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In relation to the law for succession, explain five characteristics of a will. (10 marks)
Testamentary intent: A will must be executed with the intent to dispose of one's assets after death. Writing: A will must be in writing and signed by the testator, or by someone else in their presence and under their direction. Formality: Wills are generally subject to certain formal requirements suRead more
- Testamentary intent: A will must be executed with the intent to dispose of one’s assets after death.
- Writing: A will must be in writing and signed by the testator, or by someone else in their presence and under their direction.
- Formality: Wills are generally subject to certain formal requirements such as witnesses, date and place of execution.
- Revocable: A will can be amended or revoked by the testator at any time before their death.
- Capacity: The testator must have the legal capacity to make a will, meaning they must be of legal age and of sound mind.
See lessIn relation to the law of contract, highlight five rules that the courts apply to distinguish liquidated damages from penalties. (10 marks)November 2022
The courts apply several rules to distinguish liquidated damages from penalties in relation to the law of contract. These include: Genuine pre-estimate of loss: Liquidated damages are an estimated sum of money agreed upon by the parties as the amount of compensation that will be paid in the event ofRead more
The courts apply several rules to distinguish liquidated damages from penalties in relation to the law of contract. These include:
- Genuine pre-estimate of loss: Liquidated damages are an estimated sum of money agreed upon by the parties as the amount of compensation that will be paid in the event of a breach of contract. If the amount is a genuine pre-estimate of the loss that is likely to be suffered as a result of a breach, it will be considered a liquidated damages clause.
- Purpose of the clause: If the purpose of the clause is to compensate for a loss, it will be considered a liquidated damages clause. If the purpose is to deter the breaching party from breaching the contract, it will be considered a penalty.
- Comparison with actual loss: The courts will compare the amount of liquidated damages to the actual loss suffered as a result of the breach. If the liquidated damages are disproportionate to the loss, it may be considered a penalty.
- Unenforceable penalty: A clause that imposes a penalty is unenforceable and the court will not enforce it.
- The clause should be reasonable: The clause should be reasonable in the sense that it should not be out of proportion to the harm or loss caused by the breach.
See lessExplain five defences available to a person sued under the rule of Rylands vs Fletcher.(10 marks)November 2022
The rule of Rylands v Fletcher is a legal principle that holds a person liable for any damage caused by a non-natural use of land. The following are five defenses that may be available to a person sued under this rule: Act of God: A defendant may argue that the damage was caused by an act of God, suRead more
The rule of Rylands v Fletcher is a legal principle that holds a person liable for any damage caused by a non-natural use of land. The following are five defenses that may be available to a person sued under this rule:
- Act of God: A defendant may argue that the damage was caused by an act of God, such as a natural disaster, and that they should not be held liable.
- Volenti non fit injuria: A defendant may argue that the plaintiff consented to the risk of harm and should not be able to claim damages.
- Statutory authority: A defendant may argue that they were acting under the authority of a statute or ordinance and should not be held liable.
- Act of third party: A defendant may argue that the damage was caused by the actions of a third party and that they should not be held liable.
- Inevitable accident: A defendant may argue that the damage was caused by an inevitable accident, which they could not have reasonably foreseen or prevented, and that they should not be held liable.
See lessA principal is generally liable for the acts of the agent. Outline six exceptions to this rule. (12 marks)November 2022
When the agent exceeds their authority: If the agent acts outside the scope of their authority, the principal may not be held liable for their actions. When the agent acts independently: If the agent acts independently and without the knowledge or consent of the principal, the principal may not be hRead more
- When the agent exceeds their authority: If the agent acts outside the scope of their authority, the principal may not be held liable for their actions.
- When the agent acts independently: If the agent acts independently and without the knowledge or consent of the principal, the principal may not be held liable.
- When the agent acts fraudulently: If the agent acts fraudulently or with intent to deceive the principal, the principal may not be held liable for their actions.
- When the agent is an independent contractor: If the agent is an independent contractor and not an employee of the principal, the principal may not be held liable for their actions.
- When the agent is a public official: If the agent is a public official acting within their official capacity, the principal may not be held liable for their actions.
- When the agent is under duress or coercion: If the agent is forced to act against their will by threats or coercion, the principal may not be held liable for their actions.
See lessExplain four circumstances under which African customary law is applicable in Kenyan courts. (8 marks)November 2022
When the parties involved in a dispute have agreed to apply customary law: If the parties to a dispute have agreed to apply customary law, the court will take this into consideration and apply the relevant customs to the case. When the dispute concerns property or family matters: Customary law is ofRead more
- When the parties involved in a dispute have agreed to apply customary law: If the parties to a dispute have agreed to apply customary law, the court will take this into consideration and apply the relevant customs to the case.
- When the dispute concerns property or family matters: Customary law is often applied in cases involving property disputes and family matters, such as inheritance, marriage and divorce. This is particularly true when the parties involved are of the same ethnic group and their customs are not in conflict with the Constitution of Kenya.
- In criminal cases, when the accused is charged with an offense under customary law and the parties involved consent to the application of customary law: In criminal cases, customary law can be applied if all parties involved agree to it and the accused is charged with an offense that is recognized under customary law.
- When the customary law is not in conflict with the written law: The court will only apply customary law if it does not conflict with written laws such as the Constitution, and it meets the standard of natural justice, reasonableness and fairness.
See lessHighlight four functions of the National Assembly of Kenya. (8 marks)July 2020
Legislative: One function of the National Assembly of Kenya is legislative. This means that the National Assembly is responsible for making laws that apply to the people of Kenya. This includes initiating and considering legislation, debating and voting on bills, and enacting laws that are in the beRead more
- Legislative: One function of the National Assembly of Kenya is legislative. This means that the National Assembly is responsible for making laws that apply to the people of Kenya. This includes initiating and considering legislation, debating and voting on bills, and enacting laws that are in the best interests of the country.
- Oversight: A second function of the National Assembly is oversight. This means that the National Assembly is responsible for examining and scrutinizing the actions and policies of the government, and ensuring that they are accountable to the people of Kenya. This includes conducting investigations, holding hearings, and making recommendations for action.
- Representation: A third function of the National Assembly is representation. This means that the National Assembly is responsible for representing the views and interests of the people of Kenya at the national level. Members of the National Assembly are elected by the people and are expected to advocate for their constituents and address their concerns.
- Budgetary: A fourth function of the National Assembly is budgetary. This means that the National Assembly is responsible for considering and approving the national budget, which outlines the government’s proposed expenditures and revenue for the upcoming year. The National Assembly has the power to make changes to the budget and to allocate funds to various programs and initiatives.
See lessOutline six circumstances under which a principal is not liable for the acts of the agent.(9 marks)July 2020
Act outside the scope of authority: One circumstance under which a principal is not liable for the acts of the agent is when the agent acts outside the scope of their authority. This means that the agent exceeds the limits of their authority or engages in activities that are not authorized by the prRead more
- Act outside the scope of authority: One circumstance under which a principal is not liable for the acts of the agent is when the agent acts outside the scope of their authority. This means that the agent exceeds the limits of their authority or engages in activities that are not authorized by the principal.
- Fraud or misrepresentation: A second circumstance under which a principal is not liable for the acts of the agent is when the agent engages in fraud or misrepresentation. This means that the agent makes false or misleading statements or takes deceptive actions in the course of their duties, which causes harm to the principal or third parties.
- Disobedience of instructions: A third circumstance under which a principal is not liable for the acts of the agent is when the agent disobeys the instructions of the principal. This means that the agent fails to follow the specific instructions or guidelines provided by the principal, and their actions are not within the scope of their authority.
- Acts of negligence: A fourth circumstance under which a principal is not liable for the acts of the agent is when the agent acts negligently. This means that the agent fails to exercise reasonable care or diligence in performing their duties, and their actions result in harm to the principal or third parties.
- Acts of misconduct: A fifth circumstance under which a principal is not liable for the acts of the agent is when the agent engages in misconduct. This means that the agent behaves in a manner that is inappropriate or unprofessional, and their actions are not within the scope of their authority.
- Acts committed outside the scope of employment: A sixth circumstance under which a principal is not liable for the acts of the agent is when the agent commits an act outside the scope of their employment. This means that the agent engages in activities that are not related to their job duties and are not authorized by the principal, and their actions are not within the scope of their authority.
See lessExplain four ways in which a will may be revoked. (8 marks)July 2020
Revocation by execution of a new will: One way in which a will may be revoked is by the execution of a new will. This means that the testator (the person making the will) executes a new will that explicitly revokes the previous will or any provisions of the previous will. Revocation by physical destRead more
- Revocation by execution of a new will: One way in which a will may be revoked is by the execution of a new will. This means that the testator (the person making the will) executes a new will that explicitly revokes the previous will or any provisions of the previous will.
- Revocation by physical destruction: A second way in which a will may be revoked is by physical destruction. This means that the testator deliberately destroys the will or any part of the will with the intent to revoke it. This can include tearing up the will, burning it, or otherwise rendering it illegible.
- Revocation by marriage or divorce: A third way in which a will may be revoked is by marriage or divorce. In many jurisdictions, the execution of a valid will does not automatically revoke a previous will, but a subsequent marriage or divorce can have the effect of revoking certain provisions of the will.
- Revocation by operation of law: A fourth way in which a will may be revoked is by operation of law. This means that the will is automatically revoked by a legal principle or statute, regardless of the testator’s intent. For example, in some jurisdictions, the execution of a joint will by a married couple may automatically revoke any prior wills executed by either spouse
See lessHighlight six conditions that are necessary for African customary law to become a source of law in Kenya. (9 marks)July 2020
Recognition by the state: One condition that is necessary for African customary law to become a source of law in Kenya is recognition by the state. This means that the state must acknowledge the validity and enforceability of African customary law within its legal system. Consistency with the ConstiRead more
- Recognition by the state: One condition that is necessary for African customary law to become a source of law in Kenya is recognition by the state. This means that the state must acknowledge the validity and enforceability of African customary law within its legal system.
- Consistency with the Constitution: A second condition that is necessary for African customary law to become a source of law in Kenya is consistency with the Constitution. This means that African customary law must not conflict with or undermine the provisions of the Constitution, and it must be compatible with the fundamental values and principles of the Constitution.
- Relevance to the local community: A third condition that is necessary for African customary law to become a source of law in Kenya is relevance to the local community. This means that African customary law must be applicable to and accepted by the local community, and it must be relevant to the needs and concerns of the community.
- Coherence with modern legal principles: A fourth condition that is necessary for African customary law to become a source of law in Kenya is coherence with modern legal principles. This means that African customary law must be compatible with and not conflicting with modern legal principles and standards, and it must be able to adapt and evolve over time to meet changing needs and circumstances.
- Documentation and codification: A fifth condition that is necessary for African customary law to become a source of law in Kenya is documentation and codification. This means that African customary law must be properly documented and codified in order to ensure its uniform application and to facilitate its use as a source of law.
- Adequate legal infrastructure: A sixth condition that is necessary for African customary law to become a source of law in Kenya is adequate legal infrastructure. This means that there must be sufficient legal institutions and mechanisms in place to support the application and enforcement of African customary law, such as courts or tribunals that are specialized in dealing with customary law cases.
See lessIn relation to the law of property, explain four types of tenancy. (8 marks)July 2020
Sole tenancy: One type of tenancy is a sole tenancy, which is a tenancy held by a single individual. A sole tenancy confers exclusive possession and control of the property to the tenant, and the tenant is responsible for all aspects of the property, including maintenance and repairs. Joint tenancy:Read more
- Sole tenancy: One type of tenancy is a sole tenancy, which is a tenancy held by a single individual. A sole tenancy confers exclusive possession and control of the property to the tenant, and the tenant is responsible for all aspects of the property, including maintenance and repairs.
- Joint tenancy: A second type of tenancy is a joint tenancy, which is a tenancy held by two or more individuals. A joint tenancy involves shared possession and control of the property, and all tenants are equally responsible for the property. In the event of the death of one tenant, their share of the tenancy is typically passed on to the surviving tenants.
- Tenancy in common: A third type of tenancy is a tenancy in common, which is a tenancy held by two or more individuals. A tenancy in common involves shared possession and control of the property, but each tenant has a separate and distinct ownership interest in the property. In the event of the death of one tenant, their share of the tenancy is typically passed on to their heirs or beneficiaries.
- Tenancy by the entirety: A fourth type of tenancy is a tenancy by the entirety, which is a tenancy held by a married couple. A tenancy by the entirety involves shared possession and control of the property, and both spouses have equal ownership interests in the property. In the event of the death of one spouse, their share of the tenancy is typically passed on to the surviving spouse.
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