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The Nature of Law

B. Architecture.
 Law can be described as a collection of rules of human
conduct prescribed by human beings for the obedience of
ABA 2508- BUILDING LAW AND human beings.
CONTRACT ADMINISTRATION  The laws of any country are said to be to some extent to be
an expression of the morality of that country.
 Rules of law should aim to achieve justice. The function of
SOURCES OF LAW the courts is to administer justice according to the law.

Classifications of Law
2. International law
 The law is broadly classified into two categories: State and
international law.
 consists of that body of law which regulates the relations
between states. It is based on customs, treaties and
1. State law conventions.

Subdivided into two categories: public and private law  Disputes between states can be settled in the international
 Public Law-the State has an interest in. Includes; Constitutional Law, court of Justice at the Hague in Holland but litigant states
Administrative Law, Criminal Law. must consent to its jurisdiction. There is also Private
International Law concerned with determining what system
of State Law shall apply in a case which contains of a foreign
 Private Law-concerned with rights and duties of persons towards element.
persons. Includes; Law of tort, law of contract, law of property and
law of succession.
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The Sources of Kenya Law

3. Subsidiary legislation
Stipulated under Sec 3 of the Judicature Act ,CAP 8 of the laws of 4. The substance of the common law, the doctrines of equity and
Kenya. It includes:
the Statutes of general application in force in England on the
1. The Constitution of Kenya 12th Aug 1897. It should be borne in mind that these only apply
2. Legislation which includes; “so far only as the circumstances of Kenya and its inhabitants
i. Acts of the parliament of Kenya permit and subject to such qualifications as those circumstances
ii. Specific Acts of the Parliament of the UK cited in the schedule may render necessary.
to the Judicature Act and the Law of contract Act. 5. African customary law
iii. One Act of Parliament of India
iv. English statutes of general application in force in England on
12th August 1897

The Constitution of Kenya  Some constitutions are written while others are unwritten
e.g. in the UK. The constitution of Kenya is a written
 Document having special legal sanctity
constitution originally enacted on 12th December 1963.
 Sets out the framework and principal functions of the organs
of government of a state  The current Constitution of Kenya was enacted on
Independence Day, December 12, 1963. It was amended
 Declares the principles governing the operations of the
organs on 12th December 1964 so as to establish a republic with a
president as head of state.
 Brings out linkages and interrelationships between the
different arms of government  Since then, the Constitution has been amended several times,
 Supreme law, taking precedence over all other forms of law, with the most current and effective Kenya Constitution being
written or unwritten. revised in 2001. In November 2005, in a nation-wide
 If any other law is inconsistent with the constitution, the
referendum, Kenyan voters rejected a government-backed,
constitution prevails and the other law to the extent of the proposed new constitution.
inconsistency is void.
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 In Aug 2010, another referendum was held in which a

proposed new constitution was passed.
 The main feature of the new constitution is the change in the  Chapter 1 of the laws of Kenya has eighteen chapters covering;
structure of the government and parliamentary system.  Sovereignty of the people and supremacy of the constitution
 Constitutional amendment requires a vote of 65% of all  The Republic
members of the National Assembly.  Citizenship
 The bill of rights
 Land and environment
 Leadership and integrity
 Representation of the people

Legislation
 The legislature
 The executive  By legislation is meant Statutes or Acts of Parliament.
 The judiciary  The legislative power of parliament is exercisable by Bills passed by
 Devolved government the national assembly.
 Public finance  When a bill is passed by parliament it is presented to the president
 National security for his assent. When this assent is given, it becomes law and by
 Commissions and independent bodies definition an Act of Parliament.
 Amendment of constitution
 General provisions and
 Transitional and consequential provisions
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 A bill must receive three readings in the National

 A new Act binds all people in Kenya.
Assembly. The second and third readings are occasions
for wide debates on the main objects of the Bill under  An Act may come into operation either at the time of
discussion. assent or at a later date to be determined by ministerial
 Detailed consideration is left to a committee stage order.
which takes place either in a select committee or the  As parliament is sovereign, it can make, amend or
national assembly itself. repeal any law subject to the constitution.
 Thereafter the president must give his assent to the Bill
before it is passed into law.

 Specific Acts of Parliament of the United Kingdom

These are cited in the schedule to the Judicature Act and include:
 The Admiralty Offences (Colonial) Act, 1849.
 The Evidence Act, 1851, sections 7 and 11.  English statutes of general application in force in England on
 The Foreign Tribunals Evidence Act, 1856.
 The Evidence by Commission Act, 1859.
12th August 1897 that are applicable only to the extent that
 The British Law Ascertainment Act, 1859. they are acceptable to Kenyans given the circumstances
 The Admiralty Offences (Colonial Act), 1860.  The reception date of 12th August 1897 is important as the
 The Foreign Law Ascertainment Act, 1861.
English statutes applicable in Kenya are in the form they had
 The Conveyancing (Scotland) Act, 1874 Section 51.
 The Evidence by Commission Act, 1885. at the reception date. This means that any amendment of such
statutes in England have no effect in Kenya.
 Certain Acts of Parliament of India
The Transfer of Property Act, 1882 of India contains the
procedural law applicable where the Registration of Titles Act, the Land
Titles Act and the Government Lands Act are applied.
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Subsidiary /Delegated Legislation Reasons for delegated legislation

 Subsidiary legislation is part of the written law and is, therefore,  Parliament has no the time to enact all rules; otherwise the
a source of law. It is also known as delegated legislation . parliamentary machine would break down.
 Local authorities, statutory boards, professional bodies exercise a  The technicality of legislation; allows for consultation with
delegated power to legislate. outside bodies
 The need for flexibility outdated rules can be more easily
 Must not be inconsistent with any statute
changed
 Parliament delegates its legislative authority because:
 It lacks enough time to enact rules on all aspects of national issues.
 The impossibility of seeing all contingencies in the initial or
 Some of these aspects are technical in nature hence require experts enabling statute.
outside parliament  Opportunity for experiment
 Its also impossible to foresee all contingencies when enacting a statute.
 Need for rapid action e.g. in times of emergency

Delegated legislation has been criticized for  If Subsidiary legislation conflicts with a statute, the
the following reasons: statute prevails. Otherwise, subsidiary legislation takes
 Legislation is passed in skeleton form, leaving matters precedence over judge made law.
of principles to be decided by delegated legislation  All subsidiary legislation is made under the express
 Inadequate parliamentary control authority of an Act of Parliament and must comply with
 Delegated powers are so wide, thus adding to the any procedure laid down by the Parent Act.
uncertainty of the law
 Delegated powers are loosely defined, thus detracting
from judicial control
 Lack of publicity and advance consultation with
interests affected
 Lack of judicial control
 Retrospective operation
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The substance of common law and doctrines of Doctrines of Equity ctd…

equity Remedy for violation is a right calling for payment of
damages, irrespective of how unjust the plaintiff has acted
 Applicable only to the extent that they are acceptable to Kenyans and whether or not the damages will make good the loss
given the circumstances suffered.
 Common law- entails practices of any society and evolve out of • Equity refers to fairness or natural justice.
usage and culture and consists of the ancient customs and usages
of England which have been recognized and given the force of
law.  remedy for breach is discretionary, depending on the
 The common law has been developing for nearly a thousand justice of the cause and includes injunctions and
years and is embodied in the reported decisions of English
courts stretching back to the 13th century. Specific performance.
 The common law is in itself a complete system of law both civil Equity emerged after citizens became dissatisfied with the
and criminal. judgments of the English common law system.

Doctrines of Equity ctd…  The actual decision affecting the parties

 The principles of law which have caused the judge to
 Common law may mean rules developed through arrive at that decision.
precedents rather than created by Acts of Parliament.
 Where the case concerns facts or situations which are
 Precedent- when a judge gives his decision in a case comparable with earlier cases heard by the courts, the
before him, this has two elements: judge will normally apply the principles from earlier
cases.
 The English common law and doctrines of equity
remain a source of the Law of Kenya but “ so far only
as the circumstances of Kenya and its inhabitants
permit and subject to such qualifications as those
circumstances may render necessary”
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Question of binding decision and

 The common law of Kenya has its roots in the English Precedence
Common Law, but the decisions of East African courts
are related to East African conditions. The body of the  The doctrine of “stare decisis” requires that a court
Kenya Common Law is also swollen by a substantial having once decided a case in a particular manner
number of Kenya cases interpreting Kenya Statutes. should follow the decision in all subsequent cases
involving the same legal issues.
 The doctrine also requires that inferior courts are
bound by the decisions of superior courts where the
decision is relevant to the issue before the court.
 Decisions of the court of appeal of Kenya are normally
binding on itself, subject to what has been said, the
High court and the Magistrate’s courts. Decisions of the
High Courts are binding on the magistrate’s courts.

Advantages of the system of precedent

African Customary Law
 One of the greatest advantages of the system of binding
precedent is that the rules have evolved from real life  Before the adoption of English law, there were rules applicable to
cases and are therefore practical. the different ethnic groups in Kenya and these rules formed what is
described as African Customary Law.
 It promotes certainty, allows for growth and contains a
wealth of detail.  African Customary law- applicable in civil cases in which one or
more parties is subject to it or affected by it. Customary law will
Disadvantages of the system of precedent apply only if it is not “repugnant to justice and morality or
inconsistent with any written law”
 Once a rule has been laid down, it is binding even
 Limited to matters relating to;
though the decision was wrong  Land held under customary law
 It creates a bulky system.  Marriage , divorce, maintenance or dowry
 Seduction or pregnancy of an unmarried girl or woman.
 The system can at times be very uncertain due the role
 Enticement or adultery with a married woman
played by judges.  Succession
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Islamic Law Hindu Law

 Islamic law is applied by Kadhis courts where both parties  Hindu customary rites are a source of Kenyan Law only for
profess the Muslim faith. purposes of solemnizing Hindu marriages and divorce and
 Limited to matters relating to; succession among the Indians.
 Personal status
 Marriage
 Divorce
 Inheritance

The Law Reform Commission Common Law of Kenya

 Established in 1982 to review all laws of Kenya,ensuring;  Rapidly emerging source
 Systematic development and reform
 Integration ,unification and codification  Not spelt out in the Judicature Act.
 Elimination of anomalies
 Repeal of obsolete and unnecessary enactment
 Based on decisions made by East African and Kenyan courts.
 Simplification and modernisation
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THE SUPREME LAW

Acts of parliament relating to Constitution of Kenya 2010 is the supreme law of the land and the supreme source of other laws. All other laws derive
their legitimacy from it and must agree with it otherwise they are null and void. It was made by Kenyans directly and

Construction industry LEGISLATED LAW

as such represents their will.

 Physical planning act 1986 Revised 2009

All Acts of Applicable British Applicable Indian Acts of International Law Delegated Legislation
It provides for the physical development planning for the whole country, region towns
etc. Parliament of Acts of Parliament Parliament (applicable treaties and (made with the
Kenya. statutes) authority of
Parliament)
 Occupational Safety and Health Act, 2007
This replaced the factories and other places of work act, chapter 514 CASE LAW

Case Law or Judge made Law under the doctrine Common Law i.e. unwritten Doctrines of Equity i.e. English
of Judicial Precedent (Stare Decisis). Courts English way of life (rigid Principles of fairness and
 The Employment Act Cap (226) and the regulation of wages and conditions of employment Act interpret law and in the process make law established customs & rules justice (came up to
Cap (229) (binding decisions/authorities) practiced in courts of law) supplement common law for
the sake of fairness, justice and
Makes rules governing wages, housing, leave, health and safety, the special position of equity).
juveniles and women and termination of employment.
 The National Construction Corporation Act OTHER SOURCES (LIMITED TO PERSONAL LAW ONLY)
CAP. 493-1985 ACTS IN KENYA

An Act of Parliament to provide for the establishment of the National Construction

Corporation to assist persons engaged in the construction industry and for purposes incidental African Customary Law (limited to only Islamic Law. Only applied in Hindu Law. Limited only to
thereto and connected therewith non-repugnant personal law & to specific Personal law matters between civil personal law (marriage,
community) Muslims in kadhi courts. divorce & inheritance)
 LAW OF TORTS
⚫ A tort is a civil wrong which gives rise to an action at common law for
unliquidated damages.

⚫ The rules of the law of tort determine when one party can be compensated
for the behaviour of another.

⚫ The right of action in tort springs from the breach of a duty which a person
owes to another person in general.

Nature of torts
⚫ Law of tort is concerned to compensate victims who have suffered harm.
⚫ Tort liability is imposed by law
⚫ The compensatory function of the law of tort is an award of damages
or an injunction

Motive and Malice

⚫ Motive is the reason behind the act of the defendant.
⚫ As a general rule, motive is not relevant in deciding whether a person is
liable in tort.
⚫ The general irrelevancy of evil motive is observed in Bradford Corporation
V Pickles (1895) A.C 587.
⚫ Malice in itself is not a tort, although it will be an essential element in
certain torts e.g. malicious prosecution; cases of defamation etc.

GENERAL DEFENSES TO TORTS

For the plaintiff to succeed in action in tort, he must prove the essential elements
of the tort in question. If he fails, then judgment will be given for the
defendant
1. Self defence
⚫ A person is entitled to defend himself or members of his family and his
property.
⚫ The main criterion here is one of reasonableness.
⚫ In defending himself, a man may use such force as is reasonably necessary
and the means of defence must be related which would otherwise be
suffered.

2. Volenti non fit injuria

⚫ The defence of consent.
⚫ This is the defence that the plaintiff both knew of the risk he was
running and willingly consented to run the risk.
⚫ Simple examples are found in the world of sport e.g. football, rugby,
boxing etc.
⚫ The consent to the risk can be either expressed or implied.
⚫ It is implied in the case of sporting events or express where it was
stipulated in the contract.
⚫ The knowledge of the risk does not necessarily amount to consent.

3.Inevitable accident
⚫ This is an accident which is “not avoidable by any such precautions as a
reasonable man, doing such an act then and there could be expected to
take”.
⚫ Stanley V Powell (1891)
⚫ Inevitable accident is no defence to action under the rule in Rylands V
Fletcher

4. Act of God
⚫ In the words of sir Charles Newbold, P in Ryde v Bushell (1967) E.A,
⚫ “Nothing can be said to be an act of God unless it is an occurrence due
exclusively to natural causes of so extraordinary a nature that it could
not reasonably have been foreseen and the results of which occurrence
could not have been avoided by the person who seeks to avoid liability
by reason of the occurrence”
⚫ In the case in question the defendant was unable to prove that a deluge
of rain which swept away coffee plants was of such an extraordinary
nature as could amount to an act of God.
⚫ The defence can apply to damage caused by floods, earthquakes,
hurricanes, lightning etc.
 5.Act in respect to Statutory Authority
⚫ When a statute authorizes the commission of what would otherwise be a
tort, then the injured person is remediless.
⚫ Of the many statutory corporations which act in pursuance of statutory
powers and duties, local authorities are given the greater scope for
interfering with the rights of the individual.

6. Necessity
Where intentional damage is done so as to prevent greater damage the defence of
necessity can be raised.
If damage is caused to avoid greater damage, it becomes a good defence.

7.Mistake
Mistake whether of law or facts is usually no defence to an action in tort.

Mistaken belief that a prisoner was not due for release was no defence.
It can be relevant on malicious prosecution and false imprisonment

8. Capacity
⚫ The general rule is that all persons can sue and be sued in tort.
⚫ Where two or more persons assist each other in the furtherance of a
common design and commit a tort, they are known as joint tortfeasors.

9. Insanity
⚫ Insanity is not a defence to an intentional tort.
⚫ What is essential is whether D by reason of insanity was capable of forming the intent to commit
the tort.

10. Infants
⚫ Minority is not a defence in torts.
⚫ What is essential is whether D understood the nature of his/her conduct.
⚫ Hart V A-G
⚫ 5 year old boy was held liable
11. Discipline
⚫ A parent may use reasonable and moderate force to discipline a child.
 ⚫ What is reasonable will depend on age, mentality and physique of child.
⚫ Provocation
⚫ Is not defence in tort law.

VICARIOUS LIABILITY
⚫ The word ‘vicarious’ means in place of another person or in substitution for the proper
person.
⚫ The person who commits a tort is always liable, but sometimes another person who
did not commit a tort is also liable.
⚫ This is the case when the relationship of master and servant exists.
⚫ The basic rule is that a master is liable for any tort which the servant commits in the
course of his employment.
⚫ The reason for this rule of the common law is that as the master has the benefit of his
servant’s services, he should also accept his liabilities.
⚫ The importance of vicarious liability is that it ensures that the injured person can sue
the employer instead of employee. The two main criteria for the operation of the rule
are :
⚫ The person who commits the tort must be an employee.
⚫ The employee must commit the tort in the course of employment.

The Course of employment

⚫There is no single test to determine when an employee is in the course of
employment.
⚫ The decisions of the courts tend to humour the individual facts of the case.
Certain situations certainly seem to be covered:
⚫ Torts committed while the employee is doing what he is employed to do.
⚫ Torts committed while the employee is doing what he is employed to do
but doing it in a manner forbidden by his employers.
⚫ Torts committed while the employee is doing what he is employed to do
but doing it in a criminal manner.
⚫ Tort committed while the employee is doing acts which are reasonably
incidental to his work.
⚫ Torts committed while the employee is acting in an emergency for the
protection of his employer’s person or property when his actions would
have normally be outside the scope of his employment.
⚫ Generally, an employer is not vicariously liable for the torts of an
independent contractor.
⚫ However, in some cases either the liability imposed is strict, or duties owed
by a person are so onerous that there can be no delegation to someone
else. Then the employer is liable in addition to the contractor.
⚫ Although the following are often spoken of as examples of vicarious
liability, it is more appropriate to regard them as examples of an
employer continuing to be personally liable. This can arise in the
following situations:
⚫ When an employer is negligent in choosing the contractor, he remains
personally liable.
⚫ When the liability of the employer is strict e.g. in the tort of Rylands V
Fletcher and can occur even if he has taken reasonable care, the
employer is liable whether he commits the tort personally or through an
independent contractor.
⚫ When the employer undertakes a
particularly hazardous activity especially when it is on or near the
highway, he is liable for torts committed personally or by his
independent contractor.
⚫ When the employer authorises or instructs the contractor to do something
involving the commission of a tort, he remains liable.
⚫ Even in the above cases where both the employer and contractor are liable
the former will not be held responsible for the contractor’s collateral
acts of negligence.
⚫ In other words, an employer will only be liable if the risk of harm arises
from the work itself rather than the negligent performance of the work.
 SPECIFIC TORTS
1. Trespass

⚫Trespass is commonly thought to be a tort relating to land but the law also recognises
trespass to the person and to goods.

Trespass to the person

⚫ It occurs if force is directly and intentionally inflicted on another person.
For this purpose force means any physical contact.
⚫ It is a special feature of trespass that an action can be brought even if no
damage has been suffered. This tort is said to be actionable per se, of itself
without proof of damage.
⚫ Where there is a trespass to the person, the same behaviour could also be a
crime. E.g. a punch on the nose could also be result in a prosecution for
assault.
⚫ Trespass to the person embraces assault, battery, and false imprisonment
⚫ Assault is an act of the defendant which causes the plaintiff reasonable
apprehension of the infliction of violence on his person by the defendant.
⚫ Battery is inflicting of violence.
⚫ False imprisonment is constituted when a person’s physical freedom is
unlawfully restricted.
⚫ Defences to assault and battery are lawful arrest and volenti non fit injuria.

Trespass to goods
⚫ Trespass to goods is an intentional and direct act of interference by a
defendant with goods in the plaintiff’s possession.
⚫ The emphasis here is to protect possession.
⚫ The common form this tort will be causing damage to goods or destroying
them.
⚫ Proof of damage is not necessary.
⚫ Frequently, the person in possession will be the owner of the goods in
question.
⚫ The defendant’s act must be direct and intentional, so tearing a page from
someone’s book or throwing a stone at their car are examples of trespass to
goods.

Conversion
⚫ Conversion consists of an unauthorised dealing with the goods or chattels of
another which amounts to a denial of the owner’s title or is inconsistent
with the owner’s right to immediate possession of them.
⚫ Trespass and conversion usually coincide but not always so e.g. if X by
mistake takes the hat of Y and on Y pointing this out, X returns the hat, this
constitutes trespass but not conversion.
⚫ Conversely if on the same facts X denies Y’s title to his hat, X will have
committed conversion in addition to trespass.

Detinue
⚫ Detinue consists of the unlawful retention of the goods of another.
⚫ The plaintiff must prove that he is entitled to immediate possession of the
chattel and secondly that the defendant refused to restore it upon reasonable
demand being made.
⚫ Detinue usually amounts to conversion but the action of detinue is primarily
one for recovery of goods rather than damages.
⚫ If the plaintiff succeeds he can recover either goods or their value.
Trespass to Land
⚫ This tort consists of an unjustified interference with the possession of land.
⚫ The interference may consist of walking over another’s land, or throwing
things onto the land, or placing a ladder against the surrounding wall or
even swinging a crane jib over the land.
⚫ For the purpose of this tort, land means the surface of the earth itself,
anything which is a fixture on it, the airspace above it to the extent
necessary for the use and enjoyment of the land, and the sub soil below the
land.
⚫ This tort is actionable without proof of damage.
⚫ It is obvious that construction work involve constant danger of trespass.
⚫ A contractor would be wise to seek permission for acts which would
otherwise cause a breach of these rules.
 NUISANCE
For the purposes of the law, nuisance falls into
three categories:
1. Public nuisance,
2. Private nuisance
3. Statutory nuisance.

Public nuisance
⚫ A public nuisance is an unlawful act or omission to discharge a legal duty
which causes inconvenience or annoyance to the public, or interfering with
the exercise of employment of a right common to all.
⚫ Public nuisance is primarily a crime, but if a member of the public can
prove that he has suffered some special damage over and above that
suffered by the general public, he will succeed in a civil action.
Statutory nuisance
⚫ Constitute certain maters which are declared by statute to be a nuisance.
⚫ Certain statutory nuisances have been created by Parliament e.g. Public
Health Act (cap 242) section 118 contains a long list of Statutory nuisances
e.g. “premises in such a state as to be injurious or dangerous to health; any
stream, pool…cesspit in such a state as to be injurious to health”
⚫ The Environmental Protection Act also contains a list of statutory nuisances
e.g. accumulation or deposits or animals which are ‘prejudicial to health or
a nuisance’.
⚫ A statutory nuisance cannot exist where there is merely an interference with
the personal comfort of the occupiers.

Private Nuisance
⚫ Private nuisance is committed where one person unlawfully interferes with
another’s use or enjoyment of land.
⚫ Some form of unjustifiable interference must take place e.g. noise, smells,
smoke, fumes, pollution of the air or water etc.
⚫ Essentially, the law of private nuisance attempts to reconcile conflicting
interests.
⚫ The duration of the nuisance is relevant, not only in establishing the
existence of a nuisance but also in determining which remedy is most
appropriate – an injunction or damages or both.
⚫ To hold a party at times of universal gaiety is reasonable, but to hold
frequent parties going into the early hours of the morning causing excessive
and continuous noise would amount to a private nuisance.
⚫ The person who will be liable in an action for nuisance will be he person
who creates the nuisance, or permits it to continue on his land unabated.
⚫ It is no defence in nuisance for the defendant to show that the plaintiff came
to the nuisance or that the conditions giving rise to nuisance are even
beneficial to the community e.g. providing employment.
⚫ Act of God is a defence and statutory authority.
⚫ It has been seen that malice is not a tort in itself (Bradford v Pickles) but
malice could be relevant in nuisance, depending upon the surrounding
circumstances.
⚫ In Hollywood silver Fox farm Ltd V Emmett (1963) All ER 825,
⚫ It was held that the plaintiffs were entitled to damages and an injunction to
restrain the defendant from firing guns or making other noises in the
vicinity of the plaintiff’s fox farm during the breeding season.

Remedies
⚫ Damages,
⚫ Injunction, or
⚫ Abating of the nuisance e.g. the occupier of land can always lop off the
branches of his neighbour’s tree which protrude over his land.
⚫ However this form of remedy should not be taken lightly.
⚫ The sort of problem a plaintiff could face is shown in one case where
branches from the defendants’ apple trees encroached over the plaintiff’s
land.
⚫ The plaintiff cut off the branches stripped off the apples and then sold them.
Although he was within his rights to lop off the branches, he had no right to
keep them, or the fruit.
⚫ He was successfully sued by his neighbour for having misappropriated the
fruit.
The rule in Rylands v Fletcher
⚫ The type of liability created by this tort is Strict Liability.
 ⚫ This means that if a set of given facts fit the requirements of the rule, then
the defendant will be liable, whether he took care or not.
⚫ This tort is always known by the name of the case which gave rise to
particularly form of liability.
⚫ The basics of liability were stated as follows:
⚫ “Where a person, for his own purposes, brings on to his land, and collects
and keeps there anything likely to do mischief if it escapes, he must keep it
at his peril and if he does not do so, he is liable for all the damage which is
a natural consequence of the escape.”
⚫ Decisions on this have extended the scope of the rule apart from water to
fire, gas explosions, electricity, oil, and fumes even to a flag pole.
⚫ But even if it has been established that there has been a non-natural user of
land, it must be proved that there has been “escape” from the defendant’s
land to the plaintiff’s land and consequential damage.

The rule involves a number of points:

1. The dangerous ‘thing’ must be brought by the defendant on to his land. It follows
that no liability can arise from an escape of something which is naturally on the
land.
E.g. weeds or rocks

2. The ‘thing’ must be likely to cause harm if it escapes

3. There must be an escape i.e. the person injured must show that he was not on the
defendant’s land at the time when the harm occurred.

4. The escape must cause damage; may be injury to the person or damage to property.

5. The defendant must bring the ‘thing’ on to his land for his own purpose and in
doing so must be making a non-natural use of his land. In case of Rylands v
Fletcher, the non-natural use was bulk storage of water in a reservoir.
 There are several well established defences to an action under the rule:

• Where the damage caused has been due to the natural user of the land e.g. where
water escapes from land owing to natural gravitation, wrongful act, he cannot
recover.

• Fault of the plaintiff- if the damage is caused by the plaintiff’s own wrongful act,
he cannot recover.

• Consent of the plaintiff-presumably tenants on different floors of a building

impliedly consent to the presence of a water supply running through the
building. If flooding occurs on an upper floor causing damage to a lower floor,
there will be liability.

• Where the escape is caused by the wrongful act of a stranger.

• Act of God

• Statutory authority

• A tangent of the rule is liability for fire. Someone will no be held liable if a fire
begins in their estate/house accidentally and spreads.
⚫ Another tangent is liability for animals. Liability for animals may arise in
both nuisance and negligence but there are two sets of rules governing this
form of liability.
⚫ An occupier of land is liable without proof of negligence for damage done
by his cattle if they trespass on to the land of his neighbour and thereby
cause damage. This is known as cattle trespass.
⚫ “Cattle” includes bulls, cows, horse, sheep, goats, pigs and even poultry but
not cats and dogs. It is in the nature of cats and dogs to trespass.
⚫ Liability can also arise under what is known as the scienter rule, which
stems from the rule in Rylands v Fletcher.
⚫ For the purpose of the scienter rule, animals are divided into two main
categories:
i) Animals mensuatae naturae
ii) Animals ferae naturae
⚫ Animals mensuatae naturae are those which are harmless by their nature
e.g. rabbits, pigeons, domestic pets, e.g. dogs, cats etc.
⚫ The owner of such an animal will only be liable if the animal commits an act
which is contrary to the nature of its species but which the owner knows that
has a propensity to commit.
⚫ Animals ferae naturae are those which by their nature are dangerous e.g. lions,
elephants, snake etc.
⚫ A man who keeps such an animal does so at his peril for if it causes injury he
will be strictly liable, even in the absence of negligence.

NEGLIGENCE
⚫ Negligence is the “omission to do something which a reasonable man,
guided upon those considerations which ordinarily regulate the conduct
of human affairs, would do, or doing something which a prudent and
reasonable man would not do”.

⚫ To succeed in an action for negligence, the plaintiff must prove:

1. That the defendant owes the plaintiff a legal duty of care.
2. That the defendant was in breach of that duty.
3. That as a result of the breach of that duty the plaintiff suffered damage.
4. The damage must not be too remote (i.e. must be foreseeable)
5. The defendant must not be able to raise any defence to the plaintiff’s claim.
⚫ The question as to whether the defendant owed the plaintiff a legal duty of
care is for the courts to decide.
⚫ The case of Donoghue v
Stevenson is a good example.
⚫ Duty, remoteness and causation, are all devices by which the courts
limit the range of liability for negligence…
 ⚫ It is not every consequence of a wrongful act which is the subject of
compensation.
⚫ The law has to draw a line somewhere.
⚫ Sometimes it is by limiting the range of persons to whom a duty is owed.
⚫ Sometimes it is done by saying that there is a break in the chain of
causation.
⚫ At other times it is done by saying that the consequence is too remote to be
a head of damage.

The duty of care

⚫ The role of the duty of care concept is a simple one: that of marking out
problem areas and laying down the rules limiting liability in each.

⚫ Liability in negligence can only arise if a duty to take care is owed.

⚫ Whether a legal duty of care exists depends upon whether what took place
was reasonably foreseeable.

⚫ It is clear that a motorist owes a legal duty of care towards fellow motorists
and pedestrians, the surgeon and dentist towards their patient, the
manufacturer towards the consumer.

⚫ Before a duty of care can exist, it must be shown that there is foresight of
harm, that there is proximate relationship between the parties and that it is
just and reasonable to impose the duty.

⚫ There are certain well-recognised situations where the courts have faced
particular problems in establishing whether a duty should exist because of
policy considerations. These include:
Cases involving pure economic loss

⚫ As a general rule, no duty of care is owed where plaintiff suffers only pure
economic loss.

⚫ An example can be found in the case where a research institute negligently

allowed a virus to escape which caused foot and mouth disease, and as a
result cattle needed to be slaughtered over a wide area. Markets were
closed to stop the spread of the infection.
 ⚫ The plaintiff was a cattle auctioneer who lost profits as a result i.e. his only
loss was pure economic loss.

Cases involving negligent mis-statements

⚫ If the negligent statement results in physical damage, the normal rules of

negligence operate.

⚫ So, in one case where an architect negligently stated that a wall was safe to be left
standing, he was successfully sued in negligence by a workman who was injured
when the wall collapsed (Clay V Crump).

⚫ In negligent statements, there has to be dishonesty, mere carelessness is not

enough.
Judicial Immunity situations
⚫ The courts have recognised that there are times when there will be liability
in tort for negligent misstatements.
⚫ Nevertheless, no liability attaches of the statement made by a judge, lawyer
or arbitrator in the course of legal proceedings.
Nervous shock situations
⚫ Nervous shock in this context means illness like psychiatric disorder or depression.
⚫ Nervous shock as a consequence of negligent behaviour causes no problems where
the victim has also sustained physical injuries.
⚫ The cases which cause problems are those where the only harm is the nervous
shock especially if a person was never in any danger himself of suffering physical
harm.
Negligent exercise of statutory powers
⚫ Where a Local Authority acts under statutory powers e.g. in the building inspection
processes, there may be liability for negligence if, once having decided to inspect,
the inspector fails to carry out the inspection properly.
⚫ However there would be no liability in negligence. So long as the Local Authority
had given proper consideration to the question of whether or not to inspect.
Omission to act
As a broad general rule there can be no liability in negligence for pure omission
to act.

Breach of Duty of Care

The plaintiff must prove that there was a breach of that duty.
⚫ This is a question of fact.
⚫ The standard of care required will be that of a reasonable man and will vary
according to the facts of the case.
⚫ So a surgeon must operate with the care that a reasonable surgeon would
take, a builder must build with the care that a reasonable builder would take
and so on.
⚫ In formulating a standard of reasonable care, everyone is assumed to have
knowledge about common facts. e.g. fire burns, knives cut, water can
drown etc.
⚫ In assessing how much risk is involved in the defendant’s activities, one
judge has said that ‘people must guard against reasonable possibilities not
fantastic possibilities’.
⚫ As a general rule, the plaintiff has to prove that the legal duty of care owed
him was broken.
⚫ A plaintiff seeking to prove negligence may also rely on the maxim “res
ipsa loquitur”, the facts speak for themselves.
⚫ In the absence of any explanation on the part of the defendant, the plaintiff
will have discharged the burden of proof.
⚫ The respondents can avoid liability if they can show either that there was no
negligence on their part which contributed to the accident; or that there was
a probable cause of the accident which does not connote negligence on
their part or that the accident was due to circumstances not within their
control.
Damage resulting of the type which is not too remote
⚫ Once the breach of the legal duty of care has been established , the plaintiff
must prove that the injury suffered was caused by the breach.
⚫ A break in the line of causation may make the damage too remote.
⚫ Causation is concerned with the problem of whether the defendants conduct
caused the plaintiff’s damage.
⚫ Remoteness is concerned with the cut-off point at which the law regards, the
defendant as no longer liable to compensate the plaintiff.
⚫ Causation- a defendant may behave
negligently towards a plaintiff and yet still not be the cause of his injuries
e.g. (doctor & patient).
 ⚫ Remoteness- the plaintiff must show the harm he suffers was not too remote
a consequence of the negligent act.
⚫ The test used by the court is that a defendant is only liable for such
consequences of his negligent act as could reasonably be foreseen.

Contributory negligence
⚫ The court has power to reduce the damages awarded to the plaintiff if he is
found guilty of contributory negligence. This means that the plaintiff has
shown lack of reasonable care for his own safety.
⚫ It is important to note that if someone possessed of a special skill
undertakes, quite irrespective of contract, to apply that skill for the
assistance of another person who relies upon such a skill, a duty of care
will arise.

Duties of an employer
Closely related to the study of common law negligence are the common law duties owed
by an employer to his employees. They are as follows:
1. To provide a competent staff.

2. To provide adequate plant and material.

3. To provide a safe system of work.

Occupier’s liability
⚫ Occupier’s Liability Act ( Cap 34) provides that the occupier of premises owes “
the common duty of care” to all his visitors.
⚫ Visitors are all persons who are lawfully on the occupier’s premises.
⚫ The common duty is also defined as “a duty to take such care as in all
circumstances of the case as is reasonable to see that the visitor will be reasonably
safe using the premises for the purposes for which he is invited or permitted by the
occupier to be there”.

⚫ The duty concerns “dangers due to the state of the premises or to the things done or
omitted to be done on them”
⚫ In Lougher V Kenya Safari Lodges & Hotels the plaintiff was a guest at the
defendant’s hotel. He slipped on the floor outside a changing room in the hotel
swimming pool area and broke an ankle. A claim for damages for breach of
common duty of care by the plaintiff succeeded; proper precautions had not been
taken against the probable wetness of the floor due to barefooted swimmers
walking on it.
Some conditions are imposed to decide if there’s been breach:
⚫ An occupier must be prepared for children to be less careful than adults.
⚫ An occupier may expect that a person in the exercise of his calling, will appreciate
and guard against any special risks ordinarily incident to it, so far as the occupier
leaves him free to do so.
⚫ If the occupier has given a warning of a danger
⚫ The occupier is not liable for the negligence of an independent contractor.
⚫ The occupier is not liable if the visitor has willingly accepted a risk.
 7/25/2018

PRINCIPLES OF LAND
LAW LAND LAW
Introduction
The Unit is designed to introduce the fundamental
principles of land law. It builds upon the study of concepts
related to land since pre-colonial to the current system.

ABA 2508: BUILDING LAW AND Definition of terms

CONTRACT ADMINISTRATION Land law is the form of law that deals with the
rights to use, alienate, or exclude others from land.
In many jurisdictions, these kinds of property are
referred to as real estate or real property, as distinct
from personal property.

 The conveyancing dimension of land law

 Each of the legal interests in land assumes
that there is a relationship between two Conveyancing is a document that transfers the ownership of
an interest in land from one person to another: it looks at the
or more people (such as a landlord and a formalities to be followed when creating or transferring an
interest in land.
tenant) and it looks at the rights and
duties of each party to that relationship. Importance
 to ensure that there is certainty as to who has some kind of
proprietary (or ownership) interest in a given piece of land
 promotes certainty by defining the procedure to be followed
when creating, transferring or extinguishing an interest in
land or contracting to do so (the law on formalities)
 promote certainty by requiring owners to register their
interests in a public register.
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Legal concept of land ◦ Physical characteristics of land

 Jackson (1987) defines land as land  Land is immobile - land cannot be moved
covered with water, all matter growing on although sand soil gravel may move by
it together with buildings and any other action of nature the land retains its
things permanently affixed to it. geographical location.
 Jacobus (2003) asserts that land is the
 It's indestructible – this means land is
surface of the earth, the sky above it and
everything below to the centre of the durable and this makes land a worthwhile
earth. investment
NB: The above definitions have the three  Non-homogeneous - no two parcels of
rights of ownership in land i.e sub-surface, land can be the same and cannot occupy
surface and air rights. the same position on the globe.

◦ Economical characteristics of land RIGHTS AND INTERESTS IN


 Scarce - there is shortage of land and thus has a
great demand .This also means that excess supply
LAND
of land in one area cannot meet the requirements  Interests recognized under law are;
of another area. The market is restricted thus 1. Estates,
making supply inelastic
 Modification - Can be modified or improved 2. Servitudes and
 Fixity - Fixed in terms of payment or return on 3. Encumbrances
investment.The land cannot be moved from its
present location of a lesser value to a location of
a higher value for instance land in Kamulu being
moved to Runda.
 Situs - Sites or location generally hinders the
preferences of land in different locations differs.
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1. Estates in land a) Free Hold

 These are interests in land capable of being  This is the greatest interest in land a person
created for a defined period of time. They can have. It gives absolute ownership of the
are quantifiable in terms of time scale i.e. land.
interests for a given duration of time and are  A freehold title generally has no restriction
enjoyed in one’s own land. as to the use or occupation but in practice
 Whereas estate is the legal interest in land, there are conditional freeholds which
tenure of land on the other hand means a restrict the use say agriculture or ranching
set of conditions upon which an estate or purposes only.
interest in land may be owned.  They are subdivided into;
 Types of interests in common law are; i. Freeholds of inheritance i.e. Fee-Simple estate
a) Freehold, and Fee-Tail estate
b) Leasehold and ii. Freeholds not of inheritance i.e. Life estate and
Estate Per autre vie
c) Customary estate

 Fee simple - This is the largest quantum or  Life interest - This estate only lasts for
bundle that land owners can have. A fee simple
represents absolute ownership of land, and the life time of the guarantee or interest
therefore the owner may do whatever he or she holder.
chooses with the land. If an owner of a fee simple
estate dies intestate, the land will descend to the
heirs.
 Estates per autre vie - In this form of
 Fee tail - This is an estate in land subject to a estate the ownership lasts for the life
restriction regarding inheritance. A fee tail is an time of another. Example if a property is
interest in real property that is ordinarily created
with words such as "to A and the heirs of his given to A for the life of B, when B dies
body." It may be limited in various ways, such as before A the property then reverts to the
to male or female heirs only, or to children
produced by a particular spouse settler and eventually B inherits nothing
from the settler.
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b) Lease Holds  They include:-

 These are interests in land that are
limited in duration i.e. there are specific a) Fixed term estate
periods for which they are meant to last b) Periodic tenancy
and where such duration is not expressly
c) Tenancies at will
stated or explained such durations should
d) Tenancies at sufferance
be capable of being ascertained, currently
limited to 99 years. It may be granted by a
freeholder usually subject to a fee
payment or rent and subject to certain
conditions to be observed. They include:-

 Fixed term estate

c) Customary estate
This is normally a lease held by an owner for a fixed period of
time i.e. 99 years. It is guided by certain conditions which may  This applies in those areas not covered by
or may not be done in the continuing relationship of the
parties. registration where the applicable law is
 Periodic tenancy customary law. Hence, it is presumed that
This may be defined as tenancy from year to year or half year this estate exists as a result of the state
to half year. This tenancy is characterized by the element of
continuity .It does not end abruptly but there are steps to be failure in not having all the land brought
taken for this tenancy to end i.e. giving a notice.
 Tenancies at will
under the registration system. Thus if a
This tenancy is created by an express agreement. If there is no land based matter pertaining to certain
time fixation in the agreement then the tenant may be evicted people’s rights was to arise in an area not
by the owner at any time, and this also applies to the tenant
terminating the agreement at will. registered the applicable law would be
 Tenancy at sufferance
governed by the customary estate of the
This is said to be the smallest estate known to law. It exists
when one owns or possesses land by lawful title but then keeps particular community.
ownership without the title at all.
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2. Servitudes  The owner of property burdened by servitude

cannot unilaterally terminate the servitude or
transfer the property free from the servitude
 Can be defined as a device that ties rights without the consent of all the beneficiaries.Thus,
whether or not they expressly agree to its terms,
and obligations to ownership or possession subsequent owners and occupiers are bound to
of land so that they run with the land to follow the servitude.
successive owners and occupiers.  Servitudes arise out of agreements between
 Servitudes allow people to create stable owners and users but may also be created by
prescription (i.e., by open use of someone else’s
long-term arrangements for a wide variety property for a specified period of time) or by
of purposes, including shared land uses; eminent domain (i.e., government appropriation
maintaining the character of a residential of private property for public use).
neighborhood, commercial development, or  Agreements to create servitudes are subject to a
historic property; and financing statutory requirement which requires that they
be created by a written instrument.
infrastructure and common facilities.

 Servitudes usually, but not always, involve two or  The three basic types of servitudes
more parcels of land, one of which is burdened
and the other benefited by the servitude. The include:
burdened parcel is called the “servient estate” a) Easements,
and the benefited parcel the “dominant estate.”
Benefits and burdens that run with the land are b) Covenants, and
“appurtenant” (i.e., they must be used for specific
property) and cannot generally be detached from c) Profits.
the land with which they are associated.
 -use arrangements implemented by servitudes
range from simple driveway easements and
covenants prohibiting non-residential use of
subdivision lots to complex declarations that
provide for the physical and governmental
infrastructure, planned developments, or private
towns.
 7/25/2018

a) Easements b) Restrictive covenants

 These allow the right to enter and use, for a  These are often referred to as negative easements to
the extent that they restrain the activities of the
specified purpose, land that is owned by registered proprietor as to what he can possibly do
another (e.g., the right to install and maintain within his land.
an electric power line over someone else’s  In the event the place curves on the free exercise of
land). the proprietor’s powers and freedoms in relation to
 Easements are commonly used to provide his land, they in effect introduce an element of
curtailment of enjoyment of one’s rights in relation to
for driveways, private roadways, parking, his own property and that restraint is intended to
utility lines, irrigation ditches, and pipelines. benefit all persons other than the proprietor himself.
Historically, easements have been used to  Examples of covenants are agreements between
create rights-of-way for rail, roads, streets, owners of a parcel of land that they will pay
and highways, but more often full ownership assessments to a homeowner’s association and
interests are acquired for those kinds of agreements with an owner of a business on a parcel
facilities of land that another parcel of land in the area will not
be used by a competing business.

c) Profits  There are 3 ways in which a profit can be brought

about:
 profits as a right to go on right of another, i. Unity of seisin which involves acquisition of
to take a particular substance from that ownership or the servient tenement by the owner of
the profit at which point the question of enjoying the
land whether it is the soil or products of profits ceases. Easements and other rights of servient
the soil. tenement for the benefit of a dominant tenement are
extinguished if both tenements come into the same
 A profit entails the taking of something ownership).Where profit is pertinent to land it
terminates through unity of both tenements
from another’s land, something capable of ii. Release that is duly executed and evidenced in
ownership that is taken from the servient writing;
tenement. iii. Alteration of the dominant tenement in such a way
that it cannot support the exercise of such a right so
 They give someone the right to enter and the alteration must be such that it alters the nature
remove natural resources (e.g., sand and the dominant tenement and is completely overhauled
and there is a presumption that any right that existed
gravel) from the land of another. must be distinguished.
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c) encumbrances  Mortgages
 The transfer of an interest in specific
immovable property for the purposes of
These includes Mortgages and Charges and securing of the payment of money
it forms Land as Security for a Loan. They advanced or to be advanced by way of
are borrowing transactions. loan, an existing or future debt, or the
performance of an agreement which may
give rise to financial liability
 In this interest there is a temporary
transfer of interest to the financial
institution

Classification and Creation of a) In a simple mortgage, the borrower

binds himself to repay the loan with a
Mortgages provision that the lender can cause the
security to be sold on default.
b) A mortgage by conditional sale is the
Under section 58, I.T.P.A. four classes of kind of arrangement where the borrower
legal mortgages may be created. These are : ostensibly sells the property to the lender
 (i) Simple mortgages; subject to the following conditions:
(a) that on default of payment the sale shall
 (ii) Usufructuary mortgages; become absolute; or
 (iii) (iii) Mortgages by conditional sale; (b) that on payment of the mortgage debt, the
sale becomes void;
 (iv) (iv) English Mortgages.
(c) that on payment of the debt, the property
will be retransferred to the borrower.
 7/25/2018

c) In the case of a usufructuary  Remedy of Mortgages

mortgage, the lender takes possession of  (i) Foreclosure
the mortgaged property and repays himself, This is a court order which absolutely debars
either wholly or partially, from the rents, the mortgagor or charger from his right to
rates and proceeds from the land. redeem the property. A successful foreclosure
operates to extinguish all subsequent
d) An English mortgage is one in which
mortgages.
the borrower binds himself to repay the
 (ii) Judicial Sale
mortgage money on a certain date and
transfers the mortgaged property absolutely This is an alternative remedy to that of
foreclosure. It is preferable to foreclosure
to the lender, but subject to a provision that where property mortgaged is worth more
he will retransfer it to the borrower upon than the mortgage money
repayment of the mortgage money.

 (iii) Statutory Power of Sale Charges

 (iv) Right to take possession  Section 3 of the Act defined a charge as
 (v) Suit on personal covenant “an interest in land securing the payment
A lender may sue on the borrower's of money’s worth on the fulfillment of any
personal covenant to repay the principal condition and includes sub charge
and interest. This is a right which may be instruments creating a charge.” Unlike
exercised even though the property has mortgage it does not transfer interests in
been sold. land from borrower to the lender but
 (vi) Right to appoint a receiver
operates only as a security.
 (vii) Right to Consolidate
 7/25/2018

Priority of Mortgages/Charges Termination of Mortgages/Charges

 Under all registration statutes, priority is  A mortgage/charge may be terminated by a
given by registration and not by the date of lender exercising his statutory power of sale,
the document. For this purpose, the date of or by foreclosure, or judicial sale, or by
registration is the date that a document is
presented to the registry for registration, redemption and subsequent discharge.
notwithstanding that the actual entry in the  On termination of a mortgage by
register may be delayed. redemption, the property is retransferred to
 The proviso to section 42(1) of the R.L.A. the borrower by execution of a
states that where an instrument is prepared reconveyance, or a re-assignment and under
in the registry, it shall be deemed to have the R.L.A., on redemption the charge is in
been presented on the date on which the practice discharged by the execution of a
application for its preparation was made to discharge of charge, duly attested and
the Registrar.
registered.115

◦ POWERS OF USE AND DISPOSITION  There are three types of waste namely;
a) Viz ameliorating – this involves a change of
 The fee simple is said to be unlimited in
system of husbandry which has the effect of
scope and that the holder has unlimited enhancing the value of the land. Thus this waste
powers of use, abuse and disposition. generally destroys the owner’s evidence of title.
Restrictions on these rights come about b) Permissive waste – this is an omission whereby a
building or buildings are allowed to fall in a state
through a number of statutory of decay.
qualifications. These restrictions basically c) Voluntary waste – this is a wrong of commission
relate to the landowner’s activities on of a positive act of injury to the property. It may
his/her land. The restrictions also are involve pulling down or altering houses charging
the course of husbandly, opening pits or mines
applied equally to leaseholds. Jackson cutting down timber etc.
(1987) defines abuse as waste.
 7/25/2018

◦ Qualification to freedom of use  The land planning Act (cap 303) deals with the
 Section 115 of the Health Act (cap 242) provides ‘No person shall control of development of urban land.
cause a nuisance or shall suffer to exist on any land or premises
owned or occupied by Him or of which he is in charge any
 Section 10 prohibits any development of the
nuisance or other condition liable to be injurious or dangerous to land without consent from the central
health’. authority. Section 3 defines development as
 The objective of the act is to prevent injury to health. Section 118 erection of buildings, the making of any
states that nuisance includes any animals or things so kept on the material changes in the use of any buildings
land as to be dangerous or injurious to health. Prevention of or land sub-divisions or advertisement of
accumulation of direct filth or refuse on and that can cause or be
hazardous to health.
land. If this is done unauthorized then
Section 119 – empowers medical officer to serve the owner and
through a notice the planning authority can

engage him in the removal of the nuisance. take steps to stop it; alter it or even
 Section 120 and 121 of the owner does not adhere to the removal
demolish.
of the nuisance then he is liable to pay a fine.  A fine or imprisonment also can be served
to the owner.

◦ Abuse and disposition

 The Agriculture Act (cap 318) – this gives
 Under the land control Act (cap 302) consent to
the Cabinet Secretary of Agriculture wide transactions must be obtained from appropriate
powers in connection with land. Section land control board.
48 gives him/her powers to make rules on
The following can prevent an owner from disposing
preservation of land. In summary he/she off land.
can;  Caution – any person claiming a contractual or
other right over land amounting to a defined
 Make preservation orders interest capable of creation by a registrable
 Land development orders instrument i.e. a lease holder may lodge a caution
with the registrar against any dealings that is
 Land management orders inconsistent with the interest. And in caution if
one lodges a caution without reasonable cause is
liable to pay remedy in damages.
 7/25/2018

◦ Abuse and disposition continues..  Requirements relating to disposition

 Capacity to dispose of or acquire an interest in
 Inhibition – it is a court order preventing land. Any person of sound mind can hold and
for a time or until the occurrence of an dispose an interest in land. In the case of an infant,
event to be named in such order or until the can hold an interest in land but has no power in
making of a further order, the registration of disposition the registrar in this case can put a
restriction. A committee or guide would be used
any dealing with the land. to deal with the property. For mentally
 Restriction – is imposed by the registrar, handicapped person the high court takes the
either on his own motion or on the mandate.
application of any interested person.  Must be in writing – through its memorandum
Normally imposed for the prevention of any and its contents. This adopts the doctrine of past
fraud or improper dealings in land or for any performance under section 3(3) of the law of
other sufficient use. contract Act (cap 23). Every contract for the
disposition an interest in land must be a general
NB: Under the R.T.A and R.L.A it is used to rule be evidenced in writing.
protect the government interest in land.

Requirements relating to disposition ESTOPPELS

continues…  An estoppel is legal principle that bars a
party from denying or alleging a certain
fact owing to that party's previous
 Execution of the documents and conduct, allegation, or denial.
attestation of signatures, verification  Estoppel includes being barred by false
execution, powers of Attorney. representation or concealment (equitable
 Registration - Recording interests in land estoppel), failure to take legal action until
for ease of conveyancing. the other party is prejudiced by the delay
(estoppel by laches), and a court ruling
against the party on the same matter in a
different case (collateral estoppel).
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 An estoppel is, when a man is concluded a) Equitable Estoppel

by his own act or acceptance, to say the  Equitable Estoppel, sometimes known as
truth. estoppel in pais, protects one party from
 There are two general types of estoppel: being harmed by another party's
a) Equitable and voluntary conduct.
b) Legal.  Voluntary conduct may be an action,
silence, acquiescence, or concealment of
material facts.
 One example of equitable estoppel due
to a party's acquiescence is found in the
case law: Lambertini v. Lambertini

 There are several specific types of i. Promissory estoppel is a contract law

doctrine. It occurs when a party reasonably
equitable estoppels: relies on the promise of another party, and
because of the reliance is injured or damaged.
For example, suppose a restaurant agrees to
 Promissory estoppel
pay a bakery to make 50 pies. The bakery has
 An estoppel certificate only two employees. It takes them two days to
make the pies, and they are unable to bake or
sell anything else during that time. Then, the
restaurant decides not to buy the pies, leaving
the bakery with many more pies than it can sell
and a loss of profit from the time spent baking
them. A court will likely apply the promissory
Estoppel doctrine and require the restaurant to
fulfil its promise and pay for the pies.
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ii. An estoppel certificate is a written  Estoppel by laches - precludes a party

declaration signed by a party who attests,
for the benefit of another party, to the from bringing an action when the party
accuracy of certain facts described in the knowingly failed to claim or enforce a
declaration. The estoppel certificate legal right at the proper time
prevents the party who signs it from later
challenging the validity of those facts. This
type of document is perhaps most
common in the context of mortgages, or
home loans. If one bank seeks to purchase
mortgages owned by another bank, the
purchasing bank may request the
borrowers, or homeowners, to sign an
estoppel certificate establishing:

 Legal Estoppel GOVERNMENT RIGHTS IN LAND

 Legal estoppel consists of estoppel by  This was adopted from the European way
deed and estoppel by record. Under where the feudal system and allodial use
the doctrine of estoppel by deed, a party of land which was providing services and
to a property deed is precluded from general land administration.
asserting, as against another party to the  Though land could be owned by an
deed, any right or title in derogation of individual, it was necessary for the
the deed, or from denying the truth of any government to retain certain rights on
material fact asserted in the deed. the land.
 7/25/2018

 These four rights are:  B. Eminent Domain - This means that the
government is able to take up land individually
owned for public use and improvement. Acquiring
this land is done through legal process called
 A) Property taxes - this basically means Condemnation where the owner is paid a fair
that proceeds from the land were market price for the land that is taken up.
Severance damages are paid upon when there is
apportioned to the king or the only a portion of land being taken while still the
government. These taxes helped to owner gets compensation for the land taken. At
times an owner might force certain authorities to
support the government and also increase buy their land. Example land close to Airports
the government revenue. may be sold back to the authorities and this is
referred to as Inverse Condemnation. When there
is condemnation of land next to an owner B and
there is resultant improvement on the land that
reduces the value of owner B's land then
consequential damages are paid.

 C. Police Power – These are basically

government enacted laws to ensure there
is order, safety health and general welfare
of the citizens. This includes zoning laws,
planning laws, building laws health and
safety.
 D. Escheat -This basically means land
reverting back to ownership by the
government when a person dies and
there are no heirs to the property. This
also applies when the property has been
abandoned for a long time.
14.3.05T MORTGAGES AND CHARGE

14.3.05T11 MORTGAGE AND CHARGE

Definition of Mortgage: is the transfer of an interest in specific securing the payment of
money advanced or to be advanced by way of loan, an existing or future debt, or the
performance of an engagement, which may give rise to peculiarity liability.

The transferor is called a mortgager and the transferee a mortgagee. The principal
money and interest on this money for which payment is secured is called the mortgage
money. The instrument (document) by which the transfer is effected, is called a
mortgage deed.
Definition of charge: is an interest in land, securing the money payment of money or
money‟s worth or the fulfillment on any condition, and includes sub charge and the
instrument creating a charge.

14.3.05.T13 TYPES OF MORTGAGES

Are two main types:
a Legal Mortgages, and
b Equitable Mortgages

a LEGAL MORTGAGES
In Kenya the Legal Mortgage may be created under Section 58 of the Indian Transfer of
Property Act 1882. According to this Act, the following four classes of Legal Mortgages
may be created:
i) Simple Mortgages
ii) Usufructuary Mortgages
iii) Mortgages by Conditional Sale
iv) English Mortgages.
i) In a simple mortgage, the borrower binds himself to repay the loan and in the case of
default, the lender can sell the security to recover his money.
ii) In the case of a Usufructuary mortgage, the lender takes possession of the
mortgaged property and repays himself, either wholly or partially, from the rents,
rates and proceeds from the land.
iii) A Mortgage by conditional sale, is that type of arrangement where the borrower
sells the property to the lender subject to the following conditions:
1. That on the default of payment the sale shall become absolute; or
2. That on payment of the mortgage debt, the sale becomes void;
3. That on payment of the debt, the property will be transferred to the
borrower
iv) An English mortgage: is that type of mortgage when the mortgager binds himself to
repay the mortgage money on a certain date and the transfers the mortgages property
absolutely to the lender, subject to this provision that he will retransfer it to the
borrower upon repayment of the mortgage money. The English mortgagers are more
valuable as compared to other types of legal mortgages.
 b EQUITABLE MORTGAGES
These mortgages are created in accordance with the provisions of the Equitable
Mortgages Act (Cap. 291) together with the relevant sections of the Government Lands
Act and the Land Titles Act. In the case of an equitable mortgage, the mortgager
(borrower) deposits with the lender (mortgagee) the title deed of the property as security
for the loan. When the loan has been repaid, the Lender (Mortgagee) returns the title deed
to the borrower (mortgager).

Rights of Mortgagers (Lenders)

Section 100 (A) (1) of the Indian Transfer of Property Act provides that the remedies of a
legal Mortgage are available as contained in the Act. The same remedies are also
extended to equitable mortgages under section 100 (A) (2) of this Act. It means that legal
and equitable mortgages have similar rights. The rights of the mortgages are described as
under:
a Foreclosure:
Under this right the mortgagee (lender) may obtain a court order extinguishing the
mortgager‟s equitable right to redeem the property. This order can be obtained if the
mortgager (borrower) fails to pay the sum due for an unreasonable time. This order is
made in two stages:
i) The borrower is given time within which to repay the debt so as to redeem his
property.
ii) If the borrower is unable to repay the mortgage money as ordered then
absolute order of foreclosure is made. In this case, the full estate is vested in
the name of the mortgagee. After this order, the land can be offered by the
mortgagee for sale.
b Sale:
This is an alternative remedy to that of foreclosure. In this case, a mortgagee may sell the
mortgaged property upon an order of court. A sale of the property may also be affected
without an order of court, but only where the mortgagee to sell without applying to court.
The sale must take place in public auction.
The proceeds of the sale must be applied in the following orders:
i) In payment if all expenses property incurred or incidental to the sale.
ii) In payment of all sums due to the mortgagee and to pay any other encumbrances.
iii) In payment in the order of priority of any encumbrances subsequent to the
mortgagee; and
iv) The residue if any, in payment to the mortgager

c Suit on Personal Covenant:

In every mortgage, the mortgager covenants, among other things, to repay the principal
sum plus interest on a definite date. This is a personal covenant, which he enters into with
the mortgagee. Once the date of repayment has passed, the mortgage may sue on this
personal covenant.
Under the Limitation of Actions Act (Cap 22), a suite to recover the principal sum will be
barred if instituted after twelve years from the date of the accrual of the right to receive it.
Only six years interest is reasonable under the Act.
d Appointment of a Receiver:
This is one of the ways in which the mortgagee may realize his security. Such
appointment may be made by the mortgage, in which case it must be done in writing, or it
may be made by the court upon an application by the mortgagee. A receiver is appointed
by the lender in writing, but he is deemed to be the agent of the borrower. The receiver is
responsible for collecting rents, profile, and income relating to the property. The money
received must be applied in the following order:
i) In discharge of any prior encumbrances free from which the property was sold.
ii) In paying the receiver‟s own commission insurance premiums and the cost of
repairs (if any);
iii) In payment of interests accruing sue in respect of the principal due under the
mortgage;
iv) In discharge of the mortgage debt if so directed by the lender.

e Right to take possession:

A mortgagee may also realize his security by entering into possession of the security
property. Where the mortgagee chooses to realize his security by taking possession of the
mortgaged property, he becomes a mortgagee in possession. He is then accountable to the
mortgager for any income received by him from the time of entering into possession. In
this case the mortgagee is responsible for:
i) Any failure to be diligent in realizing any sum due to him from the mortgaged
property.
ii) An occupation rent if he occupies all or part of the mortgaged land, at the fair
market value.
iii) An unreasonable injury or neglect of the mortgaged land caused by his willful or
negligent act or omission.
iv) Repairs and improvements to protect the value of mortgaged land. In this case he
is allowed to charge reasonable cost of repairs and improvements made.

Rights of the Mortgager (borrower)

The main right of the mortgager is his right to redeem the mortgaged property on
payment of the principal sum borrowed, plus interest. In Common Law, if a borrower
didn‟t repay the mortgage debt on due date (i.e. Legal date of redemption), hid right to
redeem the mortgaged property was extinguished. But the equity of redemption was
allowed to the mortgager. The term “equitable right of redemption” was based on the
following two equitable principals.
i) Once a mortgage, always a mortgage;
ii) Equity looks at the intent rather than the form.
According to the principal of “Equitable Right of Redemption”, the mortgager has the
right to repay the debt plus interest, even after the date for redemption. Equity treats the
right of redemption with special care. Any term in a mortgage deed, which greatly
benefits the mortgagee at the expense of the mortgager, should be viewed carefully. The
right of redemption exists as long as an order of foreclosure has not been issued by a
court.
 In addition to the Equitable Right of Redemption, the mortgager has the following
rights:
i) The appointment of a receiver
ii) The statutory power of sale of land
iii) The action on the personal covenant to repay the money lent
iv) The improvements to the mortgaged property
v) The payment of public charges in respect of the mortgaged property.

Revision Questions
a) Briefly explain the following:
i) Mortgage
ii) Charge (6mks)
b) Describe equitable mortgages.
(3mks)
c) i) Briefly explain the term „mortgage‟
ii) Outline the types of mortgages.
iii) Outline the use of land as security in mortgage transactions. (12mks)