Commercial Law- Deals with Law and ethics, Lecture notes of Commercial Law

Download Commercial Law- Deals with Law and ethics and more Lecture notes Commercial Law in PDF only on Docsity! www.someakenya.com Contact: 0707 737 890 Page 1 INTRODUCTION TO COMMERCIAL LAW ATD LEVEL I DCM LEVEL I STUDY TEXT www.someakenya.com Contact: 0707 737 890 Page 2 CONTENT 1. Introduction to Law Nature, purpose and classification of law - Meaning, nature and purpose of law - Classification of law - Law and morality Sources of law - The Constitution - Legislation - Substance of common law and doctrines of equity - African customary law - Islamic law - Judicial precedent - General rules of international law and ratified treaties Administrative law - Meaning - Doctrine of separation of powers - Natural justice - Judicial control of the Executive The court system - Structure, composition and jurisdiction of courts - Magistrate courts - Courts martial - Kadhis courts - Environment and Land Court - Industrial Court - Court of Appeal - Supreme Court Law of persons - Types of persons: natural person, artificial person - Nationality, citizenship and domicile - Unincorporated associations - Corporations - Co-operative societies 2. Law of tort - Nature of tort - Vicarious liability - Strict Liability - Negligence - Nuisance - Trespass - Defamation - Occupiers liability www.someakenya.com Contact: 0707 737 890 Page 5 CONTENT PAGE Topic 1: Introduction to Law Nature, purpose and classification of law…………………………………...6 Sources of law………………………………………………………………17 Administrative law……………………………………………………….…37 The court system……………………………………………………….……55 Law of persons………………………………………………………………68 Topic 2: Law of tort……………………………………………………………….....78 Topic 3: Law of contract…………………………………………………………....122 Topic 4: Sale of goods……………………………………………………………....153 Topic 5: General principles of consumer credit……………………………….…....168 Topic 1: Indemnity and Guarantees……………………………………………..….174 Topic 6: Partnership…………………………………………………………………182 Topic 7: Insurance………………………………………………………… ………..190 Topic 8: Agency……………………………………………………………………..197 Topic 9: Negotiable instruments…………………………………………………….209 Topic 10: The law of property……………………………………………………….221 Topic 11: Resolving commercial disputes…………………………………………...240 Topic 12: Emerging issues and trends Revised on: September 2016 www.someakenya.com Contact: 0707 737 890 Page 6 TOPIC 1 INTRODUCTION TO LAW NATURE PURPOSE AND CLASSIFICATION OF LAW MEANING OF LAW, NATURE AND PURPOSE OF LAW MEANING OF LAW Law, simply put, refers to the set of rules which guide our conduct in the society and is enforceable by the state via public agencies. Law in its general sense tends to be as a result of the necessary relations arising from the nature of things. In this sense all things have their laws. Humans, material world, superior beings and even animals all have their own laws. Simply put, the nature of these relationships tends to determine the nature of the laws. But the intelligent world is far from being so well governed as the physical. This is because intelligent beings are of a finite nature, and consequently liable to error; and on the other, their nature requires them to be free agents. Hence they do not steadily conform to their primitive laws. Law in general is human reason, inasmuch as it governs all the inhabitants of the earth: the political and civil laws of each nation ought to be only the particular cases in which human reason is applied. According to the oxford dictionaries law can be defined as; The system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties NATURE OF LAW The different schools of thought that have arisen are all endeavors of jurisprudence: Natural law school Positivism, realism among others. It is these schools of thoughts that have steered debates in parliaments, courts of law and others.  Natural law theory asserts that there are laws that are immanent in nature, to which enacted laws should correspond as closely as possible. This view is frequently summarized by the maxim: an unjust law is not a true law, in which 'unjust' is defined as contrary to natural law.  Legal positivism is the view that the law is defined by the social rules or practices that identify certain norms as laws www.someakenya.com Contact: 0707 737 890 Page 7  Legal realism- it holds that the law should be understood as being determined by the actual practices of courts, law offices, and police stations, rather than as the rules and doctrines set forth in statutes or learned treatises. It had some affinities with the sociology of law.  Legal interpretivism- is the view that law is not entirely based on social facts, but includes the morally best justification for the institutional facts and practices that we intuitively regard as legal. Generally speaking law has the following characteristics 1. It is a set of rules. 2. It regulates the human conduct 3. It is created and maintained by the state. 4. It has certain amount of stability, fixity and uniformity. 5. It is backed by coercive authority. 6. Its violation leads to punishment. 7. It is the expression of the will of the people and is generally written down to give it definiteness. 8. It is related to the concept of 'sovereignty' which is the most important element of state. FUNCTIONS/PURPOSES OF LAW 1. It promotes peaceful coexistence/ maintenance of law and order/ prevents anarchy 2. It is a standard setting and control mechanism. Law sets standards of behaviour and conduct in various areas such as manufacturing, construction, trade e.g. The law also acts as a control mechanism of the same behaviour 3. It protects rights and enforces duties by providing remedies whenever these rights or duties are not honoured. 4. Facilitating and effectuating private choice. It enables persons to make choices and gives them legal effect. This is best exemplified by the law of contracts, marriage and succession. 5. It resolves social conflicts. Since conflicts are inevitable, the rule of law facilitates their resolution by recognizing the conflicts and providing the necessary resolution mechanism. 6. It controls and structures public power. Rules of law govern various organs of 7. Government and confer upon them the powers exercisable by them. The law creates a limited Government. This promotes good governance, accountability and transparency. It facilitates justice in the society. www.someakenya.com Contact: 0707 737 890 Page 10 Criminal law This is the law of crimes. A crime is an act or mission committed or omitted in violation of public law e.g. murder, treason, theft, e.t.c. All crimes are created by parliament through statutes A person who is alleged to have committed a crime is referred to as a suspect. As a general rule, suspects are arrested by the state through the police at the instigation of the complainant. After the arrest, the suspect is charged in an independent and impartial court of law whereupon he becomes the accused. Criminal cases are generally prosecuted by the state through the office of the Attorney General (AG) hence they are framed as R (the State) Vs Accused E.g. R v Kamenchu Under the Constitution, an accused person is presumed innocent until proven or pleads guilty. If the accused pleads not guilty, it is the duty of the prosecution to prove its case against him by adducing evidence i.e. the burden of proof in criminal cases is borne by the prosecution. The standard of proof is beyond any reasonable doubt i.e. the court must be convinced that the accused committed the offence as charged. In the event of reasonable doubt, the accused is acquitted. If the prosecution proves its case i.e. discharges the burden of proof, then the accused is convicted and sentenced. The sentence may take the form of:- 1. Imprisonment 2. Fine 3. Probation 4. Corporal punishment 5. Capital punishment 6. Community service 7. Conditional or unconditional discharge Under the Constitution, a person cannot be held guilty of an act or omission which was not a criminal offence on the date of omission or commission. Civil law It is concerned with the rights and duties of persons i.e. individuals and corporations. Branches of civil law include:-  Law of contract  Law of torts  Law of property  Law of marriage  Law of succession www.someakenya.com Contact: 0707 737 890 Page 11 When a person’s civil or private rights are violated, he is said to have a cause of action. Examples of causes of action:  Breach of contract  Defamation  Assault  Negligence  Trespass to goods e.t.c Causes of action are created by parliament through statutes as well as the common law and equity. The violation of a person’s civil rights precipitates a civil case or action. The person whose rights are allegedly violated sues the alleged wrongdoer hence civil cases are framed as Plaintiff v Defendant. It is the duty of the plaintiff to prove his allegations against the defendant. This means that the burden of proof is borne by the plaintiff. The standard of proof in civil cases is on a balance of probabilities or on a preponderance of probabilities i.e. the court must be satisfied that it is more probable than improbable than the plaintiff’s allegations are true. If the plaintiff proves his allegations by evidence, he wins the case and is awarded judgment which may take the form of:- 1. Damages (monetary compensation) 2. Injunction 3. Specific performance 4. Account 5. Tracing 6. Winding up a company 7. Appointment of receiver www.someakenya.com Contact: 0707 737 890 Page 12 Differences between civil wrong and crime CIVIL WRONG CRIME Definition offence against another individual Offence against the state Purpose To deal with the disputes between individuals, organizations, or between the two, in which compensation is awarded to the victim. To maintain the stability of the state and society by punishing offenders and deterring them and others from offending. Standard of proof Claimant must produce evidence beyond the balance of probabilities. Beyond reasonable doubt Parties involved The plaintiff, the party that is suing The defendant , the one being sued Prosecution which represent the state and the accused Burden of proof Claimant must give proof however, the burden may shift to the defendant in situations of Res Ipsa Loquitur (The fact speaks for itself). "Innocent until proven guilty": The prosecution must prove defendant guilty. Type of punishment Compensation (usually financial) for injuries or damages, or an injunction in nuisance. A guilty defendant is subject to Custodial (imprisonment) or Noncustodial punishment (fines or community service). In exceptional cases, the death penalty. The rule of law The concept of the Rule of Law is a framework developed by Dicey on the basis of the English Legal system. It is also described as the due process. According to Dicey, rule of law comprises three distinct conceptions namely: 1. Absolute supremacy or predominance of regular law: this means that all acts of The State are governed by law. It means that a person can only be punished for disobedience of the law and nothing else. 2. Equality before the law: this means equal subjection of all persons before the law. It means that no person is exempted from obeying the law. All classes of persons are subjected to the same judicial process regardless of their age, sex, creed, gender or race. 3. The law (Constitution) is a consequence and not the source of rights: means that the law is a manifestation of the will of the people. Factors undermining rule of law  Excessive power of the Executive  Non - independent Judiciary  Corruption www.someakenya.com Contact: 0707 737 890 Page 15 Rights theory This is based on the view that certain human rights are fundamental and should be observed. This therefore means that its primary focus is on individuals in society. There are two primary category of rights theory 1) Kantianism 2) The modern rights theory Kantianism Immanuel Kant was a strict deontologist. He viewed humans a moral actors free to make choices. According to this philosopher morality of a given action was determined by applying categorical imperative, that is, judge an action by applying it universally. For instance if you are to steal then the question is, are you will to let everyone steal freely? Since this threatens your future security then you may conclude that stealing is wrong. Modern right theories One major problem with Kantianism is that it imposes duties to be absolute. This implies that lying or killing for instance would be perceived to be unethical. Modern theorist believes that there may be circumstances when action like lying and killing could be morally acceptable for instance self defense. One popular theory believes that you should abide by a moral rule unless a more important rule conflicts with it, that is, our moral compulsion is not to compromise a person’s right unless a greater right takes priority over it. Due to this moral relativism, modern rights theorists have choices to make. They must determine what the fundamental rights are and how they are ranked in importance. Most courts tend to use this approach. Justice theory This is derived from John Rawls’s book A Theory of Justice, which argued for just distribution of society’s resources. This can be referred to as a fair allocation of society’s benefits and burdens among all members of society. Rawls argues that self-interested rational persons behind the veil of ignorance would choose two general principles of justice to structure society in the real world: 1. Principle of equal liability- each person has equal right to basic rights and liberties. 2. Difference principle- social inequities are only acceptable if they cannot be eliminated without making the worst-off class even worse off. Under the justice theory, the decision makers’ choices are to be guided by fairness and impartiality, however, the focus in on the outcome of the decision. Consider a company that has two choices in terms of production, that is, produces locally or outsource, based on this theory the company can choose to outsource assuming the workers in the other country are badly off than the local workers. Utilitarianism This derived from the workings of Jeremy Bentham and John Stuart Mill. Under utilitarianism, an ethical decision is one that maximizes utility for society as a whole. Thus, in our individual www.someakenya.com Contact: 0707 737 890 Page 16 decision we should always calculate their costs and benefits for every member of society. An action is ethical only if the benefits to society outweigh their costs. This means that at times decision makers have to sacrifice their own interest if doing so gives greater benefit to society. Profit maximization This is a teleological theory that is based on the laissez faire theory of capitalism championed by Adam Smith. It proposes that managers should managers should maximize a business’s long run profits within the limits of law. Unlike utilitarianism, in profit maximization the managers focus solely on those decisions result into more profits for the organization. Critics view this to be entirely untrue since in the quest for more profit other issues such as employees’ welfare could be ignored. www.someakenya.com Contact: 0707 737 890 Page 17 SOURCES OF LAW The various sources of law of Kenya are identified by: 1. Judicature Act 2. Constitution 3. Hindu Marriage and Divorce Act 4. Hindu Succession Act 5. Kadhis Court Act. Sources identified by the Judicature Act 1. The Constitution 2. Legislation (Act of Parliament) (Statutes) 3. Delegated legislation 4. Statutes of General Application 5. Common law 6. Equity 7. Case law or (judge–made law) 8. Africa Customary law Sources identified by the Constitution and the Kadhis Court Act Islamic law Sources identified by the Hindu Marriage and Divorce Act1 and The Succession Act2 Hindu law Sources of law of Kenya may be classified as: 1) Written and unwritten sources 2) Principal and subsidiary sources THE CONSTITUTION A Constitution is a public document, which regulates the relations between the state and its citizens as well as the relations between the organs of the state. This is a body of the basis rules and principles by which a society has resolved to govern itself or regulate its affairs. It contains the agreed contents at the political system. A Constitution sets out the basic structure of government. The Constitution of Kenya is a source of law from which all other laws derive their validity. Any law which conflicts or is inconsistent with the Constitution is void. Article 2 (4) of the Constitution provides '' any other law is inconsistent with the Constitution, www.someakenya.com Contact: 0707 737 890 Page 20 The passing of a Bill into law The Bill passes through the following stages to become law i. First reading ii. Second reading iii. Committee stage iv. Reporting stage v. Third reading vi. President's Assent Before the first reading, the Bill is published in the Kenya Gazette for information purposes. All bills must be published in the Kenya Gazette to inform the public and parliamentarians of the intended law. As a general rule, a Bill must be published at least 14 days before introduction to the National Assembly. However, the National Assembly Is empowered to reduce the number of days. First reading: Under this stage, the clerk reads out only the title of the bill. No debate or vote takes place here. After the first reading the dale for the second reading is fixed. If the Bill is approved at this stage, then it is printed and circulated among the members of Parliament to enable them prepare for a debate of this Bill. This Is the Introductory stage of law making. Second reading: This is the most important stage of the bill. At this stage the Minister or the member in charge of the Bill explains the main feature of the Bill. A debate takes place and the members of the house are allowed to participate in the debate. Committee stage: It the bill is passed at the second reading, then it moves to the committee stage. Here the details of the various aspects contained in the bill are analysed and scrutinized by the committee of the whole house or a select committee which consists of some selected members of the house. Report Stage: After scrutiny and analysis at committee stage, the report of the same is submitted to the house. If any amendments are made at the committee stage, the same are debated again, then the bill moves to the third reading if approved Third reading: Here there are no much debates. A final vote is given after minimal debate, and if approved, the bill is said to have been passed President's Assent: A bill passed by the National Assembly does not become law until the President gives his assent. The President may refuse to give his assent if in his opinion the bill does not serve the best interest of the people. A bill becomes a law as scan as it gets the President’s assent. www.someakenya.com Contact: 0707 737 890 Page 21 PRESIDENT'S REFUSAL TO ASSENT TO THE BILL. 1. Under Article 115 of the Constitution, the President shall within 14 days after the bill has been presented to him stonily to the speaker that he assents to the bill 2. In case of refusal, the President shall within 14 days of the refusal, submit a memorandum to the speaker indicating the specific provisions of the bill which in ills opinion should he reconsidered by the National Assembly. 3. The National Assembly shall reconsider a bill referred to it by the President and shall either:- i. Approve the recommendations proposed by the President with or without amendments and resubmit the bill to the President for his assent or ii. Refuse to accept the recommendations and approve the bill in its original form by a resolution in that behalf supported by votes of not less than two-thirds of all members of the national assembly. In this case the President shall assent to the bill within 14 days of the passing of the resolution. If the President fails to assent to a bill or refer it back to Parliament before the end of 14 days, then the bill shall be taken to have been assented to on the expiry of the 14days. 4. The Act shall then be published in the Kenya Gazette before its operation as a law Under Article 116 of the Constitution A Bill passed by parliament and assented to by the President shall be published In the Gazelle as an Act of Parliament within seven days after assent. Statute law legislation is a principal source of law applicable throughout Kenya. It must be consistent with the Constitution. It is the most important source of law. Advantages of Statutes Law 1. Democratic: Parliamentary law making is the most democratic legislative process. This is because parliaments the world over consist of representatives of the people they consult regularly. Statute Law, therefore, is a manifestation of the will of the people. 2. Resolution of legal problems: Statute Law enables society to resolve legal problems as and when they arise by enacting new statutes or effecting amendments to existing Law. 3. Dynamic: Statute Law enables society to keep pace with changes in other fields e.g. political, social or economic. Parliament enacts statutes to create the necessary policies and the regulatory framework. 4. Durability: Statute Law consists of general principles applicable at different times in different circumstances. It has capacity to accommodate changes without requiring amendments. 5. Consistency/Uniformity: Statute Law applies indiscriminately i.e. it regulates the conduct of all in the same manner and any exceptions affect all. 6. Adequate publication: Compared to other sources of Law, statute Law is the most widely published in that it must be published in the Kenya Gazette as a bill and as a Law. Additionally, it attracts media attention. www.someakenya.com Contact: 0707 737 890 Page 22 7. It is a superior source of law in that only the Constitution prevails over it. Disadvantages of Statute Law 1. Imposition of Law: Statute Law may be imposed on the people by the dominant classes in society. In such a case, the Law does not reflect the wishes of the citizens nor does it cater for their interests. 2. Wishes of M.Ps: Statute Law may at times manifest the wishes and aspirations of M.Ps as opposed to those of the citizenry. 3. Formalities: Parliamentary Law making is tied to the Constitution and the National Assembly standing orders. The Law making process is slow and therefore unresponsive to urgent needs. 4. Bulk and technical Bills: Since parliament is not made up of experts in all fields, bulky and technical Bills rarely receive sufficient treatment in the national assembly, their full implications are not appreciated at the debating stage. Functions of parliament 1. Controls government spending 2. Critical function 3. Legislative functions How to make the law making process effective 1. M.Ps should consult constituents on a regular basis. 2. Subdivision of large constituencies. 3. Establishment of offices in constituencies for M.Ps 4. Enhance civic education 5. All Bills ought to be supported by not less than 65% of all MPs so as to become Law. 6. Bills should be widely published e.g. the Kenya Gazette should be made available to larger segments of the society. Bills must be published in newspapers STATUTES OF GENERAL APPLICATION Kenyan Law does not define the phrase “Statutes of General Application”. However, the phrase is used to describe certain Statutes enacted by the UK parliament to regulate the inhabitants of UK generally. These Statutes are recognized as a source of Law of Kenya by Section 3 (1) (c) of the Judicature Act. However, there application is restricted in that they can only be relied upon: 1. In the absence of an Act of parliament of Kenya. 2. If consistent with the provisions of the Constitution. 3. If the Statute was applicable in England on or before the 12/8/1897 4. If the circumstances of Kenya and its inhabitants permit. www.someakenya.com Contact: 0707 737 890 Page 25 5. Detailed and technical: It is contended that in certain circumstances, delegated legislation made by experts is too technical and detailed for the ordinary person. Unwritten sources of law Unwritten sources of law apply subject to the written sources. Written sources prevail over unwritten sources in the event of any conflicts. This is primarily because unwritten law is generally made by a supreme law-making body. These sources include: 1. Common law 2. Equity 3. Case law 4. Islamic law 5. Hindu law 6. African Customary law. COMMON LAW It may be described as a branch of the law of England which was developed by the ancient common Law Courts from customs, usages and practice of the English people. These courts relied on customs to decide cases before them thereby giving such customs the force of law. The court of Kings Bench, Court Exchequer and the court of common pleas are credited for having developed common law. These courts standardized and universalized customs and applied them in dispute resolution. At first, common law was a complete system of rules both criminal and civil. The development of the common law is traceable to the Norman Conquest of the Iberian Peninsula. The Romans are credited for having laid the foundation for the development of the common law. Characteristics of common law 1. Writ System. 2. Doctrine of stare decisis 1. The writ system At common law, actions or cases were commenced by a writ. There were separate writs for separate complaints. Writs were obtained at the Royal office. A Writ stated the nature of the compliant and commanded the police officer of the country in which the defendant resided to ensure that the he appeared in court on the mentioned date. Often, www.someakenya.com Contact: 0707 737 890 Page 26 police officers demanded bribes to compel the defendant to appear in court and would not compel an influential defendant. The writ system did not recognize all possible complains and many would be plaintiffs could not access the courts. It also lengthened the judicial process. 2. Doctrine of stare decisis Stare Decisis literally means “decision stands” or “stand by the decision.” This is a system of administration of justice whereby previous decisions are applied in subsequent similar cases. At common Law, a judge having once decided a case in a particular manner had to decide all subsequent similar cases similarly. This made the common Law system rigid. Common Law consists of decisions handed down by courts of law on the basis of customs and usages and may be described as the English Customary Law. Problems/shortcomings of common law 1. Writ System: Cases at common Law were commenced by a writ issued by the Royal office. There were separate writs for different complaints. However: a) This system did not recognize all possible complaints and many would be plaintiffs had no access to the courts b) The writ system encouraged corruption c) It lengthened the course of justice 2. Rigidity/inflexibility: The common Law courts applied the doctrine of Stare Decisis.This practice rendered the legal system rigid and hence unresponsive to changes. 3. Procedural technicalities: The Common Law procedure of administration of justice was highly technical. Common Law courts paid undue attention to minor points of procedure and many cases were often lost on procedural matters. 4. Delays: The administration of justice at common Law was characterized by delays. Defendants often relied on standard defenses to delay the course of justice. These defenses were referred to as essoins and included; Being out by floods, being unwell or being away on a crusade. If sickness was pleaded, the case could be adjourned for 1 year and 1 day. 5. Non-recognition of trusts: Common Law did not recognize the trust relationship. This is an equitable relationship whereby a party referred to as a trustee, expressly, impliedly or constructively holds property on behalf of another known as beneficiary. At common Law www.someakenya.com Contact: 0707 737 890 Page 27 beneficiaries had no remedies against errant trustees and trustees had no enforceable rights against beneficiaries. 6. Inadequate remedies: Common Law courts had only one remedy to offer namely monetary compensation or damages. They could not compel performance or restrain the same. 7. Inadequate protection of borrowers: At common Law, a borrower who failed to honour his contractual obligations within the contractual period of repayment would lose not only his security but the total amount paid. THE DOCTRINES OF EQUITY Equity is a set of rules formulated and administered by the court of chancery before 1873 to supplement the rules of common law. This court dealt only those cases where common law either provided no remedy or provided a remedy which was not adequate. Equity therefore is a body of principles constituting what is fair and right. Origins of equity Citizens dissatisfied with the decision of the judges of common law often made petitions to the kings in council. The petitions were decided by the king himself or by his council. Due to much work, the king later delegated his function to his lord chancellor (advisor to the king) a clergyman to decide the appeals applying the rules of natural justice and morality. The petitions to the Lord Chancellor were made on the following grounds:- 1. The common law courts provided no remedy for certain wrongs e.g. trusts were not recognized. 2. The remedies provided in certain situations were not satisfactory e.g. in case of breach of contract, the only remedy available was damages, and specific performances injunctions were not recognized. 3. The common law courts sometimes acted under pressure or influence or bribes of the other party.The remedies granted by equity courts become known as equitable remedies. Principles of Equity During the early development of equity the early chancellors acted at their own discretion, but eventually they did follow the decisions of early chancellors. But the 8th century, some firm rules of equity were established which guided later chancellor in deciding disputes. These rules are known as equitable maxims – which are propositions or statement of equitable rules. www.someakenya.com Contact: 0707 737 890 Page 30 contract inter-parties; it is valid between the parties and can be specifically enforced. The tenant in this case was therefore liable to pay rent in arrears. 6. Equity imputes an intent to fulfill an obligation If a person is under an obligation to perform a particular act and he does some other act which is capable of being regarded as a fulfilment of this obligation, that other act will prima facie7 be regarded as fulfilment of the obligation. 7. Equity acts in personam This is a maxim which is descriptive of procedure in equity. It is the foundation of all equitable jurisdictions. Courts of law enforced their judgments in Rem (against property of the person involved in the dispute), e.g. by writs but the originally equitable decrees were enforced by Chancery acting against the person of the defendant (i.e. by imprisonment) and not in Rem Later, equity invented the alternative method of sequestrating the defendant‟s property until he obeyed the decree. These methods can still be used where necessary, but other and more convenient methods are often available today. Although the maxim has lost much of its importance, it is responsible for the general rule that an English court has jurisdiction in equitable matters, even though the property in dispute may be situated abroad, if the defendant is present in this country. This was so held in Penn v. Baltimore where the Defendant was ordered to perform a contract relating to land in America. However there must be some equitable right arising out of contract, trust or fraud. 8. Equity will not assist a volunteer Equity favours a purchaser for value without notice. A volunteer is a person who has not paid consideration. The exception to the application of this maxim is in Trust. In Jones v. Lock (1865) it was stated that the court is prevented from assisting a volunteer regardless of how undesirable the outcome might appear. Equity will therefore not grant specific performance for a gratuitous promise. 9. Equity will not suffer a wrong to be without a remedy “Ibis jus ibi remedium”: This means that if there is a wrong, there is a remedy for it. He who seeks solace in the arms of equity will not go away broken hearted. No wrong should be allowed to go unredressed if it is capable of being redressed by equity. However, not all moral wrongs can be redressed by equity. www.someakenya.com Contact: 0707 737 890 Page 31 The maxim must be taken as referring to rights which are suitable for judicial enforcement, but were not enforced at common law owing to some technical defect. 10. Equity does not act in vain The court of equity is shy and does not want to be embarrassed by granting remedies that cannot be enforced or issuing orders that cannot be obeyed by the Plaintiff. 11. Delay defeats equity or equity aids the vigilant and not the indolent: (vigilantabus, non dormientibus, jura subveniunt) A court of equity has always refused its aid to stale demands i.e. where a party has slept on his right and acquiesced for a great length of time. Nothing can call forth this court into activity, but conscience, good faith, and reasonable diligence. Where these are wanting, the Court is passive and does nothing. Delay which is sufficient to prevent a party from obtaining an equitable remedy is technically called “laches”. This maxim, however, has no application to cases to which the Statutes of Limitation8 apply either expressly or, perhaps, by analogy. There are thus three cases to consider- a) Equitable claims to which the statute applies expressly; b) Equitable claims to which the statute is applied by analogy; and c) Equitable claims to which no statute applies and which are, therefore, covered by the ordinary rules of laches. 12. Equity follows the law The Court of Chancery never claimed to override the courts of common law. “Where a rule, either of the common or the statute law, is direct, and governs the case with all its circumstances, or the particular point, a court of equity is as much bound by it as a court of law and can as little justify a departure from it. It is only when there is some important circumstance disregarded by the common law rules that equity interferes. “Equity follows the law, but neither slavishly nor always.” If Common law and Equity conflict Equity prevails. Both Common law and Equity are recognized as sources of law of Kenya (c) Of the Judicature Act. However, only the substance of common Law and the doctrines of equity are recognized. Their application by Kenyan Courts is further qualified. A court of law can only rely on Common law or equity as a source of Law: 1. In the absence of an Act of parliament. 2. If it is consistent with written law including the Constitution. www.someakenya.com Contact: 0707 737 890 Page 32 3. If it was applicable in England on 12/08/1897. 4. If the circumstances of Kenya and its inhabitants permits. 5. Subject to such qualifications as those circumstances may render necessary. AFRICAN CUSTOMARY LAW African customary law may be described as the law based on the customs of the ethnic groups which constitute Kenya’s indigenous or Africa population. Section 3(2) of the judicature act provides as follows: “The high court and all subordinate court shall be guided by African customary in civil cases in which one or more of the parties is subject to it, or affected by it, so far is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without any delay.” For a custom to be relied upon as law, it must have certain characteristics: 1. Reasonableness; A good local custom must be reasonable i.e it must be consistent with the principle of justice. Whether or not a custom is reasonable is a question of facts to be determined by the courts. 2. Conformity with statute law: A local custom must be consistent with parliament made law. This is because parliament is the principle law-making body and has Constitutional power to disqualify the application of any rule of custom. 3. Observation as of right: A good local custom is that which a society has observed openly and as of right i.e. not by force or by stealth nor at will. 4. Immemorial antiquity: A custom must have been observed since time immemorial. Time immemorial means that no living person can attest as to when the custom did not exist. The application of African customary is however limited as follows: a) The courts are to be guided by African customary law. This provision gives judge/magistrate discretion whether to allow a particular rule of customary law to operate or not. The judge is not bound to apply any rule of customary law and there refuse to apply it if, for example if is repugnant to justice. In the case of Wambui Otieno – Vs – Joash Ougo and Umira Kager Clan the court of appeal stated that the provision that courts are to be guided by African by African customary law means that courts must have in mind African customary (unless it is repugnant to justice and morality or inconsistent with a written law) www.someakenya.com Contact: 0707 737 890 Page 35 Declaratory Precedent This is the application of an existing principle of law in a subsequent similar case. Binding precedent This is an earlier decision which binds the court before which it is relied upon. E.g. a precedent of the Court of Appeal used in the High Court. Persuasive Precedent This is an earlier decision relied upon in a subsequent case to persuade court to decide the case in the same manner e.g. a High Court decision used in a Court of Appeal, or a decision handed down by a court in another country. Distinguishing precedent This is a subsequent decision of a court which effectively distinguishes the earlier precedents. It is a precedent in its own right. However, in certain circumstances, a court may refrain from a binding precedent. In such circumstances, the earlier decision is ignored. This is done in the following circumstances: 1. Distinguishing; This is the art of showing that the earlier decision and the subsequent case relate to different material facts. This enables a judge to ignore the precedent. 2. Change in circumstances: A judge may refrain from an earlier decision of a brother judge if circumstances have changed so much so that its application would be ineffectual i.e. the decision no longer reflects the prevailing circumstances. 3. Per incurium: It literally means ignorance or forgetfulness. An earlier decision maybe departed from it if the judge demonstrates that it was arrived at in ignorance or forgetfulness of law, i.e the court did not consider all the law as it existed at the time. 4. Over-rule by statures: If a precedent has been over-ruled by an Act of Parliament. It ceases to have any legal effect as statute law prevails over case law. 5. The earlier decision is inconsistent with a fundamental principle of law 6. If the ratio decidendi of the previous decision is too wide or obscure. 7. If the ratio decidendi relied upon is one of the many conflicting decisions of a court of co- ordinate jurisdiction. 8. Improper Conviction: In Kagwe v R. (1950) it was held that a court could refrain from a binding precedent if its application was likely to perpetuate an incorrect, erroneous or improper conviction in a criminal case. Advantages of case law (importance of stare decisis) 1. Certainty and predictability; Stare Decisis promotes certainty in law and renders a legal system predictable. In Dodhia’s Case 1970, the Court of Appeal was emphatic that „a system of law requires a considerable degree of certainty.‟ www.someakenya.com Contact: 0707 737 890 Page 36 2. Uniformity and consistency: Case law enhances uniformity in the administration of justice as like cases are decided alike. 3. Rich in detail: stare decisisis rich in detail in that many decisions which are precedent shave been made by courts of law. 4. Practical: Principles or propositions of law are formulated by superior courts on the basis of prevailing circumstances hence the law manifests such circumstances. 5. Convenience: Case law is convenient in application in that judges in subsequent cases are not obliged to formulate the law but to apply the established principles. 6. Flexibility: It is contended that when judges in subsequent cases attempt to distinguish earlier decisions as to justify departing from them, this in itself renders the legal system flexible. Disadvantages of case law 1. Rigidity: Strict application of stare decisis renders a legal system inflexible or rigid and this generally interferes with the development of law. 2. Bulk and complexity: Since stare decisisis based on judicial decisions and many decisions have been made, it tends to be bulky and there is no index as to which of these decisions are precedent. Extraction of the ratio decidendi is a complex task. 3. Piece-meal: Law-making by courts of law is neither systematic nor comprehensive in nature. It is incidental. Principles or propositions of law are made in bits and pieces. 4. Artificiality in law (over-subtlety): when judges in subsequent cases attempt to distinguish indistinguishable cases, they develop technical distractions or distinctions without a difference. This makes law artificial and renders the legal system uncertain. 5. Backwardlooking: Judges or courts are persuaded / urged to decide all cases before them in a manner similar to past decisions. It is contended that this practice interferes with the ability of a judge to determine cases uninfluenced by previous decisions. International Instruments Though not listed in the Judicature Act, international law is a source of Kenyan law. The government is party to a number of international legal instruments and Kenyans can use these as an additional tool for the advancement of their rights. However, it only becomes enforceable in Kenya after they have been incorporated into our domestic legal system by implementing legislation. www.someakenya.com Contact: 0707 737 890 Page 37 ADMINISTRATIVE LAW Meaning Administrative Law can be defined as the law relating to public administration. It is the law relating to the performance, management and execution of public affairs and duties. Administrative law is concerned with the way in which the Government carries out its functions. Administration is the act or process of administering, which simply means it is the act of meting out, dispensing, managing, supervising and executing government functions It is the law relating to control of governmental power. It can also be said to be the body of general principles, which govern the exercise of powers and duties by public authorities. The primary purpose of administrative law, therefore, is to keep the powers of government within their legal bounds, so as to protect the citizen against their abuse. Administrative law is also concerned with the administration and dispensation of delivery of public services. However it does not include policy making. Administrative law is concerned with how the government carries out its tasks. The government tasks include delivery of public services such as health, security, facilitating trade, arbitration of disputes, and collection of revenue. Administrative law is the law relating to the executive branch of government. The law deals with a variety of things e.g. i. The establishment of public authorities e.g. the city council, establishment of public bodies and organs. ii. The nature of the tasks given to various public organs and public agencies. iii. The legal relationship between the public bodies themselves and also between the public agencies and the public and between public agencies and the citizens. Administrative Law is concerned with the means by which the powers and duties of the various public agencies, public bodies and public institutes can be controlled. Administrative functions can be divided into a number of broad categories namely 1. Ministerial functions; Examples of Ministerial Functions are those functions carried out or performed by Government Ministers in their implementation of governmental policies and programs. Examples include appointment of public officials by Ministers and the grant of ministerial approvals and consents. 2. Administrative functions: these are the functions carried out by public officials and public bodies in their management of various governmental bodies in their provision of www.someakenya.com Contact: 0707 737 890 Page 40 The principles of natural justice are rules governing procedure and conduct of administrative bodies. They were developed by the courts in England and imported into Kenya as part of common law principles. Principles of natural justice are implied i.e. they are not expressed in a statute; they are supposed to apply in every case unless a statute expressly states that they will not apply. Principles of natural justice are applicable in the absence of statutory provisions authorizing their applicability or their observance. Unless the application of principles of natural justice is expressly or impliedly excluded by statutory provisions these principles are always to be implied. It is to be implied that parliament has authorised the applicability and observance of the principles of natural justice in every case. To which bodies do the principles of natural justice apply? In Kenya these principles apply so long as a public body has power to determine a question affecting a person’s rights. The principles also apply to bodies in every case involving a question affecting a person’s interest. Wherever there is a right there is an interest but not vice versa. Interest may include other things. Interest may be pecuniary interest or something else and does not necessarily have to be a right. In Mirugi Kariuki v. The Attorney General,the court of appeal held that the mere fact that the exercise of discretion by a decision making body affects the legal rights or interests of a person makes the principles of natural justice applicable. These principles apply to administrative bodies that are judicial, quasi-judicial legislative or administrative. THE PRINCIPLES/RULES Broadly the principles are two 1. Nemo Judex in causa sua – which means that procedures must be free from bias. 2. Audi Alteram Partem – which means that no person should be condemned unheard i.e. a person should not be denied an opportunity to be heard. These two principles have been broken down into a number of principles or rules which are as follows: 1. Rule against bias 2. The right to be heard 3. Prior notice 4. Opportunity to be heard 5. Disclosure of information 6. Adjournment www.someakenya.com Contact: 0707 737 890 Page 41 7. Cross examination 8. Giving reasons 9. Legal representation 1. RULE AGAINST BIAS In summary there can be bias when: 1. There is some direct interest in the matter to be adjudicated; e.g. pecuniary interest; 2. Where short of a direct interest there is a reasonable appearance or likelihood of bias; 3. Where there is actual bias. In R v. Hendon Rural District Council ex-parte Chorley, the court quashed the decision of a Rural District Council allowing some residential property in Hendon to be converted into a garage and restaurant because one of the councillors who was present at the meeting which approved the application to convert the premises was an Estate Agent who was at the same time acting for the owners of the properties. The Court issued Certiorari to quash the decision of the council on the ground that the agent‟s interest in the business disqualified him from taking part in the council‟s consideration of the matter. Concerning likelihood of bias, the case is Metropolitan Properties Ltd v. Lannon applies. The court quashed the decision of a rent assessment committee reducing rent of a certain flat because the chairman of the rent assessment committee lived with his father in those flats. In this case, the court said; “… in considering whether there was a real likelihood of bias, the court does not look at the mind of the Chairman of the tribunal who sits in a judicial or quasi judicial capacity. The Court looks at the impression which would be given to other people. Even if he was as impartial as he could be nevertheless, if right minded people would think that in the circumstances there was a real likelihood of bias on his part then he should not sit. And if he does sit, his decision cannot stand. Surmises or conjecture is not enough there must be circumstances from which a reasonable man would think it likely or probable that it would or did favour one side unfairly at the expense of the other”. 2. RIGHT TO BE HEARD This is simply that a concerned person must be given a right to be heard. If an administrative body fails to give a concerned person the right to be heard, whatever decision it makes will be invalidated upon review. The case that illustrates the point is the case of David Onyango Oloo v.The Attorney General, where the Commissioner of Prisons purported to deprive Onyango Oloohis sentence remission to which he was entitled under the Prisons Act without giving him an opportunity to be heard. Quashing the decision, Justice Nyarangi stated; “… there is a presumption in the interpretation of statutes that the rules of natural justice will apply. In this case the rule in question was the one concerning the right to be heard.” www.someakenya.com Contact: 0707 737 890 Page 42 3. PRIOR NOTICE This rule requires that adequate prior notice be given to a person of any charge or allegation. It simply means that if an administrative body makes a charge it has to give a person against whom allegations have been made adequate notice before a decision is made. Prior notice must be served on the relevant party. The notice must contain sufficient detail to enable the person concerned to know the substance of any charge, allegation or action to be taken against him. Again the case of David Onyango Oloo applies here. In that case the court also stated “The commissioner of prisons at the very least ought to have done the following acts: i. Inform the Appellant in writing in a language the Appellant understands the disciplinary offence he is alleged to have committed and the particulars of the offence; ii. Afford the Appellant an opportunity to be heard in person and to fix reasonable time within which the appellant must submit his written answer.” 4. OPPORTUNITY TO BE HEARD There is no settled rule as to whether hearing should be oral or written but in all cases one must be afforded a chance to present his case whether oral or written. 5. DISCLOSURE OF INFORMATION A concerned party must be given all information which the decision maker will rely on to make his judgment. This rule requires that all allegations and reports bearing on a person‟s case must be disclosed to that person. Failure to do so is fatal to a decision. In Ridge v. Baldwin the House of Lords held that the Chief Constable of Brighton who held an office, from which by statutory regulations he could only be removed on grounds of neglect of duty or inability, could not validly be dismissed in the absence of the notification of the charge and an opportunity to be heard in his defence. This is one of the key cases in Judicial Review and disclosure of information. 6. ADJOURNMENT Natural Justice requires that a party be granted adjournment of a hearing of a case if the exigencies require (it does not matter how guilty a person is, if exigencies arise, they must be accorded an adjournment by the administrative body and if they are denied an adjournment and a decision is given, the court will quash such a decision) Please note that wrongful refusal to adjourn amounts to a denial of a fair hearing and will result in the quashing of a decision. This was stated in the case of Priddle v. Fisher & Sons. A heating engineer was denied an adjournment in a case he was supposed to be represented by a trade union representative. The decision of the court arising out of the proceedings in the absence of the applicant was held to be unfair. www.someakenya.com Contact: 0707 737 890 Page 45 This order may be issued against: 1. A judicial body acting in an administrative capacity i.e. Industrial Court. 2. An administrative body performing administrative duties or against the government officials. 3. It can be issued to stop a public body from continuing proceedings that are ultra vires. 4. It can also be issued to stop an administrative body from continuing to do something in excess of jurisdiction. 5. It can also be used to stop an administration body from abusing their powers. In R v. Electricity Commissioners Ex parte Electricity Joint Committee (1924) Lord Denning stated as follows; “It is available to prohibit administrative authorities from exceeding their powers or misusing them.” Lord Atkin in the same case stated that “If proceedings establish that the body complained of exceeded its jurisdiction, by entertaining matters which would result in its final decision being subject to being brought up and quashed on certiorari, I think that Prohibition will lie to restrain it from exceeding its jurisdiction.” This illustrates the point that prohibition will lie to restrain an administrative body from doing something wrongly or misusing its power, abuse of power etc. When one applies for the order of Certiorari, one is seeking to quash a decision that has already been made. At the time of application for judicial review, the order you seek the court to quash must be presented to the court by making a photocopy of the order and attaching it to the Application. With Prohibition, you do not have to attach the copy of the order. 3. MANDAMUS The order of Mandamus is derived from the Latin word “Mandare” meaning “to command”. It is a court order issued to compel the performance of a public duty where a public body or official has unlawfully refused, declined or otherwise failed to undertake the duty. Mandamus issues where there is a duty imposed by statute or common law.The duty must Be a public duty. Mandamus will not issue in respect of a duty that is of a private nature even if The body in question is a public body. For example where two construction companies agree to undertake some work who agree to resolve any dispute between them by arbitration through the industrial court, the industrial court will be performing a private function and thus the order of Mandamus cannot issue. www.someakenya.com Contact: 0707 737 890 Page 46 For Mandamus to issue, the Applicant must have made a request for the performance of a public duty which has been refused, declined or ignored. This means that if a public administrative body refused to do something, you must approach it and request it to perform the function or the courts will not hear you. Unreasonable delay on the part of the public body will be treated as refusal. The duty must be a specific duty. You cannot apply for the order of Mandamus for a duty that is general, it must be specific. Mandamus is used to enforce performance of specific duties and not the exercise of merepowers. In Daniel Nyongesa & Others v. Egerton University College (1989), Nyongesa’s exam results were held by the university and when he went to court, the court issued an order of mandamus for the court to release the results. Nyongesa had requested the University for his results and they had refused so he applied for an order of mandamus to the court and he was granted. There was a specific duty for the university to release the results. JUDICIAL CONTROL OF THE EXECUTIVE Judicial Review is the process through which an aggrieved person can find redress in a Court of Law. Judicial Review forms part of administrative law because it is the most appropriate way that a party aggrieved by an administrative body can find redress. Judicial Review refers to the examination of the actions or inactions of public bodies by the High Court. Judicial Review is an examination of the manner in which a decision was made or an act done or not done. This definition is found in Chief Constable of North Water Police V. Evans The purposes of Judicial Review from that definition are as follows: 1. To prevent excessive exercise of powers by administrative bodies and officials; 2. To ensure that an individual is given fair treatment by Administrative authorities; 3. To keep Administrative excesses in check and also to provide a remedy to those aggrieved as a result of excessive exercise of power by administrative bodies. The primary legal basis of Judicial Review is the Law Reform Act.1 From the wording of Section8 of the Law Reform Act, one can only apply for Judicial Review in the High Court and not the Magistrates Courts. www.someakenya.com Contact: 0707 737 890 Page 47 Grounds of judicial review By looking at the grounds of judicial review, we will be studying the circumstances in which an aggrieved person may petition the High Court for Judicial Review. Courts of Law will intervene in public administration in one or more of the following circumstances i.e. courts of law will review actions of administrative bodies in one or more of the following circumstances: 1. When a body acts ultra vires; 2. Unreasonableness; 3. When there is jurisdictional error; 4. When there is an error of law; 5. When there is an error of fact; 6. When there is an abuse of power; 7. When irrelevant considerations governed the making of a decision; 8. When there is bias; 9. When there is unfair hearing; 10. When there is procedural flaw; 11. When there is irrationality 12. When a public official or body acts in bad faith; 13. When there is breach of the principles of natural justice. There are some overlaps in these grounds e.g. what amounts to procedural flaw may at the same time amount to ultra vires. In actual practice any one of the grounds will entitle an aggrieved party to apply for judicial review and in actual practice circumstances occasioning judicial review will involve one or more of those grounds. One does not have to have all the 13 circumstances to apply for judicial review. Any one of the grounds will suffice and the list is not exhaustive. 1. DOCTRINE OF ULTRA VIRES The doctrine of ultra vires is a legal doctrine. In the English Legal System judicial control of administrative agencies is based on the doctrine of ultra vires. This is the doctrine on the basis of which the courts will interfere or intervene in matters of public administration. Ordinarily courts would not interfere. What is ultra vires It simply means “beyond the powers” so that if ultra vires is the basis in which courts will interfere or intervene on matters of public administration then the point is that courts will intervene on matters of public administration if the administrative bodies have acted beyond the powers that have been conferred on them. www.someakenya.com Contact: 0707 737 890 Page 50 This can happen:  When a body erroneously exercises power or authority over a matter that is outside of its territorial limits.  Where a body legislates over a matter that falls outside of the matters it is authorised to legislate over.  Where an administrative body declines to exercise jurisdiction to hear and decide a case or to legislate over a matter over which it has jurisdiction to hear or decide or legislate over. (the Administrative body has the authority to do something but it declines to do it.)  It may also arise when a body fails to administer a function or to carry out a duty that it has the statutory authority to administer or to carry out. In case any one of these things occurs and a person is aggrieved, the aggrieved person can apply to the High Court for Judicial Review on the ground that a public body has committed jurisdictional error. 4. ERROR OF LAW An error of law is a condition or an act of ignorance, negligence or imprudent deviation or departure from the law. Ignorant departure would include a situation where an administration official is ignorant of the law. If the Minister of Local Government for example has no idea that he cannot sack an elected mayor, this is an act of ignorance. Negligence would be where an administrative body fails to do what the law provides and in that case they have failed to look up the law to see what it provides. This can result from a number of things: 1. Failure to ascertain what the law says about a particular matter; 2. misconstruction of the law; 3. Misinterpretation of the law; 4. Blatant disregard of the law; 5. Misunderstanding of the law; or 6. Misdirection on the law (this involves a situation where an administrative body seeks direction on the law) i.e. if the head of civil service seeks direction from the AG or from the Chief Justice or Minister for Justice and Constitutional Affairs and they give incorrect directions on the same, this is misdirection. 5. ERROR OF LAW ON THE FACE OF THE RECORD In all the above cases, it is usually said that there is an error of law on the face of the record. An error of the law on face of the record is an error which may be ascertained by an examination of the record of proceedings without recourse to any evidence. Just by looking at the record of proceedings, one can tell that the law was not followed. www.someakenya.com Contact: 0707 737 890 Page 51 The result of error of law is that the decision made and all the acts done in error of law are invalidated upon judicial review because they are illegal. In R v. Northumberland Compensation Appeals Tribunal ex parte Shaw a former employee of an administrative body claimed compensation on termination of his employment. Under the applicable regulations the tribunal was required to assess compensation payable by aggregating two periods of employment i.e. the law was saying that in computing compensation one would have to aggregate two periods of employment. In its decision the tribunal stated that of the two periods of employment, they would take into account only the second period. Upon application for judicial review this decision was quashed because of the error of law that had been committed. The court found that this amounted to an error on the face of the record and the decision was quashed. The court issued an order of certiorari which involves the production of proceedings of the tribunal to the High Court so they can be quashed. 6. ERROR OF FACT It is important to note that facts are integral to the making of a decision. The validity of a decision depends on the proper appreciation and interpretation of facts. An error of fact occurs where there has been an act or a condition of ignorance, negligence or imprudent deviation from facts. This may occur from a number of facts: 1. Where facts have not been properly appreciated; 2. Where facts have not been properly interpreted; 3. Where there is an incorrect finding of facts; 4. Where irrational conclusions are made from facts; 5. Where a decision is made without giving due regard to the factual circumstances of the case at hand. The effect of error of facts is that it renders a decision null and void. 7. ABUSE OF POWER Abuse of power includes cases where the power and authority given public bodies have: 1. been put to a wrong or improper use; 2. been used so as to injure or to damage; 3. been misused; 4. Been used corruptly. If the court finds that an administrative body has abused its power or his power, any act done or decision made will be invalidated. 8. IMPROPER EXERCISE OF DISCRETION An administrative body has the authority to exercise discretion whenever the limits of its statutory authority leave it to decide between two or more causes of action or inaction. www.someakenya.com Contact: 0707 737 890 Page 52 There will have to be a statutory authorisation to do something but the statutory provisions does not completely specify what one is authorised to do. The exercise of discretion is an important aid to the exercise of statutory powers. Whenever circumstances give rise to the exercise of discretion: 1. Discretion must be exercised properly; 2. Discretion must be exercised reasonably; 3. Discretion must be exercised by the proper authority only and not by a delegate; 4. Discretion must be exercised without restraint; Certain circumstances will give rise to improper exercise of discretion which includes: 1. Exercising discretion for improper motive; 2. Where power to exercise discretion is delegated to a person who is not charged with the responsibility in question; 3. Where discretion is exercised so as to serve self-interest. Consider Fernandes V. Kericho Liquor Licensing Court. The case concerns the authority given to Kericho Liquor Licensing Court to grant licences. In this case they decided they were only going to give liquor licences to Africans. The Court ruled that they had exercised their discretion improperly by deciding to issue licences only to Africans. 9. IRRELEVANCY Irrelevancy occurs in two situations: 1. Where a decision making body considers a matter which it ought not to consider in arriving at a decision; e.g. if on the basis of gender a licence is denied. 2. Where an administrative body disregards something which it ought to consider in making a decision. 10. BIAS It is a predetermined tendency to favour one outcome, one outlook or one person against another. It involves acting partially i.e. acting favourably to one side. Whenever an allegation of bias is made, a reviewing court will investigate whether there is an appearance of partiality. A reviewing court will evaluate whether there is a tendency of one side to favour one person. There are certain principles that will guide the court in determining the presence of bias. (i) The Real Likelihood of Bias; Circumstances in which the court will conclude that there was a real likelihood of bias include cases where the decision maker has an interest in the matter under consideration. Interest may be pecuniary, interest may also be adverse. (ii) The Real Danger Test: www.someakenya.com THE COURT THE STRUCTURE The Courts operate two levels: Superior Courts and Subordinate Courts. The important aspects in the Structure of Courts are: i. The structure – The hierarchy or levels of Courts. ii. Establishment – The composition or who presides in that C iii. Jurisdiction – The powers of different Courts to hear and determine disputes. Jurisdictions are either Geographical / territorial limits of their powers or Functional powers (to hear Original matter, Appellate matter or both matters or subject matter or Pecuniary (the range of monetary or financial value of subject matter). The figure illustrates the structure and explains the hierarch of the Courts as it is today in Kenya. Contact: 0707 737 890 SYSTEMS ourt. (whether it is civil or criminal justice) Page 55 nn www.someakenya.com Contact: 0707 737 890 Page 56 The arrow on the figure shows the hierarchy of courts in Kenya. There are two levels of courts Superior Court (consist of Supreme Court, Court of Appeal and High Court) and Subordinate Courts ( Resident Magistrate Court, Kadhi Courts, Court Martials, Tribunals, District Magistrate Courts Classes 1st, 2nd and 3rd.) The arrows show flow of appeal from one level to the next. The arrows represent flow of appeals in both civil and criminal appeals except criminal appeals from District Magistrate class III which go to Resident Magistrates courts. District Magistrate courts are situated in all the districts except of District Magistrate Class III which in some sparsely populated Districts especially North Eastern Province Kenya where their powers have been delegated by the Chief Justice to the District Officers through notices in the Kenya Gazette. This structure of the courts is based on the provisions of the Constitution, the Magistrates Court Act (Cap. 10), the Kadhis Court Act (Cap. 11) and the Armed Forces Act (Cap. 199) Laws of Kenya. MAGISTRATE COURT Article 169 1,a of the constitution of Kenya 2010 creates the Magistrate court. This is where majority of the judiciaries cases are heard. Magistrate courts are generally located in every district in Kenya. The presiding judicial officer in Magistrate court could be a Chief Magistrate, Senior Principal Magistrate, Senior Resident Magistrate, Resident Magistrate or Principle Magistrate. Their authorities vary in administrative responsibility and range of fining and sentencing abilities. The Judicature Act is the statute passed by parliament detailing the varying powers and jurisdiction of Magistrates and Judges. COURTS MARTIAL Article 169 1,c of the constitution of Kenya 2010 creates the Courts Martial. this is the military court where matters involving members of the Kenya Defense Forces are heard. Appeals from this court are heard by the High Court. KHADHI COURT Article 169 1,b of the Constitution of Kenya 2010 creates the Kadhi court. This is a court that hears civil matters relating to Islamic law. The parties involved must all be followers of Islam and all must agree that the matter to be decided under Islamic law. The matter cannot be criminal in nature. The matter must be civil in nature e.g. Divorce, succession etc. The court is headed by a Chief Kadhi and parliament is given the authority to enact laws describing the guidelines, qualification and jurisdiction of this court. Appeals from Kadhi Court are heard by the High Court. TRIBUNALS Tribunals are bodies established by Acts of Parliament to exercise judicial or quasi-judicial functions. They supplement ordinary courts in the administration of justice. Tribunals, however, do not have penal jurisdiction. www.someakenya.com Contact: 0707 737 890 Page 57 Tribunals, like the courts, have to respect the Bill of Rights in their decisions and not be repugnant to justice and morality or be inconsistent with the Constitution or other laws of the land. Most tribunals are subject to the supervision of the High Court. Administration Tribunals in Kenya They are set up by law to adjudicate disputes that arise out of the statutes creating them. They deal with the administration and enforcement of the Act concerned. For example, the Rent Tribunal determines questions arising out of the Administration and Rent Restriction Act and the Business Rent Tribunal, which deal with con-trolled commercial tenancy. Tribunals, like the courts, have to respect the Bill of Rights in their decisions and not be repugnant to justice and morality or be inconsistent with the Constitution or other laws of the land. Most tribunals are subject to the supervision of the High Court. Inquiry Tribunals in Kenya They are full-scale inquiries dealing with urgent matters of public importance. For example, an inquiry tribunal may be set up to investigate corruption, mishandling of issues and improper conduct of public officers. Domestic Tribunals in Kenya They are set up by private organisations for administration purpose, settling disputes and exercising disciplinary control of members, professional group. Jurisdiction is therefore, contractual and limited by rules or regulations, which comprise the terms of the contract.Other tribunals include: Energy, Environmental, Teachers Service, Land Dispute, Capital Markets, Water Appeal and Cooperative, among others. THE HIGH COURT Establishment: The High Court is established under Article 165 and it consists of a number of judges to be prescribed by an Act of Parliament. The Court is organized and administered in the manner prescribed by an Act of Parliament. The Court has a Principal Judge, who is elected by the judges of the High Court from among themselves. Composition: Ordinarily, the High Court is duly constituted by one Judge sitting alone. However there are instances where two or more High Court Judges may be required to determine certain kinds of cases. Appointment of Judges: Are appointed by the President in accordance with the advice of Judicial Service Commission. They are laid down special qualifications required of a person to be eligible for appointment as a Judge, namely: www.someakenya.com Contact: 0707 737 890 Page 60 question referred to it. The decision of the High Court is binding on the Court that referred the question to the High Court and it must dispose of the case in accordance with the High Court’s decision. 3. Admiralty Jurisdiction Section 4 of the Judicature Act Chapter 8 (1967) provides that the High Court will act as a court of admiralty and will decide “matters arising on the high seas or in territorial waters or upon any lake or other navigable inland waters in Kenya”. The law applicable to be exercised “the conformity with international law and the comity of nations”. 4. Election jurisdiction Under the National Assembly and Presidential Election Act, the High court has special powers to hear and determine disputes arising from the national electoral process. The High Court may make an order as it deems fit, including the nullification of the election results upon hearing of a petition presented to it by a voter or loser in the election. For the High Court to nullify the election of a Member of Parliament, the petitioner must prove that an election offence has been committed. The composition of the High court is that one (1) Judge sits to determine dispute in parliamentary election while Three (3) Judges must sit if it is presidential election. Any appeal on the High Court decision on Presidential election goes to the Court of Appeal where at least five (5) Judges will sit to determine the appeal. Disputes in the election of councilors go to subordinate courts. 5. Succession/Probate Jurisdiction The Probate Division of the High court has jurisdiction to hear any application and determine any dispute and pronounce such decree and issue such orders as my be expedient in inheritance matters e.g. the High Court may issue probate i.e. a person has been validly appointed by a will to administer the property of the deceased. 6. Matrimonial Cases The court exercises jurisdiction in divorce matters. In exercise of its matrimonial jurisdiction, the High Court may issue orders for:  Dissolution of marriage.  Nullity of marriage.  Separation and maintenance (alimony).  Custody, adoption and guardianship of infants  Spousal Property and financial adjustments etc. www.someakenya.com Contact: 0707 737 890 Page 61 7. Other powers  To protect and enforce Fundamental rights and Freedoms of individuals which are set out in Chapter Four of the Constitution also otherwise referred to as Bill of Rights.  To hear and determine Bankruptcy proceedings.  To supervise winding up of dissolved companies. ENVIRONMENT AND LAND COURT An Act of Parliament to give effect to Article 162(2)(b) of the Constitution; to establish a superior court to hear and determine disputes relating to the environment and the use and occupation of, and title to, land, and to make provision for its jurisdiction functions and powers, and for connected purposes INDUSTRIAL COURT OF KENYA The Industrial court is established in pursuant of Article 162 (2) (a) of the Constitution of Kenya 2010, for the purpose of settling employment and Industrial relations disputes and the furtherance, securing and maintenance of good employment and labour relations in Kenya. The Industrial Court is a superior court of record with the status of the High Court and shall and exercise jurisdiction throughout Kenya. Jurisdiction The court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162 (2) of the Constitution and the Provisions of the Industrial Court Act or any other written Law which extends jurisdiction to the court relating to employment and Labour relations including:- a) disputes relating to or arising out of employment between an employer and an employee b) disputes between an employer and a trade union. c) disputes between an employer’s organisation and a trade union’s organization, d) disputes between trade unions, e) disputes between employer organisations, f) disputes between an employer’s organisations, g) disputes between an employer’s organisation and trade union, h) disputes between a trade union and a member thereof, i) disputes between an employer’s organisation or a federation and a member thereof, j) disputes concerning the registration and election of trade union officials, and k) disputes relating to the registration and enforcement of collective agreements. In exercise of its jurisdiction, the court shall have power to make any of the following orders:- i. interim preservation orders including injunctions in cases of urgency ii. a prohibitory order iii. an order for specific performance www.someakenya.com Contact: 0707 737 890 Page 62 iv. a declaratory order v. An award of compensation in any circumstances contemplated under the Industrial Court Act or any written Law. vi. An award of damages in any circumstances contemplated under the Industrial Court Act or any written Law. vii. An order for reinstatement of any employee within three years of dismissal, subject to such conditions as the court thinks fit to impose under circumstances contemplated under any written Law. viii. Any other appropriate relief as the court may deem fit to grant. Appellate Jurisdiction The court shall have appellate jurisdiction to hear and determine appeals from:- a) Decisions of the Registrar of trade unions, and b) Any other court, local tribunal or commission and prescribed under any Written Law. Composition of the court The court shall consist of; a) The Principal Judge; and b) Such number of Judges as the President may, acting on the recommendations of the Judicial Service Commission, appoint The Principal Judge shall be elected in accordance with the procedure prescribed in Article 165 (2) of the Constitution. The Principal Judge shall hold office for a term of not more than five years and shall be eligible for re-election for one further term of five years. The Principal Judge shall have supervisory powers over the Court and shall be answerable to the Chief Justice. In the absence of the Principal Judge or in the event of a vacancy in the office of the Principle Judge, the Judges of the Court may elect any other Judge to have and exercise and perform the powers and functions of the Principal Judge, and who shall be deemed to be the Principle Judge. THE COURT OF APPEAL Establishment: The Court of Appeal is established under Article164 of the Constitution of Kenya 2010. Composition: The Court of Appeal consists of a number of judges, being not fewer than 12 (twelve), as may be prescribed by an Act of Parliament and the Court is to be organized and administered in the manner prescribed by an Act of Parliament. The Court comprises of a www.someakenya.com Contact: 0707 737 890 Page 65 4. Prepare and implement programmes tar the continuing education and training of judges and judicial officers; and 5. Advise the national government on improving the efficiency of the administration of justice. In the performance of its functions, the Commission shall be guided by the following:- i. Competitiveness and transparent processes of appointment of judicial officers and other staff of the judiciary; and ii. The promotion of gender equality. Generally, the JSC serves the following functions as well: 1. Administration: It is the principal administrative organ of the judiciary i.e. administers the judicial department 2. Advisory: It advises the President on the appointment of Judges of superior courts. Its vote is purely advisory. 3. Appointment: It engages-Magistrates, High Court Registrars, Kadhis and other judicial staff e.g. personnel, officers. clerks etc. – 4. Discipline: It disciplines Magistrates, Registrars, Kadhis and other staff of the department. THE ATTORNEY GENERAL Establishment: This office is established by Article 156 (1) of the constitution. It is an office in the public service. Appointment: Under Article 156 (2), the Attorney-General shall be nominated by the President and, with the approval of the National Assembly, appointed by the President. Under Article 156 (3) the qualifications for appointment as Attorney-General are the same as for appointment to the office of Chief Justice, i.e.: o At least 15 years experience as a superior court judge; or o At least 15 years' experience as a distinguished academic, judicial officer, legal practitioner or such experience in other relevant fecal field POWERS OF THE ATTORNEY GENERAL Under Article 156, the Attorney General a. Is the principal legal adviser to the Government; b. Shall represent the national government in court or in any other legal proceedings to which the national government is a party, other than criminal proceedings; and c. Shall perform any other functions conferred on the office by an Act of Parliament or by the President. - The Attorney-General shall have authority, with the leave of the court, to appear as a friend of the court (amicus curie) in any civil proceedings to which the Government is not a party. - He is an ex-officio member of the National Assembly. www.someakenya.com Contact: 0707 737 890 Page 66 - He drafts all government bills. - He is the head of the bar i.e. most senior lawyer - He represents the state in all civil cases. - He services the legal needs of other government department - He is a member of the Judicial service Commission - He sits in the Cabinet - He is a member Of the Committee of the prerogative of mercy - The Attorney-General shall promote, protect and uphold The rule of law and defend the public interest. - The powers of the Attorney-General may be exercised in person or by subordinate officers acting in accordance with general or special instructions ADVOCATES Definition: Under section 2(1) of the interpretation and General Provisions Act Cap 2 and the Advocates Act 1989 an advocate is any person whose name has been duly entered as an advocate in the Roll of Advocates. He has also been defined as a person who has been admitted as an advocate by :Ire Chief Justice. The law relating to Advocates is contained in the Advocates Act 1989 Qualifications for admission To qualify for admission as an advocate, one must: 1. Be a citizen of Kenya 2. Hold a law degree from a recognized University 3. Satisfy the Council of Legal Education examination requirements. Procedure for Admission 1. A formal petition must be made to The chief Justice through the high court register. 2. Copies of the petition must be sent to the Council of legal education and the Law society of Kenya 3. Notice of the petition must be given. 4. The petition must be published in the Kenya Gazette 5. The Chief Justice hears the petition in chambers. 6. The petitioner than takes the oath of office in open court 7. The admitted person then signs the roll of Advocates. Duties of an Advocate 1. Duty to the court: As an officer of the court, an advocate is bound to assist in the administration of justice by urging the law as it is. 2. Duly of client: An advocate owes a legal duty of care to his clients. He must urge his client's case in the best manner possible. 3. Duty to his profession: As a member of a profession, an advocate is bound to maintain the highest possible standards of conduct, integrity by observing the law and other rules. 4. Duty to society: As a member of the society, he is bound to assisting its social, political and www.someakenya.com Contact: 0707 737 890 Page 67 economic development. THE LAW SOCIETY OF KENYA Establishment: It is established by section 3 of the Law Society of Kenya Act, cap 18 as a body corporate by the name Law Society of Kenya. It has perpetual succession, can sue or be sued and has a common seal. Composition/Membership It consists of: a) Practicing advocates b) Non-practicing advocates c) Special membership d) Honorary membership The affairs of the society are managed by a council elected by the members. Objectives of the Law Society of Kenya Under section 4 of the Law Society of Kenya Act, its objects include: 1. To maintain and improve the standards of conduct and learning of the legal profession. 2. To facilitate acquisition of legal knowledge by members and others. 3. To assist the government and the courts in all matters relating to legal and administration of the law. 4. To represent, protect and assist members of the legal profession in relation to conditions of practice of law 5. To assist and protect members of the public in all matters touching or incidental to law 6. To raise or borrow money for its purposes 7. To acquire land and other property www.someakenya.com Contact: 0707 737 890 Page 70 partnership agreement provides for any limitation. A partnership consists of not more than twenty persons except in certain cases e.g. practicing solicitors, professions accountant and members of the stock exchange where this figure may be exceeded. Normally, the number of partners in a partnership business varies from two to five. In the case of banking business, the number of partners is limited to ten. The name of partnership must be registered first under the Registration of Business Names Act (Cap. 499). The formation of a partnership is not very complicated. The partners may sue and be sued in the name of their firm, but if they sue in the firm’s name they can be compelled to disclose the name and address of every members ofthe firm. If sued in the firm’s name they must enter an appearance in their own name individually but subsequently proceeding continues in the name of the firm. b. Trade Unions A trade union is the association of laborers. It has been defined by Prof. Web in the words, “A trade union is a continuous association of wage earners for the purpose of maintaining and improving the conditions of their employment. Trade unions are also unincorporated associations. All the trade unions in Kenya are established according to the provisions of Trade Unions Act (Cap 233). This Act defines a trade union as “an association or combination, whether temporary or permanent, of more than six persons, the principal objects of which are under its constitution the regulation of the relations between employees and employers, or between employees and employees.” Although a trade union is an unincorporated association but it may sue and be sued and be prosecuted under its registered name. This gives the trade union a form of corporate personality. It is done so as to facilitate any criminal and civil proceeding. Section 27 of the Act provides that: 1. A registered trade union may sue and be sued and be prosecuted under its registered name. 2. An unregistered trade union may sue and be sued and be prosecuted under the name by which it has been operating or its generally known. Section 25 of the Act provides that every trade union shall be liable on any contract entered into by it or by an agent acting on its behalf. This discussion proves that the trade unions have been given certain rights and privileges which are not given to other unincorporated associations. In spite of this fact, they are not separate legal entities of their own and cannot be treated as corporations. www.someakenya.com Contact: 0707 737 890 Page 71 NATURAL PERSONS Discussed below are the provisions of the law of persons on various natural persons. (a) Minors A minor is also known as an infant. He is a person who is below the age of majority. A person who has attained the age of majority is a major or an adult. The Age of Majority Act (Cap 33) provides that a person shall be of full age and cease to be under any disability by reason of age on attaining the age of eighteen years. The infants can sue and be sued in tort. The age of criminal responsibility is at the age of eight years. An infant is not eligible to vote until he has attained the age of eighteen years and whose name appears on the register of voters (Section 43(1). Constitution of Kenya). An infant can own personal property. As regards the immovable property, an infant’s name can be entered in the register as the owner of registered land (Section 113(1) of the registered Land Act (Cap 300). With exception of this right, an infant cannot own immovable property. Minority is a disability in the sense that there are certain things which a minor cannot do or be made liable for e.g. a minor cannot get a driving license. Special rules governing the minors in respect of contracts, property, succession, liability in torts and other areas of law, will be dealt with in their respective places in the chapters that follow. Legitimation A legitimate child is a child who is born within the wedlock (lawfully married) of the parents. On the other hand, an illegitimate child is a child who is born outside wedlock. Legitimation is the process by which an illegitimate child becomes legitimated. It is brought by the subsequent marriage of the parents of a child who was born illegitimate. Thus, if A and B, being unmarried, beget a child C, C is an illegitimate child; but if A and B subsequently get married, C is said to be legitimated and he thereby becomes a legitimate child. The Legitimacy Act (Cap 145) provides that an illegitimate child can be legitimated by the subsequent marriage of his parents. Section 5 of this Act provides that an illegitimate person after becoming legitimate is entitled to take any interest: a) In the state of an intestate dying after the date of legitimation, or b) Under any dispution coming into operation after the date of legitimation; or c) By descent under an entailed interest created after the date of legitimation He is treated as legitimate person as he had been legitimate. There is only one limit to this right i.e, when property devolves on children and the question of seniority arises, a legitimated person is deemed to have been born on the date of his legitimation. www.someakenya.com Contact: 0707 737 890 Page 72 Under the Law of Succession (Cap 160), the term child also includes an illegitimate child. This in effect gives an illegitimate child the same claim on his father’s estate as a legitimate child. Under the customary law, an illegitimate child has the same rights as a legitimate child. Adoption Adoption is the process by which parental rights are transferred from the natural parents of a child to other persons authorized by law. An infant can be adopted so that the relationship between the child and the adopter is similar to that of the parent and child. The adoption is governed in Kenya by the Adoption Act (Cap 143) An adoption order has the effect of vesting in the adopter all rights, duties, obligations and liabilities which were previously vested in the parent(s) or guardian(s) of the adopted child. And after adoption, the adopter becomes responsible for the custody, maintenance and education of the adopted child, and he has a right to consent or dissent to the marriage of the adopted child. Indeed, the adopted child is much in the same position as a child born to the adopter in lawful wedlock even in matters of family settlements and inheritance. The infant who is adopted will have also the same rights to the adopter’s property as if he were his real child. A resident magistrate’s Court has the jurisdiction to hear and issue adoption orders where all the consents required, have been given and where the adoption case is straight-forward. In other cases, the High Court makes Adoption Orders. Any person aggrieved by the making or refusal of an adoption order can appeal to the Court of Appeal. Guardianship An infant’s interests are normally protected by his parents. Where an infant has no parent there is need for a guardian to play this role. An infant whose interests are looked after by a guardian is known as a ward. The law relating to the guardianship and custody of infants is contained in the Guardianship of Infants Act (Cap 144). Section 3 of the Act provides that: 1. On the death of the father of an infant, the mother shall be the guardian of the infant, either alone or jointly with any guardian appointed by the father. When no guardian has been appointed, the court may appoint a guardian to act jointly with the mother. 2. On the death of the mother of an infant, the father shall be the guardian of the infant, either alone or jointly with ant guardian appointed by the mother. When no guardian has been appointed, the court may appoint a guardian to act jointly with the father. 3. Where an infant has no parent, no guardian of the person and no other person having parental rights with respect to it, the court, on the application of any person may appoint the applicant to be the guardian of the infant. The court may remove guardians, if it is deemed to be in the welfare of the infants. The court has the supervisory powers of control over a guardian. www.someakenya.com Contact: 0707 737 890 Page 75 descent born outside Kenya do not acquire the country’s citizenship from him or his father. Thus paternity is given prominence in the determination of citizenship by descent. 2. By registration Any woman who marries a citizen of Kenya may apply for registration and be granted citizenship. Similarly, a person of full age who is a citizen of a commonwealth country or a specified African country who has been ordinarily resident in Kenya for five years may be registered as a Kenya citizen upon making an application for this purpose. 3. By naturalization Section 93 of the Kenya constitution Act provides that an alien may apply to be a citizen and he may be granted with a certificate of naturalization if: a) He is of full age b) He has resided in Kenya for one year before the application c) He has resided in Kenya four a total of four years during the seven years before the one year in paragraph (b) 30 d) He is of good character; e) He has an adequate knowledge of the Swahili language; and f) He intends to remain a resident, if naturalized Note: The grant of citizenship by naturalization is purely discretionary Loss of Citizenship There is two ways in which citizenship can be lost. These are explained under 1. By Renunciation A citizen of Kenya who is also a citizen of some other country, is free to renounce his Kenya citizenship but he may do so only if he is of full age and capacity. For renunciation citizenship, he is required to make a declaration in prescribed manner. He ceases to be a citizen of Kenya upon registration of the declaration. A person who is a citizen of Kenya and also some other countries at the age of twenty one ceases to be a citizen of Kenya at the age of twenty three unless he has renounced the citizenship of that country. 2. By deprivation The Kenyan citizenship also may be lost by deprivation. But the deprivation applies only to those citizens who acquire Kenya citizenship by registration or naturalization. A person may be deprived from citizenships in following cases: a) Has shown himself to be disloyal towards or disaffected towards Kenya; b) Has during the war in which the country was engaged, traded with or otherwise assisted the enemy. c) Has, within five years of registration or nationalization been sentenced for more than twelve months imprisonment. www.someakenya.com Contact: 0707 737 890 Page 76 d) Has resided continuously abroad for seven years and has neither been in service of Kenya or an international organization which county is a member, nor registered annually at a Kenya consulate his intention to retain the citizenship or e) Has obtained his registration or naturalization by fraud, false representation or concealment of a material fact. Provisions of the law of persons on Domicile and Residence A person’s domicile is the place where he permanently resides with an intension to remain. Mere residence is not sufficient. Animus manedi i.e. an intention to permanently remain must be established. In order to establish the domicile of a person, the following two elements are taken to consideration. i. Actual residence ii. ‘Animus Manedi’ i.e. the intention to remain in that place or country Where these two elements co-exist, a person is said to have a domicile in that country. For example, a Ugandan citizen may decided= to live permanently in Kenya. In that case Ugandans acquires a domicile in Kenya. The law relating to domicile in Kenya is contained in the “The laws of Domicile Act (cap. 37).” There are three types of domicile: origin, choice and dependence. These are explained as under: i) Domicile of Origin A person acquires his domicile of origin at birth. A legitimate child inherits its father’s domicile (S.3), an illegitimate child inherits its mother’s (S.3) and under common law a founding (i.e. an abandoned child) has its domicile of origin continuous until he acquires a new one (S.4) ii) Domicile of Choice ‘A man acquires a new domicile by taking up his fixed habitation in a country which is not that of his domicile of origin.’ (S.8) He is then said to have acquired a domicile of choice, where upon the domicile of origin is relinquished. He may however later resume his domicile of origin. A domicile of choice continuous until the former domicile is resumed or until another domicile is acquired. It is important to note that the only person of full age and capacity may acquire the domicile of choice. For example a Kenyan may decide to live in Tanzania permanently. In this case, he acquires Tanzania domicile though he remains a Kenyan citizen. iii) Domicile of Dependence Domicile of dependence is also sometimes described as dependent domicile. A person is said to have this kind of domicile if his domicile necessarily changes with that of another person on whom he is dependant. A woman acquires the domicile of the husband on marriage. An infant acquires the domicile of the father. www.someakenya.com Contact: 0707 737 890 Page 77 Domicile and Residence A place where a person lives, whether permanently or temporarily, is his residence. A person’s residence determines his liability of taxation, i.e. he is subject to the place where he resides; it also determined his status in war time-a person who is resident in a country with Kenya is engaged in war is automatically an enemy. Residence as such must be distinguished from domicile. A mere temporary stay is sufficient to constitute one a resident of a particular area but to be domiciled in a place one must intend to permanently remain there; residence is just one of the two elements required to prove domicile. There are two reasons which make it important to draw a distinction between the two; first to determine the law applicable and secondly to determine whether the court has jurisdiction in a particular case. As already seen, a person’s family relations and movable property are determined by the law of his domicile; they are not determined by the law of the place where he might be temporarily resident. Thus, if a domiciled Englishman takes up residence in Kenya dies in Kenya living movable property succession to the property will be governed by the government of England and not the law of Kenya. Regarding jurisdiction, courts usually have jurisdiction over persons who are resident within their territorial jurisdiction. Domicile and Nationality Domicile must be distinguished from nationality. While nationality is referable to as political system in the sense that a person owes his allegiance to the state that he is a national domicile on the other hand is referable to as a legal system: a person’s family relations in these matters like marriage and divorce, legitimacy etc, and also his movable property are governed by the laws of his domicile. Secondly, it is possible for a person to have a no nationality at all e.g. where he is rendered stateless upon being deprived of his citizenship; but every person must have a domicile at any one time. Thirdly, it is possible for a person to have dual citizenship, i.e. to be a citizen of more than one country at the same time but no one can have more than one domicile at the same time. Provisions of the law of persons on proceedings against the State The government may commit a civil wrong, just like an ordinary individual. The law relating to proceedings against the state is governed by the Kenya Government proceedings act (Cap.40). An aggrieved person has a right to sue the government for the act and defaults of its servants and agents. The government is liable for its own wrongful acts as well as those committed by its servants if the servant himself would have been liable in the first place. Section 4(1) of this Act provides that the state may be sued in tort in the following cases: a) In respect of the torts committed by it servants or agent. b) In respect of any breach of those duties which a person owes to his servants or agents at common law by reason of being their employer; and c) In respect of any breach of the duties attaching at common law of the ownership, occupation, possession and control of property: www.someakenya.com Contact: 0707 737 890 Page 80 It is the second that is usually referred to and it is worth noting that in torts in that sense malice becomes irrelevant in tort, i.e. if a person has a right to do something then his motive in doing it is irrelevant. Bradford Corporation v Pickles (1895) The defendant extracted water in undefined channels with the result that the water supply to the plaintiffs‟ reservoir was reduced. The defendant‟s motive in doing this was to force the plaintiffs to buy his land at his price. The action failed, as the defendant had a right to extract the water. As he had such a right, his motive, even if malicious, was irrelevant. There are two groups of exceptions to this basic principle: 1. Where malice is an essential ingredient of the tort, for example, in malicious prosecution, the plaintiff must prove not only that the defendant had no grounds for believing that the plaintiff was probably guilty, but also that the defendant was activated by malice. The reason for this requirement is that policy in this area favours law enforcement over individual rights. The result of the requirement is that there are few successful cases of malicious prosecution. 2. There are also torts where malice may be relevant to liability. For example, in nuisance malice may convert what would have been a reasonable act into an unreasonable one. Christie v Davey (1893) Plaintiff and defendant lived in adjoining houses. The plaintiff gave music lessons and this annoyed the defendant. In retaliation the defendant banged on the wall and shouted while the lessons were in progress. The plaintiff was held to be entitled to an injunction because of the defendant‟s malicious behaviour. VICARIOUS LIABILITY Generally each person is liable for his or her own torts. There are circumstances however, that another person may be held liable for torts committed by another. This is referred to as vicarious liability. This mostly tend to occur in employment scenarios The following must exist to establish liability; 1) There must be a master/servant relationship between the parties concerned 2) The servant must have been acting in the course of employment at the material www.someakenya.com Contact: 0707 737 890 Page 81 Who exactly is a servant? Masters/Employers will only be liable for the torts of their employees/servants. They will not usually be liable for the torts of their independent contractors. It is therefore necessary to establish the status of the tortfeasor. The control test In this case a servant is defined as someone over whom the master has control over, i.e. someone employed over a contract of service. While an independent contractor is someone who is under a contract for service in which case such a person work using their own judgement. In Collins v Hertfordshire, Hilbery J said: "The distinction between a contract for services and a contract of service can be summarized in this way: In one case the master can order or require what is to be done, while in the other case he can not only order or require what is to be done, but how it shall be done." The nature of the employment test One accepted view is that people who have a 'contract of service' (an employment contract) are employees, but people who have a 'contract for services' (a service contract) are independent contractors. What is “course of employment?” An acts done under the course of employment where it is proved to have been authorized by the master. An employer will usually be liable for a) Wrongful acts which are actually authorised by him. b) Acts which are wrongful ways of doing something authorised by the employer, even if the acts themselves were expressly forbidden by the employer Limpus v. London General Omnibus Co. 1862 A bus driver racing to a stop to collect passengers deliberately obstructed the driver of a bus of a rival company, overturning the latter's vehicle. The bus driver had been given instructions against obstructing other buses. Held; The defendants were liable. The driver was acting within the course of his employment at the time; it was immaterial whether his act was forbidden. The master is only liable if the tort was committed in the course of employment. See the following case; www.someakenya.com Contact: 0707 737 890 Page 82 Storey v. Ashton (1869) A driver took a different route to make a frolic of his own. On this way he caused an accident because of his negligence. Held; No liability of the company, though this was just a little detour, the driver was carrying out his own business. Note; Not every detour taken by the drive will usually take him out of the course of employment because some may be necessary. The circumstances surrounding the case should be considered too. THE INDEMNITY PRINCIPLE There is a term implied at common law into contracts of employment that an employee will exercise all reasonable care and skill during the course of employment. An employee who is negligent is in breach of such a term and the employer who has been held vicariously liable for the tort may seek an indemnity from the employee to make good the loss. LIABILITY IN RESPECT OF AN INDEPENDENT CONTRACTOR The employer is generally not liable for torts committed by an independent contractor. The employer is however liable if he is deemed to have committed the tort. This may occur in the following instances: 1. Whether the employer has authorized the commission of the tort In many circumstances, the law will attribute to a man the conduct of another being, whether human or animal, if he has instigated that conduct. He who instigates or procures another to commit a tort is deemed to have committed the tort himself. In Ellis v. Sheffield gas Consumers Co the defendant who had no authority to up the street employed a contractor to open trenches and lay gas pipes along a street. The contractor carelessly left a heap of stones on the footpath; the plaintiff fell over them and was injured. Held: the defendants were liable since the contract was to do an illegal act, a public nuisance. The decision would have been different had it been lawful for the defendant to dig up the streets. 2. Torts of Strict Liability The employer is liable in those circumstances e.g. in Rylands-v-Fletcher the employer was held liable for the acts of his independent contractors as this was a case of strict liability. These in torts of strict liability, the employer will be liable even where the tort e.g. the escape is caused by the negligence of an independent contractor. In Terry v. Aston, the defendant employed an independent contractor to repair a lamp attached to his house and overhanging the footway. As it was not security fastened, the lamp fell on the plaintiff, a passer-by and the defendant was held liable, because: it was the defendant‟s duty to www.someakenya.com Contact: 0707 737 890 Page 85 It was held that the defendants were not liable for the wrongful act of their employee. Since the act was one of the personal vengeances and was not done in the course of employment; it not is an act of a class which the employee was authorized to do or a mode of doing an act within that class. In Poland v. John Parr and Sons, Arthur Hall, a carter was employed by John Parr. Parr and his son were conveying a wagon with bags of sugar. Arthur, on his way home for dinner was walking else to the wagon. The plaintiff, a schoolboy, was walking home in the same direction with his hand upon one of the bags of sugar. Honestly and reasonably thinking that the boy was stealing, Arthur gave him a blow on the back of his neck as a result whereof he fell and the wheel of the wagon injured his foot which was amputated. Held: In the circumstances, the carter had implied authority to make reasonable efforts to Protect and preserve the defendants’ property; that the violence exerted was not so excessive as to take his act outside the scope of authority and that the defendant were liable. 4. Where there is an express prohibition An express prohibition does not negate liability i.e. a master does not escape liability simply because he had an express prohibition. For liability to be determined, two factors are considered: i. Whether the prohibition limits the sphere of employment. If it does, the master is not liable for an act done outside the sphere. (Sphere). ii. Where the prohibition deals with the contract within the sphere of employment. If it does, the employer will be liable. (Mode) In Canadian Pacific Railway Co v. Lockhart a servant of the appellant Company in disregard of written notices prohibiting employers from using private cars for the purpose of the company’s business unless adequately insured, used his uninsured motorcar as a means of execution of work which he was ordinarily employed to do in the course of which he injured the respondent. Held: The means of transport was incidental to the execution of work, which the servant Was employed to do and that the prohibitions of the use of an uninsured motorcar merely limited the mode of executing the work, breach of the prohibition did not exclude the liability of the company to the respondent. In Rand v. Craig, Carters were employed by a contractor to take rubbish from certain works to his dump and were strictly forbidden not to hip it anywhere else. Some of the carters, without knowledge of the contractors, and in contravention of their orders took the rubbish to a piece of unfenced land belonging to the plaintiff as it was nearer the works that the dump of contractor. Held: The illegal acts complained of where not within the sphere of the carter’s employment And consequently the contractor was not liable for them. www.someakenya.com Contact: 0707 737 890 Page 86 5. Whether the act was a deliberate criminal act In Lloyd-v-Grace Smith & Co., the plaintiff had sought advice from the defendants, a firm of solicitors, whose managing clerk conducted conveyance work without supervision. He advised the plaintiff to sell some property, fraudulently persuading her to sign certain documents that transferred the property to him. He disposed of it and kept the proceeds. Held: Even though the fraud had not been committed for the benefit of the employers, Nevertheless they were liable, for the clerk had been placed in position to carry over such work and had acted throughout in the course of his employment. This principle is subject to the following exceptions 1) Cases where the employer is under some statutory duty which he cannot delegate 2) Where the employer retains his control on the contractor 3) Where the contract becomes a tort such as nuisance 4) Where the rule in Ryland v Fletcher (1866) applies STRICT LIABILITY Generally emphasis has been placed by courts on fault based liability. Strict liability is an exception to this principle. This is liability without fault. Where torts are of strict liability there is no need for the plaintiff if to prove fault on the defendant’s part. It is important to distinguish strict liability from absolute liability. In absolute liability, a particular wrong is actionable without proof of fault and in addition there is no defense availed to the wrongdoer. In strict liability however, the wrongdoer has a number of defense availed to him/her, hence the difference between the two. Strict liability is clearly brought out in the following case; Rylands v. Fletcher (1866) The defendant owned a mill and constructed a reservoir on their land. The reservoir was placed over a disused mine whose passages communicated with the adjoining mine of the plaintiff. The defendant was not aware of this fact and therefore took no precaution against it. Water from the reservoir filtered through to the disused mine shafts and then spread to a working mine owned by the claimant causing extensive damage. Held: The defendants were strictly liable for the damage caused by a non- natural use of land. It was immaterial that there was no fault on their part. The following statement made by Lord Cranworth, explains the rule behind this case; “If a person brings, or accumulates, on his land anything which, if it should escape, may cause damage to his neighbour, he does so at his peril. If it does escape, and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage.” www.someakenya.com Contact: 0707 737 890 Page 87 Liability under Rylands v Fletcher is now regarded as a particular type of nuisance. It is a form of strict liability, in that the defendant may be liable in the absence of any negligent conduct on their part. Imposing liability without proof of negligence is controversial and therefore a restrictive approach has been taken with regards to liability under Rylands v Fletcher, It is worth noting that the rule refers to anything likely do mischief, this poses its own challenges. THE RULE IN RYLANDS v. FLETCHER Anyone who in the course of non – natural use of his land, accumulates thereon for his own purposes anything likely to do mischief if it escapes is answerable for all direct damage thereby caused. This is the rule in Rylands v. Fletcher where the defendant employed independent contractors to construct a water reservoir on the land, which was separated from the plaintiffs land by adjoining land. In the course the works the contractors came upon some old shafts and passages filled with earth. The contractors did not block them up. Unknown to them, the shafts connected their land with the plaintiff’s mines. When the water filled the reservoir, it seeped through the old shafts and into the plaintiff’s mines thence flooding them. It was found as a fact that the defendant was not negligent, although the contractors had been. However, although the defendant was neither negligent nor vicariously liable in the tort of his independent contractors, he was held liable by the Court of Exchequer chamber and the House of Lords. The judgment of the Court of Exchequer chamber was delivered by Blackburn J. at P. 279 -280 and it has become a classical exposition of doctrine. “We think that the true rule of law is, that the person who for his own purpose brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequences of its escape.” This may be regarded as the „rule in Rylands v. Fletcher’ But what follows is equally important. The court further said: “He can excuse himself by showing that the escape was owing to the plaintiff’s default; or the act of God: it is unnecessary to inquire what excuse would be sufficient”. The general rule, as above stated, seems to be just in principle. “The person whose grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water from the neighbor’s reservoir, whose cellar is invaded by filth of his neighbours or whose habitation is made unhealthy by the fumes and noise and vapours of his neighbours alkali works, is damnified without any fault of his own; and it seems reasonable and just that the neighbour, who has brought something on his own property which was naturally there harmless to others so long as it is confirmed to his own property, but which he knows to be mischievous if it gets on his neighbours should be obliged to make good the damage which www.someakenya.com Contact: 0707 737 890 Page 90 In Hale-v-Jennings Bros, the court held that an occupier of land was entitled to damages for personal injury under the Rule in Rylands-v-Fletcher. In Cattle-v-Stocker Waterworks co, it was held that purely economic loss was not recoverable. Requirement for strict liability to be applicable; 1. Accumulation on the defendant’s land The defendant must bring the hazardous material on to his land and keep it there. If the thing is already on the land or is there naturally, no liability will arise under. The thing must be accumulated for the defendant's own purposes and the thing that escapes need not be the thing accumulated. Miles v Forest Rock Granite (1918) The defendant was blasting rocks using explosives which they had brought onto their land. Some of the rocks flew onto the highway and injured the claimant. The claimant brought an action based on the principal established in rylands v. Fletcher. Held: The defendant was liable despite the fact that the rocks were not brought on to the land nor purposively collected and kept there. The explosives were accumulated and caused the rocks to escape. 2. A thing likely to do mischief The thing need not be essentially hazardous, it should only be a thing likely to cause damage if it escapes 3. No for Escape There must be an escape from the defendant's land into the plaintiff. An injury inflicted by the accumulation of a hazardous substance on the land itself will not invoke liability under Rylands v Fletcher. Ponting v Noakes (1849) The claimant‟s horse died after it had reached over the defendant‟s fence and ate some leaves from a Yew tree. The defendant was not liable under Rylands v. Fletcher as the Yew tree was entirely in the confines of the defendant‟s land and there had therefore been no escape. Charles, J: "I do not see that they can be made responsible for the eating of these Yew leaves by an animal which, in order to reach them, had come upon his land. The hurt which the animal received was due to his wrongful intrusion. He had no right to be there and the owner therefore has no right to complain." 4. Non-natural use The defendant must be using his land in a way that is not ordinary www.someakenya.com Contact: 0707 737 890 Page 91 5. Remoteness of damage Liability in Rylands v Fletcher is subject to the rules on remoteness of damage. Remoteness of damage relates to the requirement that the damage must be of a foreseeable type. Remoteness of damage is often viewed as an additional mechanism of controlling tortious liability. Not every loss will be recoverable in tort law. Originally a defendant was liable for all losses which were a direct consequence of the defendant's breach of duty. This was largely considered unfair as a defendant could be liable for damage which was not foreseeable and therefore could not take steps to prevent it. Cambridge Water v Eastern Counties Leather plc (1994) The defendant owned a leather tanning business. Spillages of small quantities of solvents occurred over a long period of time which seeped through the floor of the building into the soil below. These solvents made their way to the borehole owned by the Claimant water company. The borehole was used for supplying water to local residents. The water was contaminated at a level beyond that which was considered safe and Cambridge Water had to cease using the borehole. Cambridge Water brought actions based on negligence, nuisance and the rule in Rylands v Fletcher Held: Eastern Counties Leather was not liable as the damage was too remote. It was not reasonably foreseeable that the spillages would result in the closing of the borehole. The foreseeability of the type of damage is a pre-requisite of liability in actions of nuisance and claims based on the rule in Rylands v Fletcher in the same way as it applies to claims based in negligence. The Egg shell skull rule A final aspect of remoteness of damage is the egg shell (or thin) skull rule. This means a defendant must take their victim as they find them, i.e. if the victim is particularly vulnerable or has a pre-existing condition resulting in them suffering greater injury than would be expected in an ordinary person, the defendant remains responsible for the full extent of the injury. Defenses in Ryland v Fletcher 1. Plaintiffs fault. Where the escape in question resulted from some fault on the part of the plaintiff this may be used as a defense. 2. Act of stranger - If the escape was caused by the act of a stranger over which the defendant has no control, the defendant will escape liability. Box v Jubb (1879) The defendant had a reservoir on their land. There was another reservoir situated at a higher level than the defendant’s. The owner of this other reservoir emptied it through a drain connected to the defendant’s reservoir causing the defendant’s reservoir to overflow and damage the claimant’s land. www.someakenya.com Contact: 0707 737 890 Page 92 The claimant brought an action under Rylands v. Fletcher contending that there was a non natural user of the land and that there had been an escape of water that caused damage. Held: The defendant was not liable for the damage as it was caused by the act of a third party over which the defendant had no control. If however, the act which caused the escape was committed by a person over whom the defendant may exercise some control the defendant may still be liable: 3. Statutory authority 4. Act of God - An act of God is an event which 'no human foresight can provide against, and of which human prudence is not bound to recognise the possibility' 5. Consent/benefit- If the claimant receives a benefit from the thing accumulated, they may be deemed to have consented to the accumulation: Peters v Prince of Wales Theatre (1943) The claimant leased a shop adjacent to a theatre from the defendant, the owner of the theatre. The claimant’s shop sustained flood damage when pipes from the theatre;’s sprinkler system burst due to icy weather conditions. The claimant brought an action based on liability under Rylands v. Fletcher Held: The defendant was not liable. The sprinkler system was equally for the benefit of the claimant and the claimant was deemed to have consented to the use of the sprinkler system since it had been installed prior to him obtaining the lease. NEGLIGENCE This is one of most important torts in law. In Blyth v. Birmingham Waterworks Co. (1856) it was defined as; The omission to do something which a reasonable man, guided upon those consideration which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and a reasonable man would not do. Elements of negligence 1. Legal duty of care 2. Breach of the legal duty of care 3. Loss or damage to the plaintiff These elements must be in place before the defendant can be liable www.someakenya.com Contact: 0707 737 890 Page 95 another ship. The fire spread to the claimants wharf and burnt it. The damage suffered was not reasonably foreseeable. Thin Skull Rule (take your victim as you find him) This rule means that the defendant must take his victim as he finds him. So, if the type damage is reasonably foreseeable, but it is much more serious because of something unusual about the claimant, such as a thin skull, then the defendant is liable. In this situation the damage is not too remote. This is shown in the case of Smith v Leech Brain and Co. (1962) where because of a defendants negligence, a man was burnt on the lip by molten metal. The burn caused him to develop cancer and his widow claimed against the defendant and because the burn was a foreseeable injury, he was also liable for the man’s death The burden of proof in negligence Generally the burden of proof in civil actions lies with the plaintiff. He has to prove that the defendant owe him a duty of care, that he breached it and this led into suffering. In certain cases however this isn’t so such as in the doctrine of Res ipsa loquitur. Res ipsa loquitur translate to let the facts speak for themselves. It is applicable in situations where something happens in a way it ought not to have. It is applicable in negligence if; 1. The thing that caused the injury was in control of the defendant or someone over whom the defendant exercises control 2. The event wouldn’t have happened without negligence 3. There is no way of explaining how it happened. DEFENCES TO NEGLIGENCE 1. Contributory negligence This defense is available in circumstances in which the plaintiff is also to blame for the loss or injury. The defendant must adduce evidence to establish the plaintiff’s contribution. The defendant must prove:- 1. That the plaintiff exposed himself to danger. 2. That the plaintiff was at fault or negligent. 3. That the plaintiff’s fault or negligence contributed to his suffering. Effect of contribution It reduces the amount of damages recoverable by the plaintiff by the extent of his contribution. However, children of tender years are not guilty of contribution. www.someakenya.com Contact: 0707 737 890 Page 96 2. Voluntary assumption of risk (volenti non fit injuria) This defense is available in circumstances where the plaintiff with full knowledge of the risk voluntarily agrees to undertake the same. The defendant must prove  That the plaintiff had actual knowledge of nature and extent of the risk  That the plaintiff agreed to incur the risk voluntarily In Dann v Hamilton the plaintiff had taken a ride on a vehicle driven by a drunken person and his was aware of this fact and as a consequence an accident occurred. The defendant’s plea of volenti failed since the plaintiff had not consented to incur the risk. However in Tugwell v Bunnet where the defendant‟s vehicle expressly stated that passengers rode at their own risk and the driver at the material time was drunk to the plaintiff’s knowledge but took a ride in the motor vehicle and was injured, the defendant’s defense of volenti succeeded since the plaintiff appreciated the risk and agreed to incur the same. 3. Statutory authority If the conduct complained of by the plaintiff is authorized by statute and the defendant has acted in accordance with the provision of the statute the defendant has a complete defense to the plaintiff’s action. However whether or not the defense is complete depends on the interpretation of the statute. NUISANCE This tort is committed whenever a person is wrongfully disturbed in the use and enjoyment of his land. Generally, it arises from the duties owed by neighbouring occupiers of land: no one should use in property in a way which is likely to affect his neighbour’s use of his own land. Thus, if A and B are neighbours, and A owns plot X while B owns plot Y, A may use plot X in any way he chooses but he must not in doing so affect B’s of plot Y, or else he will be liable in nuisance. Although the tort of nuisance is usually committed only where the plaintiff and defendant are owners or occupiers of land, in certain circumstances the tort may be committed in places like a highway or even a river. There are two types of nuisance: private nuisance and public nuisance. Private Nuisance A private nuisance is committed where a person’s private rights in his land are wrongfully disturbed, whether physically or by allowing noxious things to escape out of his land. Thus, it is a nuisance to obstruct an easement or private rights of way; or to allow a weak structure to hang precariously above the plaintiff’s land, thereby creating a potential source of danger to the plaintiff; or to allow smoke, noise, gas, fumes e.t.c. to escape onto the plaintiff’s land thereby inconveniencing him e.t.c. Hollywood Silver Foxes v. Emmett, (1936) The plaintiff was a breeder of silver foxes, which were very sensitive to any disturbance during breeding seasons. The defendant was developing the neighbouring land as a housing estate and www.someakenya.com Contact: 0707 737 890 Page 97 thought that the plaintiff’s business might discourage his customers. He instructed his son to fire a gun near the fox cages. The son did so and after four days the plaintiff sued. Held: The act of the defendant through his son amounted to a nuisance. Public Nuisance: Public nuisance is also known as common nuisance. It affects the comfort and convenience of a class of persons but not necessarily every member of the public. Thus the obstruction of a highway is a public nuisance, and also a music festival accompanied by large scale noise. It is also a public nuisance to do any act which is a source of danger to the public e.g. releasing a large quantity of petrol onto the highway. In all these cases, it is not the private rights of an individual of the community around or the public at large. From what is stated above, it is clear that it would not be reasonable to allow an individual to bring an action to stop the nuisance. Indeed, a public nuisance is generally a criminal offence and only the Attorney General may bring an action against the wrongdoer. However, in exceptional the person creating such an act of nuisance, if he can prove that he has suffered some special damage over and above that suffered by the general public. 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 Rylands V. Fletcher where, as we saw above, water escaped only on one occasion causing damage to the plaintiff’s mine. The Plaintiff in Nuisance Since private nuisance generally covers only damage to property to its enjoyment, the plaintiff in an action brought to remedy a nuisance must show thathe has title to, or at least some interest in