The kenyan legal issue 1

Breach of promise to Marry: It’s Legality
November 2013 Issue #1

Also inside:

Why Raila
and Kibaki
Government
was
Successful
Judiciary
watch:

Word from
the Chief
Justice
main feature:

DO WOMEN HAVE A PLACE IN
KENYA’S JUDICIARY?

generation of legal minds, and sometimes it’s not
until we compare our current achievements with
how things were in the past that we fully
appreciate just how much progress has been
made, and progress, believe me, is what KENYAN
LEGAL is here to make.

T

here’s all kinds of Brilliance in the
world; some will give you trophies,
some will fill your bank accounts but
there’s a bigger kind of brilliance, that
which is nurtured and practiced constantly to
near perfection, and makes a difference not only
to oneself but to the world abode. By what I mean
not only individually but also in terms of the
whole legal industry as a whole, the Kenyan legal
system is at its prime and the best way to keep
this going is to involve in particular the coming

I also wish to be particular in appreciating
the committed individuals that contributed
towards this publication; it’s in not question that
this is your success, and for those who never got
the chance, here it is! Am really thankful, Keep up
you great work! As once stated: “The size of your
success is measured by the strength of your
desire; the size of your dream; and how you
handle disappointment along the way” this is the
dream and we’re headed towards Success.
That said, as well as with great happiness
and humility, it’s also with a sense of pride that I
welcome you to the newest success in town, the
very first publication of “the KENYAN LEGAL”
magazine.

REGARDS,

Michael
Michael Opondo O.
Managing Editor,
KENYAN LEGAL

©Kenyan Legal 2013

Page 2

CONTRIBUTORS
Sheila Mokaya, K.U.S.O.L
Otieno Arnold O., K.U.S.O.L
Caren Kerubo, K.U.S.O.L
Victor Kiamba, Advocate of the High Court
Gabriel Pelu, JKUAT
Kenneth Kimathi, K.U.S.O.L
Sylvia Anne A., U.o.N
Henry Omukubi, K.U.S.O.L
Nelson Otieno, K.U.S.O.L
Michael Opondo O., K.U.S.O.L

Cover photo by:
Patricia Ngare,
Model/Law Student,
trishangare@yahoo.com
Kenyatta University.

Whilst every effort has been made to ensure the accuracy of the information in this magazine, the
authors, publisher and editor accepts no responsibility for any loss, financial or otherwise by any
person using this publication
Copyright © 2013 by Kenyan Legal
All rights reserved. No part of this publication may be reproduced, distributed, or transmitted in
any form or by any means, including photocopying, recording, or other electronic or mechanical
methods, without the prior written permission of the publisher, except in the case of brief
quotations embodied in critical reviews and certain other noncommercial uses permitted by
copyright law. For permission requests, write to the publisher, addressed “Attention: Permissions
Coordinator,” at the address kenyanlegal@gmail.com
Copyright protected by:

Creative Commons 2013

©Kenyan Legal 2013

Page 3

Inside this issue
Case Of The Month............................................................................................................5
Third Party Rights In Marriage?.........................................................................................7
The Rule Of Law In Kenya ..................................................................................................9
The Law On Third Party Proceedings...............................................................................11
Sausage Machines? .........................................................................................................14
Criminal Responsibility For Omissions: Negligence In Scope...........................................16
Do Women Really Have A Place In Kenya’s Judiciary? ....................................................19
Why Raila And Kibaki Government Was Successful ........................................................21
Where Is Kenya Headed To .............................................................................................23
Legality Of Breach Of Promise To Marry .........................................................................24
Carla’s Diaries..................................................................................................................26
The New Constitution And The Youths ...........................................................................27
Legal Positivism: Is It Or Not In Kenya? ...........................................................................29
Tyranny Of The Urgent? ..................................................................................................32
The Law Of Contract: An Introduction.............................................................................33
Criminal Justice And Human Rights: Death Penalty ........................................................36
Judiciary Watch ...............................................................................................................38
Our New Brand Identity – A New Promise To The Mwananchi ........................38
We Don’t Take Public Support For The Judiciary For Granted..........................40

©Kenyan Legal 2013

Page 4

Case of the month
REPUBLIC OF KENZA
IN THE COURT OF APPEAL OF KENZA
AT NAIRI (NAIRI LAW COURTS)
CONSTITUTIONAL APPLICATION No. 20 OF 2012
BETWEEN
MUNGA……………………………….APPLICANT
AND
THE HON. ATTORNEY GENERAL………RESPONDENT
AND
IN THE MATTER OF ARTICLES 10, 20, 22, 29(d), 39, 50, 258(l) and 259 of the
CONSTITUTION OF KENZA
The appellant Joel Munga was 20 years ago arrested, processed, charged and convicted of
murder contrary to section 203 of the penal code, Cap. 63 of the Laws of Kenza. He was
sentenced to death pursuant to section 204 of the said legislation. After ten years of service of
his sentence was mutated to life imprisonment through a presidential decree.
After 19 years of service, new and compelling evidence exonerating the appellant was
discovered. The accused petitioned the court for his release. The prosecution did not raise any
objections against the petition. The Director of Public prosecution observed that “a great
injustice had occurred”. The appellant is seeking damages to the tune of Kshs. 76 million, for
“a lost life.”
The High Court rejected the argument that his rights had been violated arguing that there
was no evidence to the effect that the trial was anything but fair and that at the time of his
conviction, the prosecution had diligently demonstrated its case beyond any reasonable
doubt, solely relying on the evidence available.
He appeals to the Court of Appeal inter alia on the following grounds:1. THAT the High Court erred in Law in failing to provide remedy for the loss suffered
during detention.
2. THAT the Court of Appeal declares that monetary compensation in addition to any other
remedies be granted to the appellant.
(The Legal system of Kenza is similar if not same to that of Kenya; this includes the
legislation and rules of procedures before the courts. Also, applicable case law in the Kenyan
Legal system carries the same weight in the Kenza legal system.)

©Kenyan Legal 2013

Page 5

CONSIDER:
-

Maxims of Equity.
D.P.P’s Statement.
Constitutional provisions.
The Evidence Act.

Dear Reader, this column calls for and will appreciate your feedback and thoughts on
the issue(s) raised for discussion. The comments, answers and thoughts will be published in
the next issue of the magazine kindly send them to kenyanlegal@gmail.com or visit

www.kenyanlegal.blogspot.com
You are also invited to send your case for discussion before 19th November 2013 for
discussion in this forum.

www.facebook.com/kenyanlegal

www.linkedin.com/kenyanlegal

©Kenyan Legal 2013

Page 6

LEGAL DISCOURSE
With Michael Opondo O.
“The power of the Lawyer is in the uncertainty of the Law”

THIRD PARTY RIGHTS IN MARRIAGE?
To commence with; the first blush of this legal discourse is there’s absolutely no Law in Kenya
that prohibits non-adults (child) of age under 18 from entering into a marital union. As embodied in the
spirit of Article 45(1) of the Kenyan constitution, “The family is the natural and fundamental unit of
society and the necessary basis of social order, and shall enjoy the recognition and protection of the
State.” And further in Article 45(2), “Every adult has the right to marry a person of the opposite sex,
based on the free consent of the parties”, emphasis on the word “EVERY; the word “EVERY” leaves a
room for exceptions not unless the word “ONLY adults can Marry” was instead used which on the
otherwise leaves absolutely no room for exceptions, as it is, “every person who is an adult can marry(or
get married)”, but not “only adults can get married”. So far here, it’s no brainer to understand that the
parties to a matrimonial union must not be adults, and “adult”, just so we are clear, is but a concept and
thus relative from one person to the next, allow me to demonstrate.
As regards to law of Succession, “Child” is a person born of another, that is, 80 year old Michael
Oduor born of Opondo is but a “Child” to the later mentioned and thus in reverse, a six day old Michael
Oduor is “Adult” enough to be included in Opondo’s will and consequently inherit, as clear as your
understanding. Moving on to the Laws of the Land that form basis in matrimonial unions, an adult is a
person who has attained a majority age of 18 years, as per the constitution, the Sexual offences Act and
the Marriage Act. The rationale behind capacity of 18 years of age is to ensure the parties are able to
make rational decisions and handle responsibility; a view expressed by Pearce J. in Pugh vs. Pugh (1951):
“According to modern thought, it is considered socially wrong that a person of age, at which
we now believe them to be immature and provide for their education, should have the stresses,
responsibilities and sexual freedom of marriage and the physical strain of Child birth”
Marriage is a contract under statutory Law between two equal parties of Man and Woman, as
husband and wife, in exclusion of all others (Hyde vs. Hyde); and consequently, rules of contract apply
from the onset. There’s Offer and Acceptance, that is, the initial seduction and courtship period
stretching to Engagement-one offered on his knees and the other accepted the ring-, there’s
Consideration, that is, the duties and obligations whilst in marriage; consortium, maintenance and the
matrimonial confidence in spouses-“dirty linen” should remain in the laundry basket-, there’s Capacity to
the contract that is the majority age as aforementioned and if things don’t work out, there’s termination
in Divorce.

©Kenyan Legal 2013

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Privity of this Contract has however to be questioned as per section 19(1) of the Marriage Act
which purports that for marriages of parties between the ages of 16 to 21 years old require consent of
parent or guardian. So question is, from the onset that the Parent/guardian is a third party to the
matrimonial contract, i.e. in willfully giving consent of which otherwise no contract would be formed in
the first place, does this mean they remain party to the contract forever and therefore has to be
constantly consulted until death do “us” part or it’s termination? Or does the third party lose the position
soon as the two married attain majority age?
So here’s the Legal Discourse, what’s your course of thought?

©Kenyan Legal 2013

Page 8

THE RULE OF LAW IN KENYA

By Henry Omukubi
he rule of Law means that
government and it’s officials,
together with private citizens must
act under the law. The rationale
behind it is the control of the exercise of public
power is by the state by ensuring that it is
exercised within legal limits. The concept of rule
of law is recognized in the constitution of Kenya
2010 under article 10(2b) which lists the national
values and principles of governance as patriotism,
national unity, sharing and devolution of power,
the rule of law, democracy and participation of
the people.
The rule of law is both a legal and a
procedural mechanism and as such it has its
elements which ensure its effectiveness. First and
foremost, it provides for equality before the law
as A.V. Dicey stated:
“With us no man is above the Law, but that
here every man, whatever be his rank or
condition, is subject to the ordinary law…law of
the realm”
Also provided for by article 27 of our
constitution that:
“Every person is equal before the law and
has the right to equal protection and equal
benefit of the Law.”

T

©Kenyan Legal 2013

Secondly, the rule of Law requires no man
punished or to be lawfully made to suffer in
bodily or goods except for a distinct breach of the
law established in the ordinary legal manner
before the ordinary courts of the land.
Punishment can only be imposed on someone
who has violated the law. Article 50 (2n) of the
constitution provides:
“Every accused person has the right to a fair
trial which includes the right not to be convicted
for an act or omission that at the time it was
committed or omitted was not an offence in
Kenya or a crime under international Law.”
‘Open Laws’ is another element of the rule of
Law. This means that the Laws should be open so
that individuals are able to access them. They
should not be secret or difficult to locate as this
would not enable the individual be guided by
Law. This is enshrined in the Constitution where it
is provided that the state shall publish and
publicize any important information affecting the
nation [article 35(3)]
The rule of Law further requires that the
courts be accessible to the citizens. This is to
enable the citizens to access justice easily
without any delays evident by virtue of article 48
which states that:
“The state shall ensure access to justice for
all persons and if any fee is required, it shall be
reasonable and shall not impede access to
justice”
Judicial independence is yet another element
of the Rule of Law. This requires that disputes as
to the legality of acts of government are to be
decided by judges who are independent of the
executive. It is provided under article 160(1) that
in the exercise of judicial authority, the judiciary,
as constituted by article 161 shall be subject only
to the Constitution and the Law, and shall not be

Page 9

subject to the control or direction of any person
or authority, and in article 160(5) that a member
of the Judiciary is not liable in any action or suit in
respect of anything done or omitted to be done
in good faith in the lawful performance of a
judicial function.
The rule of Law also guarantees the
observance of the principles of natural justice
which comprises of the right to a fair hearing and
the rule against bias. This is also clearly enshrined
in the Constitution of Kenya under article 50(1)
which provides that every person has the right to

have any dispute that can be resolved by the
application of Law decided in a fair and public
hearing before a court, or, if appropriate, another
independent and impartial tribunal or body.

To Comment follow link:

omukubihenry@gmail.com
Second year, school of Law,
Kenyatta University

©Kenyan Legal 2013

Page 10

THE LAW ON THIRD PARTY
PROCEEDINGS
question or issue arising between the
Plaintiff and The Defendant and should
be determined as between the Plaintiff
and Defendant and Third Party or
between either of them.
Proceedings against a Third Party
These are provided for under Order 1 Rules
15 to 23.

By Victor Kiamba

I

n any given civil proceedings, there are
two parties involved; the plaintiff who
is also the claimant and the defendant.
We may have several litigants in either
part whether several plaintiffs or several
defendants.
The Third Party
In other given circumstances, the Defendant
may wish to claim against any other person who
is not already a party to the suit against the
Defendant by the Plaintiff where the said person
is said to have been involved in the said Cause of
Action and is intricately linked to the Plaintiffs
claim. This person is the Third Party.
Order 1 Rule 15 (1) of the Civil Procedure
Rules, 2010, a Defendant may claim against any
other person not already party to the suit where;
1. He is entitled to Contribution or
Indemnity
2. He is entitled to any relief or remedy
relating to or connected with the
original subject matter of the suit and
substantially the same as some relief or
remedy claimed by the Plaintiff.
3. Any question arising or issue related to
or connected with the said subject
matter
is substantially the same

1. The Third Party Notice
This is the Defendants claim against the
Third Party and is served upon the Third
Party after leave of the court to issue
the notice is granted. It is addressed to
the Third Party.
The Third Party Notice adopts the original
case citation and the Third Party is cited as a
party to the suit below the Defendant. It states
the nature of the claim. That is, the Plaintiffs
claim against the Defendant as well as the
Defendant’s claim against the Third Party. The
Notice also states the date that leave to issue the
Notice was granted by the court and the time
within which the Third Party must enter
appearance.
2. Issuing of a Third Party Notice
Within 14 days after close of
pleadings, any Defendant may apply for
leave of the court to issue a Third Party
Notice. This Application is by way of an
Ex Parte Chamber Summons which is
supported by an Affidavit. A draft Third
Party Notice is also annexed to the
Supporting Affidavit.
The Defendant may apply for an
enlargement of time within which to
issue a Third Party Notice if the 14 days

within which he must apply for leave
expire. This Application is by way of a
Notice of Motion.
Leave to issue a Third Party Notice
for service on the Government is only
granted when the court is satisfied that
the Government is in possession of all
such information as it reasonably
requires as to the circumstances in
which it is alleged that the liability of
the Government has arisen and as to
the departments and officers of the
Government concerned.
Once leave to issue a Third Party
Notice is granted, the Third Party Notice
is then filed and served upon the Third
Party in accordance to the rules under
Order 5 on Service of Sermons. An
Affidavit of Service must be filed with
the court as evidence of service upon
the Third Party.
3. Appearance of Third Party and Defence
When a Third Party has been served
with the Third Party Notice, The Third
Party shall file his appearance within
the time prescribed in the Third Party
Notice. As noted earlier, a Third Party
Notice must state the time within which
the Third Party must enter appearance.
This is unless the court orders
otherwise.
Appearance is by a Memorandum
of Appearance which shall state the
address of service of the Third Party
being either his residence or place of
business and his postal address if he is
appearing in person or his Advocates
address of service being the place of
business within Kenya and their postal
address.
The
Memorandum
of
Appearance is the stamped and filed in

©Kenyan Legal 2013

the court registry and a copy served
upon the Plaintiff and the Defendant.
4. Default of Appearance by Third Party
Under Order 1 Rule 17, in the event
that a Third Party desires to dispute the
Plaintiff’s claim as against the
Defendant on whose behalf the notice
has been given, or his own liability to
the Defendant, the Third Party must
enter an appearance in the suit on or
before the day specified in the notice;
and in default of his so doing he shall be
deemed to admit the validity of the
decree obtained by such Defendant and
his own liability to contribute or
indemnify, as the case may be, to the
extent claimed by the Third Party
Notice.
In the case of Joram Were &
Another –vs- Transpares (k) LTD & 3
Others [2005] eKLR , Warsame J noted
that since the Third Parties therein
failed to contest an order enjoining
them as Third Parties their Application
seeking to dismiss the suit against them
was misconceived.
Where a Third Party is in default of
appearance in the suit and the suit is
tried and judgment entered in favour of
the Plaintiff against the Defendant, the
courts may either at the trial or after
the trial enter such judgment against
the Third Party. This is after giving
notice to the Third Party of the
intended Judgment. Execution of such
Judgment shall only be with the leave of
the court and only if the Defendant has
satisfied the Decree against him.
Order 17 does not apply on Default
of Appearance by the Government as
Third Party unless the court so orders

Page 12

upon an application by the Defendant
which is by Chamber Summons.
5. Third Party Directions
After appearance of the Third Party,
the Defendant must apply to the court
for directions by way of chamber
summons. If the court is satisfied that
there is a proper question to be tried as
to the liability of the Third Party, it may
order that such question be tried during
the trial or after the trial. The court may
also direct that the Judgment entered
against the Defendant in favour of the
Plaintiff be entered against the Third
Party in favour of the Defendant.
The court will also determine the
question of costs between the Third
arty and other parties to the suit and
may make orders to costs as the justice
of the case may require.

lbkiamba@gmail.com
LL.B Hons. (CUEA)
Post Graduate Dip. In Law (KSL)
Advocate of the High Court of Kenya

©Kenyan Legal 2013

Page 13

OPEN SPEAK
With Nelson Otieno

SAUSAGE MACHINES?

D

octor Stockman is pitted in the book of “An Enemy of the People” as an extremist but of
major concern today is his quote that a party is like a sausage machine that smashes all
sorts of fatheads and blockheads and the rest is a long story for another day.

Kenya before 1992 is not the Kenya we see and live in today. Political appointments were made in the
roadsides and ones destiny and achievement of power was determined by his allegiance to KANU- the
then ‘chama cha baba na mama”. These times were severe; no one would stay in the streets for a whole
day in the name of mass action without taking a bite of his own medicine. Furthermore it was near to
impossibility as allegiance to Kanu simply meant belief in the dogmatic ideas based on the party leaders
personal interests thanks to Raila’s newly launched book “Flames Of Freedom” which explains more of
the traumatizing experiences .
These days we enjoy political rights especially those of multi-partism. Our heroes fought for the latter
but what must disturb a patriotic mind is whether the set objectives of the church clerics, politicians,
some now dead, have been achieved .Political parties have come from avenues for fighting human for
rights to ladders for selfishly rising to power. Take for instance, upon the death of Saitoti, Gideon
Konchela took over the PNU leadership and within a span of one day made coalition agreement with TNA
shortly before making another with URP party.
Our political leaders do not take it upon themselves to show respect to our heroes since they are not
led by the party manifestos but by their personal interests. When an m.p enjoys good meals at the ICC
restaurants, accompanying an ICC suspect, devil knows who, hiding under the umbrella of ‘solidarity
while the parliamentary proceedings are in session , and planning to jet back to the country to introduce
a bill in the parliament to remove himself from the list of public officers not forgetting the VAT bill that he
supported before taking the expensive flight to the Dutch court , something must be wrong politically and
I have nothing to lose because am losing anyway to the infamous tyranny of numbers.
One is left to wonder how political polygamy has taken root in our country. To the MPs, party hopping
is a custom and Kenyans vote for parties rather than individuals irrespective of how transformative their
ideas or plans may be. When politicians were buying certificates from smaller parties like Muungano party
in the eve of party nominations it just shows how the Kenyan definition of a party conforms to Henrick
Ibsen’s.
For a politician to successfully vie for a position in Kenya, he must pledge his loyalty to the political
kingpin. The effect of this is twofold, first it necessitates that the kingpins to form their political parties
that consequently become tribal .The political system in Kenya is thus destabilized due to the tribal
divisions. This explains why however transformative someone’s plans may be, he may not succeed in any

political ambition outside ODM and TNA in Siaya and Kiambu counties respectively. The multi party’s
fighters did not however envisage such sharp tribal divisions. This political idea has led to certain tribal
sayings such as mundu wa nyumba, a kikuyu saying meaning a man of our own. It further reflects the
attitude that different tribes has toward any person trying to achieve his political ambitions who hails
from a rival or a different tribe.
Secondly, any person hailing from any minor tribe in Kenya will never realize his political dreams. Our
politicians should be woken up to be rational, cease party sycophancy and serve the people of Kenya. It is
only through this that we are able to achieve the envisaged political freedom to all Kenyans.

otienonelson18@yahoo.com
Second year, School of Law,
Kenyatta University

©Kenyan Legal 2013

Page 15

CRIMINAL RESPONSIBILITY FOR
OMISSIONS: NEGLIGENCE IN SCOPE
By Sylvia Anne A.

I

n common language, “negligence” would
simply refer to carelessness or nonobervantness to facts/issues at hand.
Well, this isn’t as much far from what Law
considers as “Negligence”; as in Law, Negligence
is a breach of a duty caused by the omission to do
something which a reasonable person, guided by
those considerations which ordinarily regulate
human conduct, would have known to cause
harm. In essence you are negligent if you
unintentionally cause injury to someone in a
situation where you should have known your
action could cause harm. This far it sounds much
like “Accident”, I mean, a person knows
reasonably that the harm could occur but still it
happened, can’t that person plead that it was all
by accident? This is where the doctrine of Res
Ipsa Loquitur comes in, that is, Accident talks or
thing speaks for itself.
Res Ipsa Loquitur
It is sufficient for the plaintiff to prove the
accident and nothing more as there are many
cases to that effect; the landmark case to its
explanation being in Scott vs. London and St.
Katherine Docks Co. [1865] 3H&C 596 by the
Court of Exchequer, “where the thing is shown
to be under the management of the defendant
or his servants, and the accident is such as in the
ordinary course of things does not happen, it
affords reasonable evidence in the absence of
explanation by the defendants that the accident
arose from want of care.” This doctrine of res
Ipsa Loquitur only shifts the onus/burden of
proof in that a prima facie case is assumed to be

©Kenyan Legal 2013

made out, throwing on the defendant the task of
proving he was not negligent. However, essential
requisites for the application of this doctrine are:
i) The thing which causes the harm
must be under the defendant’s
control.
ii) The defendant offers no explanation;
and
iii) While under his control, an accident
happens, which would not in the
ordinary course of things happen,
without negligence?
Does this then mean that any negligent
act or omission a person does is unlawful?
Ingredients of negligence.
It’s not just unlawful every negligent omission
or act a person does is; three requisites must
prevail for liability to arise:
i) That the defendant owed the plaintiff
a duty of care. A person can be as
negligent as he pleases towards the
whole world if such person owes no
duty of care to it. A duty of care is the
obligation to avoid careless action
that could cause harm to one or
more persons. In Donogue vs.
Stevenson[1932],
Lord
Atkin
redefined the concept of Duty of
care, he observed, “You must take
reasonable care to avoid such acts or
omissions which you can reasonably
see would be likely to injure your
neighbor. Who the n in Law is your
neighbor? Persons who are so
closely and directly affected by my
act that I ought to have them in my
contemplation as being affected so
when am directing my mind to the

Page 16

acts or omissions in question,” This is
the Neighbor Principle.
ii) That the defendant failed to provide
proper standard of care that a
reasonable person would have
provided in a similar situation. The
standard of care is a way of
measuring how much care a person
owes another. It is the conduct of a
reasonable man in a particular
situation. The degree of care which a
person is required to use in a
particular situation varies/depends
on the obviousness of the risk; if the
danger of causing injury to the
person/property of another is great,
then great care is necessary, and vice
versa.
iii) The third requisite is, that the action
of the defendant was the cause of
injury to the plaintiff. The
determining cause often done by
applying the “But for” test, that is, an
injury would not have happened “but
for” the defendant’s action. In Cork
vs. Kirby, Lord Denning said, “if the
damage would not have happened
but for a particular fault, then that
fault is the cause of the damage. If it
would have happened, just the same
fault or not fault, then the fault is
not the cause of the damage.”
Quite clear there but a question arises
why then is it a crime for being negligent as
not stopping a crime in action you are
capable of stopping but owe no duty of care
to stop?-This is the general feeling of the
Kenyan populace.
Criminal responsibility and duty of care
The Kenya Penal Code criminalizes
omission on part of the respondent for not
stopping a crime in action he would
otherwise been able to stop. This brings back
the element, Duty of care. The Law on duty of
care is non-static in the sense that something
was not a privilege yesterday and is today,

©Kenyan Legal 2013

however, the courts have previously
considered duty that as laid down by
precedent by now; this is to widen the area
of application for better protection of public
interest. Laid down in the case of Caparo vs.
Dickman [1990], the three stage test on
establishing duty of care is:
1. Was the harm or loss caused
reasonably foreseeable?
2. Sufficient “Proximity” between the
parties. The act complained of must
directly affect whom the defendant
would know would be directly
affected by his careless act. Proximity
does
not
refer
to
geographical/physical closeness but
is a legal term; legal closeness.
Sometimes it is used in a different
sense as indicating not the
relationship between the parties but
the relationship between the
defendant and the source of harm, as
illustrated in the case of Hill vs. Chief
Constable West Yorkshire.
3. The situation must be one which the
court considers it fair, just and
reasonable. Even if there is the
requisite degree of proximity, like for
instance
a
sufficiently
close
relationship of love and affection, a
duty may still be denied if in the
court’s view the imposition of liability
would be unfair, unjust and
unreasonable.
In
conclusion
therefore, dear reader, next time you
are witnessing a crime in action being
committed of which reasonably you
are able to stop, three things, one, do
you have any type of relationship,
professional, fiduciary or any other
control over the person causing the
harm? {proximity} ; two, would it be
reasonable, fair and just for you to
stop the crime considering the
circumstances?-don’t go to a gun
fight with a knife-, and three, was it
reasonably foreseeable on your part

Page 17

that such crime action could have
happened yet you took no actions to
stop it?
If not, you are free to walk away-we have
the police, don’t we?
Have a crime free Endeavour

kenyanlegal@gmail.com
Third Year, School of Law,
University of Nairobi

To comment follow link:

©Kenyan Legal 2013

Page 18

POWER PLAY
Power, Politics &Governance

With Otieno Arnold Odiembo

In this Issue:
 DO WOMEN REALLY HAVE A PLACE IN KENYA’S JUDICIARY?
 WHY RAILA AND KIBAKI GOVERNMENT WAS SUCCESSFUL
 WHERE IS KENYA HEADED TO?
Second Year; School of Law,
Kenyatta University,
www.otienoarnold.wordpress.com

DO WOMEN REALLY HAVE A PLACE
IN KENYA’S JUDICIARY?
hat is it with women who tend to
harsh way that they should rather be keen in
exemplify a sign of profound
their common knowledge and not deem as
strength or rather power in the
minute things that may seem simple and of no
judiciary? From the abintio of this
great importance.
entire Shollei saga I thought to
When it came to the one great Willy
myself and posed this
Mutunga,
he
made
a
query to myself, “could
judgement on the March 4th
this
be
another
elections without validated
scenario like the one
arguments in making his
Nancy Barasa faced?
decisions based on a bogus
From this it is lucid or
claim of rather looking at the
rather elucidate that
time
wasted
than
the feminine gender is
presentations by the advocates
always at risk in the
who handled the cases. Any
judiciary. Nancy Baraza
reasonable prudent individual
was
almost
being
who watched the proceedings
crucified when she
saw that George Oraro and
merely pointed a gun at
Kethi Kilonzo rather presented
the
face
of the
a strong case and if not all but
egocentric Kerubo, To
one of their prayers was to be
me all she did was just
allowed. But what happened?
try to educate an
All of them were thrown out.
Women in the Judiciary
ignorant Kenyan in a
This raised questions by a

W

number of questions on the reliability of the
judiciary in handling matters. This was not
questioned by the judicial service commission.
Let me leave that aside as I would be termed
political but trust me that if you are not a
vacuous vessel of ignorance and a
manifestation of emptiness you will agree with
me without a qualm. Recently, Lawyer
Ahmednassir Abdulahi was faced with
allegations against him being in participation
with the influence of the high court in the
decision where National Cereals and Produce
Board (NCPB) was ordered to pay Sh564 million
to Erad Suppliers and Contractors Company
over supply of maize . On the other hand one
chief registrar of the judiciary Shollei was
suspended pending investigations against her
pertaining corruption. If this is so the question
to ask oneself is does gender equality really
apply in the judiciary? And if the judiciary has
the role to interpret the law as is its role where
are we headed if that body we all look at to be
the abintio of ensuring equality has not
exemplified it?

I still feel and strongly believe that if Shollei is
suspended from office then one Ahmednassir
Abdulahi should be suspended leave alone be in
the committee that is yet to determine the fate
of one Mrs. Shollei.
I strongly believe that women have played quiet
a great role in ensuring the betterment of the
judiciary and legal field at large and thus as
most of us are fighting for the protection of
Raila who is a kernel figure in this great nation
so should we also ensure
the protection of the women in the judiciary as
they are almost becoming the ‘white rhino’.
Look at personalities like Martha Karua, the
Hon. Lady Justice Kalpana Hasmukhrai Rawal
susanna, the Hon. Lady justice Mary A. Ang’awa
amongst others. If these individuals are not
protected then trust me we are headed for
somewhere
dark
and
a
Rubicon.
PROTECT WOMEN IN THE JUDICIARY IS MY PLEA
TO ALL.
To Comment Follow Link:

Picture courtesy of Caren Kerubo

©Kenyan Legal 2013

Page 20

WHY RAILA AND KIBAKI
GOVERNMENT WAS SUCCESSFUL

“

UNITED WE STAND DIVIDED WE FALL” is
a saying that has always raised qualms
through my head rather than my
thoughts but truly I came to agree with it
when I started analyzing things more critically.
I came to realize a government manned by two
individuals at almost the same level of power
is better than one handled by one individual.
Some may question the trueness of my adage
but trust me it is backed by more than just a
minute factual claim. During the tenure of
Kibaki and Raila in the coalition government, I
feel they ensured the best
of this country both in the
economic sense and also in
the
international
ties
between Kenya and other
countries
both
locally
within the continental
context
and
the
international view. When in
power it was lucid that Raila
ensured the connection of
Kenya with the western
world due to his known
good relation in diplomacy.
Raila ensured that we as a third world state
received assistance both financially and any
other way adequate
to ensure out sustainability and ensconce as a
country. With this, though we lived with debts
,but never was there an instance when the
government was so broke to increase leave
alone impose VAT tax to basic commodities.
The aids and grants offered by the western
countries really anchored our economy and well
being as a state.

establishment of infrastructures like roads,
airlines bridges inter alia. This ensured the
beauty of our state and also the accessibility of
it thus ensuring and promoting trade and also
any other income promoting project.
The aforementioned luminously implore the
benefits we as a country ensured from the
Kibaki- Raila tenure as heads of states. Some
may intimate my adage as being in favor or
political based but trust me this is the bare
bitter truth which can either be taken at its
positive edge or rather
criticized to its fullest.

“In comparison to
the current government
we only benefit from
one angle which is
rather risky to us as a
nation than to our
benefit”

Auxiliary, it was also known that Kibaki had a
good rapport with the Eastern nations which
are known for their kernelty in the business
sector and development of infrastructure. This
in itself ensured that we got favor in

©Kenyan Legal 2013

In comparison to the
current government we
only benefit from one angle
which is rather risky to us as
a nation than to our
benefit. The normal human
being is made to always go
for what will ensure his or
her reverting state than be
a problem of cause
problems. The current
government from my point of view is not in the
best of terms with the western nations due to
the current case status of the president with
the ICC. Trust me this has led to us missing or
rather deprived the so called western assistance
which plays a big role in ensuring the well being
of us. Hon Uhuru Kenyatta clearly focuses on
one side of the coin which in this context is the
eastern nations. The eastern nations inclusive of
china clearly focus on business deals whenever
they construct any beneficial infrastructure in
this country. When china was up to building the
Thika Super highway, they made a deal that
ensured that this project would be initiated by
the Chinese and also that the Chinese engineers
were to undertake the project to its whole.
When they cleared the construction, it was so

Page 21

wow that it blinded the Kenyan people and they
did not focus on the unemployment we faced
during its construction. Few years after its
completion we now remain with the terror of
ensuring that the road is maintained and also
paying yearly fees to the Chinese government
whereas as a country we cannot even pay our
teachers adequately. This is lucidly a loss to us
as a nation. Normally, I have always been a
proud guy who would at no point ask for money
from a lady due to the mindset I have always
had that it is to be vice-verse . A day came when
I had only two options ask my girlfriend for
economic assistance or rather face war by some
thugs. This but just an example to illustrate that
we have to at times undertake some decisions

©Kenyan Legal 2013

against our pride and also accept our
weaknesses as a nation.
I believe that it is time we accept that as a
nation we are weak and clearly need help from
all angles. Hon Uhuru Kenyatta should work out
a way to ensure that he is not only close to the
eastern nation but also the western nation. We
must be proud as a nation yes but when one is
weak he/she needs to put away any pride
within to ensure we resort our problems before
regaining the normal pride as a nation.

Page 22

WHERE IS KENYA HEADED TO

F

rom the first time I heard about the
burning of JKIA, it ran through my
head that this was the beginning of
Kenya’s problems. JKIA to the best of
my knowledge has one of the most titled security
detail in Kenya. If this is the case and still was
vulnerable to it being burnt and up to now we the
Kenya people have not gotten lucid explanation
of what exactly happened and caused the
situation as it occurred this then is like to state
that the security situation in Kenya is at its worst.
Some may not understand the great loss this
situation brought to the country apart from the
distraction of property. But trust me there is
much to that. As it is self explanatory that
tourism is one of the most valuable source of
income to this superlative state. As a result of the
fire at JKIA questions were posed to the heads of
tourists concerning the security status as it was in
our heads. This for sure reduced the number of
incoming tourists in the country. LOSS TO US
In the last twenty four or so hours, the
instances that have covered the news and have
brought melancholic feelings to most Kenyans
clearly back the statement ‘We are headed
nowhere closet vision 2030 if we cannot stiffen
our security.’ At times I always think of what
Nancy Baraza says when she watches the TV and
sees the security issues we face as a country. I
think she rejoices saying ‘Now they thought
frisking everyone would help maintain security,
and it’s getting worse’.
The scenario at west-gate lucidly showed our
vision for vision 2030 in context of movie acting.
The incident yesterday is one that I have only
seen in movies. Where on earth have terrorists
learnt the art of holding hostages? And how did
they plan all this and subdued the west-gate mall
if there were security officers at the entrance

©Kenyan Legal 2013

who are believed to frisk people at their entrance
to the mall? What really do the security
personnel do in the name of frisking individuals in
the entrance to such malls and other building?
What is the government doing about this?
Auxiliary there was a fire at Kenyatta National
Hospital today morning. Is this an illustration that
we do not know what to expect and where to
expect it? Is there a nexus to the instance that
occurred yesterday and today morning?
Some weeks ago there was a committee set
to look into the main cause of the fire at JKIA. It
has been weeks now since and no adequate
answer has been given back to the people. This
again is what we are to expect in the west-gate
issue. This time it would be rather appropriate for
the government to ensure they give the Kenyan
people answers. This is the least they can do to
those injured and the families of those who lost
their lives in the gunfire instance at west-gate.
I think it is time to ensure the security of all
Kenyans and make it the brim of Kenya’s agenda
rather than other puerile things. It is time that we
see the main impact that the so called police
reforms brought into office. It is time that the
government proves its worth in ensuring that
criminals are brought to justice and punished
accordingly for the lack of ensconced they bring
to Kenyans.
The Kenyan people are watching and you will
be judged accordingly.
R.I.P to all that lost their lives and I would like
to wish all that were injured in the whirlwind
quick recovery.
To Comment follow Link:

Page 23

LEGALITY OF BREACH OF PROMISE
TO MARRY

By Gabriel Pelu.

M

arriage under the Matrimonial
Causes Act cap 150 means the
voluntary union of one man and
one woman for life to the
exclusion of all others. Legally, marriage is a
voluntary act that should be legally able to
accommodate free consent and thought for a
valid and responsible decision to be reached by
marriage capable parties. Under legal thought,
breach of promise to marry is legal in its entire
entirety unless proven illegal and unlawful
whereby persons on breach stand to be charged
for the damage caused and the injury incurred.
Under law, many factors are taken into account
in regard to the legality of breach of promise to
marry. Such factors may be who, the cause of the
breach of promise, reason for the breach of
promise and time of the breach of promise to
main lay terms, a breach of promise to marry is
all about second thought where the ‘heart’ feels
unsatisfied with the person of promise thus the
break out.
Just as consent to marry is required, so
should a second thought of whether to see to a
contemplated marriage ought to return any
gifts that were exchanged or given.

“Where the
parents are the
ones making the
marriage
agreement,
neither party to
the intended
marriage can
bring an order
for breach of
promise to
marry”
promise of marriage or not basically

out of
personal decisions because marriage is a life
commitment and no one would like to walk that
journey half minded of his/her better half.
Under civil law, breach of promise to marry is
acceptable where the legal position depends on
who is at fault for the breach. Where the man is
at fault, the promise breaks without any returns
whatsoever of any gifts given in anticipation of
the marriage while if it’s the girl who breaks the
promise, she is obliged to return any anticipatory
gifts that she got from the man or his family.
Where mutual consent to the breach occurs, both
parties
to
the
Where the parents are the ones making the
marriage agreement such as in Hindu and Islamic
cultures, neither party to the intended marriage

can bring an order for breach of promise to marry
because the contract was between the parents.
Where the parents bring such an action, they can
only receive back presents depending on who is
at fault for the breach of promise. Parents cannot



©Kenyan Legal 2013

receive damages for the breach of promise to
marry. Court holds that; it is against public policy
and morality for parents to compel children to
marry against their wish.

pelugabriel9@gmail.com
Second year, School of Law
J.K.U.A.T

Page 25

CARLA’S DIARIES
Carla’s diaries is a diary of a law student sharing her hostel life experiences

Today I woke up hating one thing: the sound of my alarm clock snoozing. I mean, couldn’t my alarm
just wait for just one minute? Yawning, I reached for my phone, immediately realizing I had a text
message;
“Hello comrade, be informed that the intended lecture for jurisprudence that was to take place this
morning at 0830hours has been postponed to next week Wednesday...Otieno”
I couldn’t help chuckling. Our class representative surely had a way with words, did he just say
0830hours? Couldn’t he just use the standard student language 8.30am full stop?!Hehe. Pulling my covers
closer, I thanked my lucky stars about the class that had bounced. This was surely divine intervention!
I turned in bed and faced the wall, thinking of nothing but sleep. In that moment, Henry Barlow’s
poem “Building the nation” crossed my mind. Mmph, building the nation huh?
“Carla!” someone called at the corridor, followed by Cynthia barging into my room with, “Carla, I
need my dissertation course outline copy”. Just that and I was up immediately, “Take it from the table
Cynthy”, I said yawning at a thankful Cynthia leaving the room with her course outline. I thought of my
undone dissertation research and jumped out of bed.
Talk of a ruined promising morning! Agrrrh!

By Caren Kerubo
carlakeri@yahoo.com
K.U.S.O.L

THE NEW CONSTITUTION AND THE
YOUTHS
By Kenneth Kimathi
The constitutional referendum in Kenya on 4th
August 2010 in which the citizens overwhelmingly
approved it paved way to the promulgation of
the second constitution which refigured the
Kenyan youths. For the first time youths have
their rights enshrined in the Supreme Law of the
Land.
Since its promulgation, consequently, in
the spirit of Article 55 of the constitution, we as
the youths should never be threatened into
taking particular political stands just so as our
grievances can be addressed. Any government
that gets to power has the mandate to cater for
and satisfy the requirements of the said article as
A breach of this should lead to a judicial action
for constitutional breach. Besides that, neither
the government nor the legislature that takes
over has the power to re-enact a law that is
inconsistent with this article.
This article provides that the state shall
take measure, including affirmative action
programmes to ensure that the youth shall:
a) Access relevant education and training.
Therefore it’s our obligation as the
youths to utilize the opportunity
irrespective of our social or economic
backgrounds.
Our
academic
backgrounds also don’t have to limit us
from reaching the epitome. The
government should also respond to this
particular clause by playing an equal
opposite role by ensuring education is
accessible to all youths. It should ensure
that all youths attain higher education;
college, university or technical levels.

©Kenyan Legal 2013

b) This part gives the youths a chance to
associate,
be
represented
and
participate in political, social, economic
and other spheres of life. The state
therefore should go an extra mile to
abolish and deter organizations from
coming up with legislations that
contravene this part of the article.
Organizations should be stopped from
discriminating the youths when it comes to
offering loans and grants that would otherwise
allow them to participate in the economic
sphere. The parliament should also enact
legislation that provides for affirmative action to
the youths so that they can participate in the
political sphere without paying any fee to
electoral commission as required by the elections
Act.
The last part of this article provides that
the state should protect the youth from harmful
cultural practices and exploitations. It’s therefore
upon the state to use its representatives and
organs to ensure that the youth are protected at
the village levels because this is where the centre
stage of cultural practices, if any, takes place. It
should ensure that all the barbaric and harmful
practices that affect the youth are abolished and
any person found in practice of the same to face
the full wrath of the Law.
Youths in the past have been exploited
mostly when it came to employment and other
opportunities that the youths seemed to have
interest in. they were asked to part with huge
amounts of money in order to get access to such
opportunities. Any individual found to be

Page 27

involved in such unscrupulous practice of
exploitation must also be dealt with accordingly.
All in all, as a youth I see this as a rare
opportunity that we have and therefore ought to
fully utilize it.

kimsiekeneith@yahoo.com
t Second Year School of Law,
Kenyatta University

To comment follow Link:


©Kenyan Legal 2013

Page 28

LEGAL POSITIVISM: IS IT OR NOT IN
KENYA?

By Michael Opondo O.

I

n contrast with the general idea, the
essence of legal
positivism is not a
denial of ‘Natural
Law’ theory claim that Law
and morality are heavily
interlinked, but rather that
the identification of the law
is not solely dependent on
moral argument, but that it
depends on social facts
alone. In my view Rather,
Kenya’s Law application is
solely built on Legal
positivism as natural law
sources are slowly but sure
seeing their demise, take
for example, Customary
Law. Legal positivism,
therefore, is a school of Jurisprudence whose
conventional nature of law is socially constructed
with legitimate source from written rules and
regulations. It was largely developed by legal
thinkers in the nineteenth-century.

©Kenyan Legal 2013

The doctrine, that law can be identified by
reference to social facts alone without engaging
moral argument is called “The sources thesis” by
Prof. Joseph Raz. He states that, in “The
Authority of Law (1979)” , that the legal positivist
thesis is that what is law and what is not is a
matter of social fact. He further postulates that a
jurisprudential theory is only acceptable only if its
test for identifying the content of Law and
determining its existence depends exclusively on
facts of human behavior.
Back home in Kenya, Law is
sewed on Social dynamics
and not the other way
round-law follows social
change-thus social facts
constitutes what is and
what is not law of the land.
This has however not been
conclusive as there’s no
exact test to be used to
identify Law.
Prof. Ronald Dworkin
comes in to attack “the
sources thesis” in his
“Magnum opus on legal
theory,
Law’s
Empire
(1986)” arguing that legal
positivism cannot properly account for legal
argumentation by lawyers and legal decisions by
appellate judges in so called ‘hard cases’. He
further says that law consists not merely of the
settled legal rules but also legal principles which
are not identified from the ‘sources thesis’ but

“Law is to bring
pleasure and avoid
pain, with pain and
pleasure as the
ultimate standards
on which Law is to
be judged”

Page 29

from the moral interpretation of Law. Dworkin’s
view is however often characterized as a ‘third
theory’ partly because it’s not clear where he
stands on question of whether there is a
conceptual relation between Law and morality.
Does Kenyan Law have a relation to morality or
not?
Jeremy Betham (1742-1832) brings in his
legal
philosophy
called
“Utilitarian
individualism” whereby “utilitarianism” is a
theory in normative ethics holding that proper
source of action is the one that maximizes overall
happiness. He criticized the method of Lawmaking, corruption and inefficiency in the
administration of justice and restraints on
individual liberty. The law in his view was to
emancipate the individual from bondage and
restraints upon his freedom; once the individual
was made free, he would be able to look after his
welfare. Law is to bring pleasure and avoid pain,
with pain and pleasure as the ultimate standards
on which Law is to be judged. As held by Betham,
Law in Kenya is viewed as to either merit an
individual with freedom and rights or to bring
bondage and/or punishment to law breakers.
The Legislature is the Law making body in
Kenya, being an arm of the sovereign
Government; accordingly, as stated by John
Austin (1790-1859), sovereign is the source of
law. “Every positive law or every law simply and
so called is set by a sovereign individual or a
sovereign body of individuals to a person or
persons in a state of subjection to its author”. He
further postulates that “positive law consists of
commands set as general rules of conduct by a
sovereign to a member or members of the
independent political society where in the
author of the law is supreme”, therefore,
accordingly, Austinian Theory is that Law has its
source in sovereign authority and there can be no
law without a sovereign, and every law is a
command of the sovereign accompanied by a

©Kenyan Legal 2013

sanction. This comes under criticism and
subsequent improvements by Hans Kelsen.
Kelsen’s theory, as is well known, doubly
pure, free from psychological and sociological
investigations and it separates law from morality.
Hans Kelsen propounded a theory of law, which is
an improvement upon Austin’s theory, in his
essay, “The pure theory of Law”. He postulates
that law is a norm of action, normative science,
and remain valid even when they are infringed
and even when the indicated consequence has
not followed. Kenyan Supreme Court rulings
involving ‘punishment by death’ has not been
executed in the long recent past but still remains
valid. “State” is therefore a synonym for the legal
order which is nothing but a pyramid of norms.
‘Purity’ of Kelnite theory as his theory is
Universalist and not confined to any particular
legal system.
Next comes the replacement of “The
command theory” of Betham and Austin
effectively by “The rule of recognition” of Prof
H.L.A Hart (1907-1992). In essence that the
identification of law was to be made upon
observance of the behavior of legal officials and
how they identified rules in their society, Kenya’s
delegated legislation fully fits this view. Both
“The command theory” and Hartian “rule of
recognition” are examples of Joseph Raz’s
“Sources Thesis”, Law of a society is to be
identified by social facts alone. Hart also brought
up “separation thesis” which stated that “having
a legal right to do something doesn’t entail
having a moral right to do it”.
All about freedom but at the same time he
does accept the society’s need for a common
morality. John Stuart Mill argues that the
common morality may be utilitarian in nature
but it does not arrive from the divine but from
men who interpret the various natural
phenomena to achieve utilitarian government.
He postulates that trying to impose a moral code

Page 30

on society was unacceptable as it was an attack
on the liberties of the individual and also that
even if the state tried to impose such a moral
constraint on society, then it would make no
difference as it would have no effect on changing
attitudes. This I deem true as far as, for example,
the rule by Kenyan Law against F.G.M is
concerned-it is illegal.

In conclusion, legal positivism is the thesis
that the existence and content of law depends
on social facts alone and not its merits, and in
order to know your legal rights, you need to look
at what laws your society has, which is very
practical in Kenyan Legal Scene.


opondomichael1@gmail.com
Second year; School of Law,

©Kenyan Legal 2013


Page 31

Moment with Self
With Sheila Mokaya

D

TYRANNY OF THE URGENT?
o we ever feel one day flow into the next, one week flow into the next and one
year flow into the next? There is always one more task, one more assignment, one
more item to check off your “to do list”. The tyranny of urgent consumes our

lives. We rush from one task to another. One may wonder, ‘is it really worth it all, will it make
any lasting difference? That the things which are most important get pushed out of our lives by
the things which are most immediately demanding?’
Our homes which were a place of comfort and rest have been reduced to a place of
convenience; a place to eat and sleep. The modern world never whispers. Our cities are like
arcades without exits. Urgent voices, flashing signs and an endless stream of media images
surround: Adapted from When God Said Remember.
Did God intend for us to live such miserable lives; our minds always overcrowded? Truth is
that He had a better plan for us. The wisest man on earth admits that everything under the sun is
meaningless and vanity. That there is no remembrance of men of old, and even those who are yet
to come will not be remembered by those who follow- Ecclesiastes 1:11 he questions: without
God who can eat or find enjoyment?
Psalms 127: 1-2, unless the Lord builds the house, its builders labor in vain. Unless the Lord
watches over the city, the watchmen stand guard in vain. In vain you rise early and stay up late,
toiling for food to eat-for He grants sleep to those He loves.
Let us go back to the source, to the one who created us, the one who determines our destiny,
and the one who gives us rest. He gives us an easy solution; is anyone of you in trouble? He
should pray. For the fight is not ours, but the Lords.

©Kenyan Legal 2013

sheillamokaya@gmail.com
Second year, School of Law,
Kenyatta University

Page 32

THE LAW OF CONTRACT: AN
INTRODUCTION

By Gabriel Pelu

contract is an agreement entered
into voluntarily by two parties or
more with the intention of creating
a legal obligation, which may have
elements in writing, though contracts can be
made orally. The remedy for breach of contract
can be "damages" or compensation of money. In
equity, the remedy can be specific performance
of the contract or an injunction. The parties may
be natural persons or juristic persons. A contract
is a legally enforceable promise or undertaking
that something will or will not occur. The word
promise can be used as a legal synonym for
contract, although care is required as a promise
may not have the full standing of a contract, as
when it is an agreement without consideration.
At common law, mutual assent is typically
reached through offer and acceptance, that is,
when an offer is met with an acceptance that is
unqualified and that does not vary the offer's
terms. The latter requirement is known as the
"mirror image" rule. If a purported acceptance
does vary the terms of an offer, it is not an
acceptance but a counteroffer and, therefore,
simultaneously a rejection of the original offer.
Offer and acceptance

A

The most important feature of a contract is
that one party makes an offer for an arrangement
that another accepts. This can be called a

©Kenyan Legal 2013

concurrence of wills or consensus ad idem
(meeting of the minds) of two or more parties.
The concept is somewhat contested. The obvious
objection is that a court cannot read minds and
the existence or otherwise of agreement is
judged objectively, with only limited room for
questioning subjective intention: Smith v.
Hughes. Richard Austen-Baker has suggested that
the perpetuation of the idea of 'meeting of
minds' may come from a misunderstanding of the
Latin term 'consensus ad idem', which actually
means 'agreement to the [same] thing'. There
must be evidence that the parties had each, from
an objective perspective, engaged in conduct
manifesting their assent, and a contract will be
formed when the parties have met such a
requirement. An objective perspective means
that it is only necessary that somebody gives the
impression of offering or accepting contractual
terms in the eyes of a reasonable person, not
that they actually did want to form a contract.
The case of Carlill v Carbolic Smoke Ball
Company is an example of a 'unilateral contract'.
In Australian Mills v The Commonwealth, the High
Court of Australia considered the term
"unscientific and misleading". Obligations are
only imposed upon one party upon acceptance
by performance of a condition.
Offer and acceptance does not always need
to be expressed orally or in writing. An implied

Page 33

contract is one in which some of the terms are
not expressed in words. This can take two forms.
A contract which is implied in fact is one in which
the circumstances imply that parties have
reached an agreement even though they have
not done so expressly. For example, by going to a
doctor for a checkup, a patient agrees that he will
pay a fair price for the service. If one refuses to
pay after being examined, the patient has
breached a contract implied in fact. A contract
which is implied in law is also called a quasicontract, because it is not in fact a contract;
rather, it is a means for the courts to remedy
situations in which one party would be unjustly
enriched were he or she not required to
compensate the other. For example, a plumber
accidentally installs a sprinkler system in the lawn
of the wrong house. The owner of the house had
learned the previous day that his neighbor was
getting new sprinklers. That morning, he sees the
plumber installing them in his lawn. Pleased at
the mistake, he says nothing, and then refuses to
pay when the plumber delivers the bill. Will the
man be held liable for payment? Yes, if it could
be proven that the man knew that the sprinklers
were being installed mistakenly, the court would
make him pay because of a quasi-contract. If that
knowledge could not be proven, he would not be
liable. Such a claim is also referred to as
"quantum meruit".
Consideration
Consideration is something of value given by
a promissor to a promisee in exchange for
something of value given by a promisee to a
promissor. Typically, the thing of value is a
payment, although it may be an act, or
forbearance to act, when one is privileged to do
so, such as an adult refraining from smoking.
Consideration consists of a legal detriment
and a bargain. A legal detriment is a promise to
do something or refrain from doing something
that you have the legal right to do, or voluntarily
doing or refraining from doing something, in the
context of an agreement. A bargain is something
the promissor wants, usually being one of the
legal detriments. The legal detriment and bargain
principles come together in consideration and

©Kenyan Legal 2013

create an exchange relationship, where both
parties agree to exchange something that the
other wishes to have.
The purpose of consideration is to ensure
that there is a present bargain, that the promises
of the parties are reciprocally induced. The classic
theory of consideration required that a promise
be of detriment to the promissor or benefit to
the promisee. The emphasis is on the bargaining
process, not an inquiry into the relative value of
consideration. This principle was articulated in
Hamer v. Sidway. Yet in cases of ambiguity,
courts will occasionally turn to the common law
benefit/detriment analysis to aid in the
determination of the enforceability of a contract.
Sufficiency
Consideration must be sufficient, but courts
will not weight the adequacy of consideration.
For instance, agreeing to sell a car for a penny
may constitute a binding contract. All that must
be shown is that the seller actually wanted the
penny. This is known as the peppercorn rule.
Otherwise, the penny would constitute nominal
consideration, which is insufficient. Parties may
do this for tax purposes, attempting to disguise
gift transactions as contracts.
Past consideration is not sufficient. In
Eastwood v. Kenyon the guardian of a young girl
obtained a loan to educate the girl and to
improve her marriage prospects. After her
marriage, her husband promised to pay off the
loan. It was held that the guardian could not
enforce the promise because taking out the loan
to raise and educate the girl was past
consideration—it was completed before the
husband promised to repay it.
Stilk v. Myrick, in which a captain's promise to
divide the wages of two deserters among the
remaining crew if they would sail home from the
Baltic short-handed, was found unenforceable on
the grounds that the crew were already
contracted to sail the ship through all perils of the
sea.
Consideration must move from the promisee.
For instance, it is good consideration for person A
to pay person C in return for services rendered by
person B. If there are joint promisees, then

Page 34

consideration need only to move from one of the
promisees.
In addition to the elements of a contract:
 a party must have capacity to contract;
 the purpose of the contract must be
lawful;
 the form of the contract must be legal;
 the parties must intend to create a legal
relationship; and
 the parties must consent.
As a result, there are a variety of affirmative
defenses that a party may assert to avoid his
obligation.







Ewan McKendrick, Contract Law - Text,
Cases and Materials (2005) Oxford
University Press ISBN 0-19-927480-0
P.S. Atiyah, The Rise and Fall of
Freedom of Contract (1979) Clarendon
Press ISBN 0-19-825342-7
Randy E. Barnett, Contracts (2003)
Aspen Publishers ISBN 0-7355-6525-2



Affirmative defenses
Vitiating factors constituting defenses to
purported contract formation include:
 mistake;
 incapacity,
including
mental
incompetence and infancy/minority;
 duress;
 undue influence;
 Unconscionability
 misrepresentation/fraud; and
 Frustration of purpose.
Freedom to contract and Hurley v.
Eddingfield

pelugabriel9@gmail.com
Second year, School of Law
J.K.U.A.T

In most systems of law, parties have freedom
to choose whether or not they wish to enter into
a contract. Hurley v. Eddingfield (1901), in which
the Supreme Court of Indiana ruled in favor of a
physician who voluntarily decided not to help a
patient whom the physician had treated on past
occasions, despite the lack of other available
medical assistance and the patient's subsequent
death.
Reference

©Kenyan Legal 2013

Page 35

CRIMINAL JUSTICE AND HUMAN
RIGHTS: DEATH PENALTY
committed a crime, all in all, pursuing the
essential object of Criminal Law which is
primarily to protect the society from
Criminals and Law breakers; however, if
applied in extreme, human rights might be
violated irreparable.
Human Rights
By Michael Opondo O.
Criminal Justice
Criminal Justice, or rather in Kenyan context
Criminal Procedure refers to the procedure of
bringing a criminal suspect to justice in
entirety from investigation, through arrest,
charges, trials, sentences and punishment. By
virtue of section 3(1) of the Criminal
Procedure Code, which states:
“All offences under the Penal Code
shall be inquired into, tried and otherwise
dealt with according to this code”
And section 3(2) which states that:
All offences under any other Law
shall be inquired into, tried and otherwise
dealt with according to this code subject to
any enactment for the time being in force
regulating the manner or place of
inquiring into, trying or otherwise dealing
with those offences”
It can be deduced that Procedural Criminal
Law has the purpose of administering the
Substantive Law and to bring certainty as to
process to be followed when a person has

©Kenyan Legal 2013

The question of what really Human rights are
is a mammoth one as such and would only
imperfect it’s definition in attempt to pigeon
hole it in one summary, however, an attempt
would do. Human Rights are what every
person/individual shall have by virtue of
birth as human being; they are and remain
inherent and inalienable. In the formation of
a society, however, from a positivist view,
individuals surrender some of their rights to
the government for protection and to
maintain social order, for example, right to
life-you have no absolute right over your life
making suicide a crime. Human rights are
premised under the following assumptions:
 Human rights transcend territory and
time. They are universal.
 Human rights represent legal and
moral limits of the government’s
power.
 Human rights are ancient in origin.
 Human rights are more sacred than
ordinary legal rights.
 Human rights are supra-legal. They
do not depend on existence of
government or constitution.

Page 36

 Human rights are essential conditions
for a free and democratic society.
 Fundamental human rights belong to
human beings as individuals as well
as to human groups as collective
entities.
The Kenyan Penal system is highly built on
the “Highly Punitive” strategy in
administering justice, that is, the attitude that
offenders should be dealt with severely as
possible, taking of “Shoot to Kill” and such
measures, rather that the “Managerialist”
strategy which rather seeks to protect and
uphold the human rights of offenders,
victims and potential victims of crime, never
neglecting any.
Death penalty

Have a lively Endeavour.



Second year; School of Law,

Talking of neglected, the Hangman’s Noose
seems to be feeling so; maybe its justified,
or maybe not. Quoting one Stuart Banner:
“Whether phrased in Philosophical,
political or economic terms, the arguments
have been rooted in a basic moral question:
Are there Crimes so grave or any Criminals
so evil that death is the only just
punishment? Is it right for the state, acting
in our name, to put criminals to death?”
Blood defiles the Land, and it’s not about
being morally blinded or uptight on this, but
any reasonable man-whoever he is-should
feel the same and it therefore beats logic
why we still have the death penalty at the
disposal of our Law courts.
May plea, Kenyan Penal System, lets spare
lives both in bold, black and white; and in
practice.

©Kenyan Legal 2013

Page 37

JUDICIARY WATCH

Our new brand identity – A new
promise to the Mwananchi
Source: www.kenyalaw.org
(PUBLIC DOMAIN ISSUE)
October 11, 2013

The Hon. Dr. Willy M. Mutunga, D.Jur, S.C., E.G.H.
Chief Justice & President, Supreme Court of Kenya
Chairman,
October 2013
Nairobi, Kenya

W

e are making a bold promise. Understanding our role as the agency through which Kenya’s
robust, indigenous, patriotic and progressive jurisprudence will be monitored, reported and
also packaged as a product for export to other jurisdictions, and acknowledging our social
justice obligation to provide public legal information that is open and accessible, we will be the gold
standard by which law reporting and access to public legal information is measured. The people of Kenya,
from whom our mandate is derived, the letter and spirit of the Constitution of Kenya, 2010 and the
Judiciary Transformation Framework requires nothing less of us.
The essence of our renewed sense of obligation is captured in our new slogan “Where Legal
Information is Public Knowledge”. We have come to an enlightened understanding of our mandate and

©Kenyan Legal 2013

Page 38

make a commitment to not merely be a provider of public legal information but the people’s fountain of
knowledge and understanding of the law for the promotion of the rule of law and the advancement of a
civilized society.
We have renewed our minds and rededicated ourselves to the national values and principles of public
service set out in the Constitution of Kenya, 2010 and we have re-engineered our systems and processes
to exceed the expectations the people, the Judiciary, our partners and our stakeholders. The essence of
this renewal is expressed in a new brand identity – KENYA LAW.
The Laws of Kenya (Revised and Consolidated Edition) – A token of our commitment to providing
quality public legal information
Committed, effective and comprehensive implementation of the Constitution will place Kenya on a
social-democratic trajectory. The Constitution has fundamental and core pillars that can mitigate the
current unsustainable and unacceptable status quo in our economic, social, cultural, ideological, and
political sectors. Undermining the Constitution will destroy these pillars. The Constitution calls upon us to
be patriotic. I do not see any other way of expressing our patriotism except in our expression of fidelity to
the Constitution and its unequivocal implementation.
Kinachohitajika ni moyo wa dhati wa kuikubali Katiba na kuitekeleza. Hilo lisipofanyika basi
hapatakuwa na usawa, demokrasia, utawala wa sheria, uhuru wa Mahakama, wala maendeleo yoyote
yale katika jamii.
The Constitution of Kenya, 2010 places an obligation on every citizen to respect, uphold and defend
the Constitution. This obligation, and indeed the obligation placed on the citizen to obey the other laws as
well, necessarily gives rise to a duty on the State to publish the law. The citizen’s obligation can therefore
only be discharged where the citizen has easy access to an accurate, reliable and authoritative source of
the text of the law.
Indeed, in the Bill of Rights, the Constitution establishes the citizen’s right to access ‘information held
by the State’ and places a duty on the State to ‘publish and publicise important information affecting the
nation’.
Therefore, at Kenya Law, we strongly believe that the free flow of information is fundamental for both
access to knowledge and the development of culture. Public legal information is part of the common
heritage of humanity and maximizing access to this information promotes justice and the rule of law. Such
information, which includes the primary sources of law, should therefore be accessible to all citizens.
We are glad to present the first revised and consolidated edition of the Laws of Kenya since 1989. In
keeping with our policy and our obligations on accessibility, the edition is provided and will continue to be
updated in print, online and on CD-Rom; the digital edition is provided on a technology platform that
meets the industry standard for openness and accessibility and the edition is free from unfair copyright
restrictions.
I would like to acknowledge and appreciate the leadership provided by the Members of the Council
for Law Reporting; the innovativeness, diligence and dedication of its Team Leaders and Team Players and
the technical and financial support of the Attorney General and our development partners.

©Kenyan Legal 2013

Page 39

See more at: http://www.kenyalaw.org

We Don’t Take Public Support for the
Judiciary for Granted
Source: www.kenyalaw.org
(PUBLIC DOMAIN ISSUE)

May 20, 2013
Remarks by the Hon. Dr. Willy Mutunga, D. Jur., SC, EGH Chief Justice, President, Supreme Court of
Kenya. (This article was also published in the Sunday Nation edition of May 19, 2013.)

“

Ever since I took my oath of office on June 20, 2011, I have never been under any illusion that
winning public confidence is a destination – rather I believe that it is a continuous journey.

Even at those moments when surveys have found that the Judiciary enjoyed some of the
highest public approval ratings for a public institution, we have been keen to seek ways of winning the
confidence of those who still found our services and attitudes unsatisfactory.
I was, therefore, surprised to read the online report in the Daily Nation (Wednesday, May 15, 2013)
attributing to me remarks to the effect that the proof of Kenyans’ confidence in the court system could be
found in the unanimous decision of the Supreme Court in the recent presidential petition.
Nothing could have been further from what I said. It is possible that since the reporter was not
present at the meeting with Chief Judge Lippman in his Manhattan chambers, he entirely missed the
context and substance of our discussions.
Going by the reactions online, this report has caused a great deal of distress to many Kenyans. I have,
therefore, requested the editors of this newspaper to allow me to exercise the right of reply on this
matter in order to set the record straight.
From May 13, 2013, I have been visiting the United States as part of my continuing engagement with
other jurisdictions to draw lessons on how to speed up the transformation of the Judiciary launched a
year ago. It has been a mutual learning experience for us as well as for our hosts.
In New York, for example, Chief Judge Lippman of Circuit of Appeals is working to bring into the
mainstream of the justice system its town and village justices, many of whom are non-lawyers who have
been criticised for conduct ranging from appearing drunk in court to failing to inform defendants of their
right to counsel, to convicting defendants without trial. We, on the other hand, are attempting to
reconcile the councils of elders, which are important in traditional Kenyan society, with the protections of
our new constitution, for example, with regard to women’s rights.

©Kenyan Legal 2013

Page 40

Our discussions also centered on experiences in negotiating budgets with the Executive and the
Legislature as an independent Judiciary.
I recall telling Chief Judge Lippman that unlike in 2007 when election contestants refused to go to
court, this time round, on the basis of the confidence building work we have undertaken since 2011, there
was recourse to the courts and not violence.
The closest I came to discussing the petition was to say that political questions are problematic for
courts worldwide because what makes sense in law, evidence and the Constitution may not always be
what makes sense politically. The Supreme Court judges and I are only too aware that the decision
handed down in on March 30, 2013 may not be universally popular. We have subsequently taken steps to
open spaces for it to be debated, for the benefit of all actors and interests involved not just now but also
for the future.
One of the events scheduled upon my return to Kenya is the handover of all materials from the
presidential election petitions to university law schools in Kenya in order to launch a robust debate and
lifelong scholarly inquiry on the cases and the decisions that flowed from them.
Through this engagement, the Supreme Court, and indeed the Judiciary, will be inviting criticism of its
processes and outcomes as well as evaluations and affirmations as appropriate. It is a testament to our
acceptance of the principle that it is only through constant engagement that we can build public
confidence in Kenya’s justice system.
Whenever the public has expressed confidence in the workings of the Judiciary, we have never seen it
as an opportunity to become over-confident in our abilities or rest on our laurels. We remain eternally
grateful to those Kenyans who continue to keep the faith in the ideal of the Judiciary created by the
Constitution. We remain keenly aware that to those whose faith may be flagging, we have a duty to
restore it in our decisions and conduct.

See more at: http://www.kenyalaw.org/

©Kenyan Legal 2013

Page 41

Special thanks to:
i) The Contributors
Sheila Mokaya, K.U.S.O.L
Otieno Arnold O., K.U.S.O.L
Caren Kerubo, K.U.S.O.L
Victor Kiamba, Advocate of the High Court
Gabriel Pelu, JKUAT
Kenneth Kimathi, K.U.S.O.L
Sylvia Anne A., U.o.N
Henry Omukubi, K.U.S.O.L
Nelson Otieno, K.U.S.O.L

ii) Picture models;
Patricia Ngare; and
Caren Kerubo.

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To participate in the next issue, please send articles, with your personal details and picture to:
kenyanlegal@gmail.com or

With the reference: KENYAN LEGAL ARTICLE before 19th November 2013

With Complements:
Opondo Michael,
Managing Editor,
©Kenyan Legal 2013
All Rights Reserved.


©Kenyan Legal 2013

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