is a breach of contract, the injured party becomes entitled for some remedies.
- These remedies are:-

 Damages
 Quantum Meruit
 Specific Performance
 Injunction
 Rescission

a. Damages

- Damages are a monetary compensation allowed to the injured party of the loss or injury suffered by him as
a result of the breach of contract.
- The fundamental principle underlying damages is not punishment but compensation.
- By awarding damages the court aims to put the injured party into the position in which he would have been,
had there been performance and not breach, and not to punish the defaulter party.
- As a general rule, “Compensation must be commensurate with the injury or loss sustained, arising
naturally from the breach”. “If actual loss is not proved, no damages will be awarded”.
- The damages recoverable for breach of contract are governed by the rule in which is as follows:- “Where
two parties have made a contract which one of them has broken, the damages which the other party ought
to receive in respect of such breach of contract should be, either such as may fairly and reasonably be
considered arising naturally, i.e. according to the usual course of things, from such breach of contract itself,
or such as may reasonably be supposed to have been in the contemplation of both parties at the time they
made the contract, as the possible result of the reach of it”. This is the general rule.
- The plaintiff can only recover for loss arising naturally from the defendant’s breach or for such loss as was
in the contemplation of both parties at the time when the contract was made.
- In this way, it is sought to do justice to both parties.
- In fact the above case goes on to explain that where a contract is made under special circumstances it is the
duty of the party seeking to rely on those special circumstances to communicate them to the other party;
and in the absence of such communication any loss arising from the special circumstances is not
recoverable: A miller sent a broken crankshaft by a carrier to deliver to an engineer for copying and to
make a new one. The miller informed the carrier that the matter was urgent and that there should be no
delay. The carrier accepted the consignment on those terms. The miller did not inform the carrier that the
mill would be idle and unable to work.
- The carrier had no reason to believe that the delayed delivery of the crankshaft was an essential mechanism
of the mill. The carrier delayed delivery of the crankshaft to the engineer; and as a consequence, the mill
was idle for longer than it need have been.
- Held: that the carrier was not liable for the loss of profits during the period of the delay.
- The defendant’s ship, the Heron II, was chartered by the plaintiff to carry sugar from Constanza to Basrah,
and the ship was to take an agreed route. But the defendant deviated and took a longer route and as a result
delivery of the sugar was delayed by 9 days. In the meantime the market price of sugar had fallen and the
plaintiff lost a profit of 4,000 dollars.
- Held: The loss of profits was recoverable by the plaintiff, because fluctuations in market prices are in the
normal course of things and the loss suffered by the plaintiff must have been in the contemplation of both
parties as a probable result of a breach of the contract.

b. Quantum Meruit
- The third remedy for a breach of contract available to an injured party against the guilty party is to file a
suit upon quantum meruit.
- The phrase quantum meruit literally means “as much as is earned” or “in proportion to the work done”.
This remedy may be availed of either without claiming damages (i.e. claiming reasonable compensation
only for the work done) or in addition to claiming damages for breach (i.e. claiming reasonable
compensation for part performance and damages for the remaining unperformed part).
- The aggrieved party may file a suit upon quantum meruit and may claim payment in proportion to work
done or goods supplied.
- The court must then determine a reasonable sum to be paid for those goods or services; and the plaintiffs is
said to have brought his suit on a quantum meruit.
- In the case of contracts for the sale of goods, this remedy has been codified by the Sale of Goods Act. It
provides; “where the price is not determined, the buyer must pay a reasonable price.
- What is a reasonable price is a question of fact dependent on the circumstances of each particular case”.
The plaintiff may also sue on a quantum meruit where the original contract has been replaced by a new one
and work has been done by him under the new one.
- As Lord Atkin has said: “If I order from a wine merchant twelve bottles of whisky and two of brandy, and
i accept them i must pay a reasonable price for the brandy” A claim under quantum meruit sum does not
apply, however, where the contract requires complete performance as a condition of payment e.g. a contract
to do one piece of work in its entirety in consideration for lump-sum payment. S agreed to build a house for
a certain sum on H’s land. When the house was half finished S ran out of money and could not complete. H
refused payment, and S brought an action on a quantum meruit for the value of materials used and the labor
he had expended.
- Held: that the claim must fail. The contract was to do certain work for a lump sum which was not payable
until completion. H had no choice but to accept the work.

c. Specific performance

- Specific Performance - This is an equitable remedy. It means the actual carrying out of the contract as
agreed.
- Under certain circumstances an aggrieved party may file a suit for specific performance, i.e. for a decree by
the court directing the defendant to actually perform the promise that he has made.
- A decree for specific performance is not granted for contracts of all types.
- It is only where it is just and equitable so to do i.e. where the legal remedy is inadequate or defective, that
the courts issue a decree for specific performance.
- Specific performance is not granted as a rule, in the following cases:-
 Where monetary compensation is an adequate relief. Thus the courts refuse specific
performance of a contract to lend or to borrow money or where the contract is for the sale of
goods easily procurable elsewhere.
 Where the court cannot supervise the actual execution of the contract, e.g. a building
construction contract. Moreover, in most cases damages afford an adequate remedy. 135
 Where the contract is for personal services, e.g. a contract to marry or to paint a picture. In such
contracts “injunction” (i.e. an order which forbids the defendant to perform a like personal
service for other persons) is granted in place of specific performance.
 Where one of the parties to the agreement does not possess competency to contract and hence
cannot be sued for breach of contract. Thus a minor cannot succeed in an action for specific
performance.

d. Injunction

- “Injunction” is an order of a court restraining a person from doing a particular act.

- It is a mode of securing the specific performance of the negative terms of the contract.
- To put it differently, where a party is in breach of negative term of the contract (i.e. where he is doing
something which he promised not to do), the court may, by issuing an injunction, restrains him from doing,
what he promised not to do.
- Thus “injunction” is a preventive relief.
- It is particularly appropriate in cases of “anticipatory breach of contract” where damages would not be an
adequate relief.
- Illustration: A agreed to sing at B’s theatre for three months from 1st April and to sing for no one else
during that period.
- Subsequently, she contracted to sing at C’s theatre and refused to sing at B’s theatre. On a suit by B, the
court refused to order specific performance of her positive engagement to sing at the plaintiff’s theatre, but
 granted an injunction restraining A from singing elsewhere and awarded damages to B to compensate him
for the loss caused by A’s refusal.

e. Rescission

- When there is a breach of contract by one party, the other party may rescind the contract and need not
perform his part of obligations under the contract and may sit quietly at home if he decides not to take any
legal action against the guilty party.
- But in case the aggrieved party intends to sue the guilty party for damages for breach of contract, he has to
file a suit for decision of the contract.
- When the court grants rescission, the aggrieved party is freed from all his obligations under the contract;
and becomes entitled to compensation for any damage which he has sustained through the non-fulfillment
of the contract.
- Illustration: A contracts to supply 100 kg of tea leaves for sh. 1,500 to B on 15th April. If A does not
supply the tea leaves on the appointed day, B need not pay the price. B may treat the contract as rescinded
and may sit quietly at home. B may also file a “suit for rescission” and claim damages.
- Thus, applying to the court for “rescission of the contract” is necessary for claiming damages for breach or
for availing any other remedy. In practice a “suit for rescission” is accompanied by a “suit for damages”.
 TOPIC 5: MORTGAGE AND CHARGE
Specific objectives

- At the end of this topic the trainee should be able to;-

a. Explain the terms mortgage and charge
b. State the use of land as security
c. Outline the types of mortgage
d. Outline types of charge

1. Mortgage and charge

- Mortgage is the transfer of an interest in specific immovable property for the purpose of securing the
payment of money advanced or to be advanced by way of loan, an existing or future debt or the
performance of an engagement which may give rise to pecuniary liability.
- Mortgages can be classified as: -

 Legal mortgages
 Equitable mortgages

- Charge operates as a security for the mortgage.

- Equitable charge is concluded by executing the appropriate form of memorandum of document title,
coupled with the actual deposit of the document of title with the lender by the borrower, just as is the case
with an equitable mortgage.

Types of Charges

- There are currently only two types of charges that are now capable of being created under the new land
regime.
- These are:

a. Informal charges
- The New Laws now recognize a form of charge known as an informal charge that can be created quite
simply.
- The charge can take 2 forms: a written and witnessed undertaking, the clear intention of which is to charge
the chargor’s land, for example, a letter of offer requiring a charge to be created which is consented to by
the borrower may now be construed to be an informal charge; and a chargor depositing documents of title
to the land, for example, a certificate of title or a certificate of lease.
- It is possible to register an informal charge so banks are likely, in the interest of time, to take this type of
charge as they await the formalities of preparation of a formal charge.
- However it is not likely to be a popular security as a chargee holding an informal charge may only take
possession of or sell the land on obtaining a court order to that effect.

b. Formal charges

- Formal charges only take effect on registration and a chargee cannot exercise any of its remedies under the
charge unless it is so registered.

Transfer of charges

- The Act recognizes transfers of charges at the request of the chargor in writing at any time other than when
a chargee has taken possession.
- A similar request may be made by the following persons, subject to the consent of the chargor:

 any person who has an interest in the land that has been charged;
 any surety for payment of the amount secured by the charge;
 Any creditor of the chargor who has obtained a decree for sale of the charged land (it is not
clear though why a creditor would need the chargor’s consent if he has a decree).

- The chargee on receiving written request and on payment of the amount secured by the person(s) making
the request and the performance of all obligations secured by the charge shall transfer the charge to the
person named in the written request.
- There is a section under the Finance Act amending the Stamp Duty Act to the effect that stamp duty will
not be charged when a person transfers a charge from one bank to another. This section came into effect on
2nd May, 2012.

2. Security

- The term ‘security’ refers to any property or item deposited or pledged as a guarantee of the fulfillment of
an undertaking or the repayment of a loan, to be forfeited in case of default.
- Such property may be moveable or immovable e.g; land, vehicles etc.
- Land when used as security, the rightful ownership of the land must be ascertained before any action is
taken.

3. Types of mortgage

a. The legal mortgage/English mortgage

- The borrower binds himself to repay the mortgage money on a certain date & transfer the mortgaged
property absolutely to the lender, but subject to a provision that he will retransfer it to the borrower upon
repayment of the mortgage money.

b. Types of legal mortgages

 Simple mortgage
 Usufructuary mortgage
 Mortgage by conditional sale
 English mortgage

- Simple mortgage, the borrower binds himself to repay the loan with a provision that the lender can cause
the security to be sold on default.
- Mortgage by conditional sale is the kind of arrangement where the borrower ostensibly sells the property
to the lender subject to the following conditions; -
 That on default of payment the sale shall become absolute
 That on payment of the mortgage debt, the sale becomes void
 That on payment of the debt, the property will be retransferred to the borrower.
- Usufructuary mortgage, the lender takes possession of the mortgaged property and repays himself; either
wholly or partially, from the rents, rates or proceeds from the land.

c. Redemption

- Mortgage is redeemed when the loan is fully paid, or there is properly laid down condition on how it will
be cleared which should then be adhered to.

d. Equitable mortgages

- Equitable mortgages are mortgages by deposit of documents of title, duly protected by a memorandum of
the transactions i.e. Not only must there be a document title, but also a complete memorandum of the
dealing which must be registered against the title.
- Equitable mortgages and registration requirements. The property should be duly registered
- Absence of equitable mortgage under R. L. A.
 TOPIC 6: ARBITRATION
Specific objectives
- At the end of this topic the trainee should be able to; -

a. Define arbitration

- Arbitration means a mechanism of settling civil disputes outside the general courts based upon an
arbitration agreement entered into in writing by the disputing Parties;
- There are four basic conditions for the validity (validity) of the agreement on arbitration, and they are:
Arbitration of the dispute;
The ability of the parties to enter into an arbitration agreement;
The form of the arbitration agreement
The content of the arbitration agreement (substantive requirements for the validity of the arbitration
agreement)

b. Clause 36

c. Merits and demerits

- Arbitration has the following merits: -

 Parties have the freedom to choose the arbitrator
 The flexibility of the process
 Is mostly economically friendly
 Expedition rate is high
 There is privacy
 Finality i.e. Likely to be concluded well
 It is convenient to both parties
- Arbitration has the following demerits
 Cost of the arbitrator and of court facilities may at times be high
 Unavailability of required legal aid
  Joinder difficulties
 Sometimes there may be incompetent arbitrators

d. Differences between valuation and arbitration

- Valuation refers to the process of assessing/evaluation of the executed work in order to determine the
possible payments to be made or costs incurred;
- On the other hand, arbitration is the process of assessing or evaluating the possible causes of a dispute
existing among various parties in order to reach an agreement or settle it outside court proceedings.

e. Terms ; -

i. Arbitrator(s)
- Arbitrators are neutral and independent decision makers who are not employees of the administrator.
- Except where the parties to a case reach their own settlement, the Arbitrator will make the final, binding
decision on the dispute and render it in writing, called the Award.
- The Arbitrator makes all the procedural decisions on a case not made by the administrator or not decided
jointly by the parties.
- The Arbitrator may grant any remedy, relief, or outcome that the parties could have received in court,
including awards of attorney’s fees and costs, in accordance with the law(s) that applies to the case.
- Once appointed to a case, an Arbitrator may not be removed by one party without the other party’s consent
or unless the administrator determines an Arbitrator should be removed and replaced by another Arbitrator
chosen by the administrator in a manner described in these Rules.

ii. Umpire
- A person appointed or having authority to decide finally a controversy or question between parties i.e. an
impartial third party chosen to arbitrate disputes arising under the terms of a labor agreement.
iii. Award

- Is the final, binding decision on the dispute usually rendered in writing, by an arbitrator about a dispute.

iv. Submission
- The act of giving a document/proposal or making a statement to somebody in authority so that it can be
studied of considered.

v. Reference
- It is a contractual instrument signed by the parties and the arbitrator after the arbitral tribunal is constituted.
- It major defines the dispute in a clear manner and to evidence the agreement of the parties in regard to
procedural matters.

vi. Porties
-

f. Procedure of arbitration
i. Reference
ii. Submission
iii. First meeting
iv. Hearing
v. Witnesses
vi. Points of law
vii. Award
viii. Impeaching the award
ix. Setting aside the award