GENERAL KNOWLEDGE Flashcards

Question

What is the Principle in the case of Vernon v Bethell?

Answer 1

The case stands for the principle "once a mortgage, always a mortgage", meaning a borrower cannot contract to give up his automatic right to redeem title to his property once the debt is paid. It was a landmark decision in upholding some basic protection at common law for debtors.

Answer 2

Ejusdem generis, or literally “of the same kind or class,” is a long-standing principle of both contract and statutory interpretation. It provides that, where a general word or phrase follows a list of specific terms, the general word will be interpreted to include only items of a similar nature to the terms specified.

Answer 3

: a doctrine or rule of construction: the meaning of an unclear or ambiguous word (as in a statute or contract) should be determined by considering the words with which it is associated in the context.

Answer 4

the right or ability to bring legal action to a court of law, or to appear in a court.

Answer 5

: a situation omitted from or not provided for by statute or regulation and therefore governed by the common law.

Answer 6

: on the same subject or matter : in a similar case. Note: It is a doctrine in statutory construction that statutes that are in pari materia must be construed together.

Answer 7

First, the guiding principle of the interpretation of all legal documents is that the interpreter is required to establish the intention of those who are responsible for producing the document concerned. In the case of contracts, this means the parties. In the case of statutes, it is the legislature.

Answer 8

The Literal Rule means that the words need to be interpreted in the strict ordinary meaning and the scope of words should not be considered more than its ordinary meaning. The words are to be understood in their ordinary and natural meaning unless the object of the statute suggests otherwise4.

Answer 9

The doctrine of severability means that when some particular provision of a statute offends or is against a constitutional limitation, but that provision is severable from the rest of the statute, only that offending provision will be declared void by the Court and not the entire statute.

Answer 10

Force majeure is a French term that literally means “greater force.” It is related to the concept of an act of God, an event for which no party can be held accountable, such as a hurricane or a tornado Defense for failure to complete ontract What is an example of a Force Majeure? Typical Force Majeure events include natural causes (fire, storms, floods), governmental or societal actions (war, invasion, civil unrest, labor strikes), infrastructure failures (transportation, energy), etc.

Answer 11

Subject to section 6(3), ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.

Answer 12

1. Acts of adultery committed by either spouse 2. Cruelty, whether mentally or physically, caused by their spouse to them or their children 3. Abandonment by either spouse for at least 3 years before the date when they present their divorce petition 4. Exceptional moral corruption or wickedness. 5. The permanent breakdown of the marriage.

Answer 13

1. a spouse commits adultery, 2. a spouse is cruel to the other spouse or to any child of the marriage. 3. a spouse willfully neglects the other spouse for at least two years. 4. The couple have been separated for at least two years. 5. A spouse has deserted their partner for at least three years. 6. A spouse has been sentenced to a term of imprisonment for life or for a term of seven years or more. 7. A spouse has been diagnosed with a severe mental health disorder This is to be certified by two doctors and one of them must be a psychiatrist.

Answer 14

The divorce process starts when the person seeking the divorce (petitioner) files a petition for divorce in a court of law. In the petition they will outline why they are asking for a divorce, and include: A Verifying Affidavit – a sworn declaration by the petitioner saying the contents of the petition are true to the best of their knowledge, information, and belief. Notice to Appear- a document that alerts the respondent (the other party) that a petition has been filed against them. Acknowledgement of Service- a document signed by the respondent personally to acknowledge that they have received the petition. List of Witnesses – A list of witnesses that the petitioner intends to call to testify at the hearing of the petition. Witness Statements – The witnesses must give their signed statements ( an account of the facts as argued by the petitioner List of Documents – If you wish to rely on documents, you must give a list of them and attach copies to the petition. Step 2: Notice to appear Once the petitioner files the petition, the magistrate will sign the Notice to Appear. This is a document that alerts the Respondent (the other party) that a petition has been filed against them and that they should enter appearance (give a formal notice that they or their lawyer plan to maintain or contest the issue) within fifteen (15) days. Step 3: Respondent’s response If the Respondent contests the divorce petition, they will have to file a response and serve the Petitioner. Step 4: Registrar’s certificate After 15 days, the Petitioner will ask the court to issue a Registrar’s Certificate. This means that the petition is ready to go for hearing. Step 5: Hearing of the Petition The petition is fixed, and a hearing takes place. During the hearing, the Petitioner will bring evidence to show the court that the marriage has broken down irretrievably. If the Respondent contests the petition, they will also call witnesses and bring evidence to support their case. Once this is done, the court will set a date for judgment. Step 6 : Decree Nisii On the day that was set for judgment, the court will decide whether there is sufficient grounds to for the divorce to be granted. If it finds sufficient grounds, it will issue the first divorce decree, known as decree Nisii. The couple will then have a month to decide if they want the divorce to be made final or not. Once this is issued, you will have 1 month to determine whether you really want the marriage dissolution to be made final or not. Step 7: Decree Absolute Once a month is over and there has been no change of heart, the court will now issue a Decree Absolute. This is the final stage of the divorce process and confirms that the marriage has been dissolved.

Answer 15

The Judiciary of Kenya consists of five Superior courts made up of the Supreme Court, Court of Appeals, High Court, Industrial Court, Environment and Land Court. The subordinate courts consist of the Magistrate Court, Courts Martial and Kadhi Court.

Answer 16

Constitution/ Code. Legislative Enactment - Statute. Judicial Decisions. Treaties. Other Sources.

Answer 17

12 years for actions to recover land. 12 years from the date of the judgment for an action based on a judgment issued by the courts.

Answer 18

Hon. Lady Justice Martha Karambu Koome was appointed the Chief Justice of Kenya in May 2021.

Answer 19

A magistrate is a minor judicial officer or a civil officer of a state who handles minor cases in a specific area like a town, district etc. A Judge is a judicial officer who administers court proceedings and gives judgment on legal cases after analyzing the facts and evidence related to the case.

Answer 20

The Supreme Court is made up of seven judges: the Chief Justice, who is the President of the Court, the Deputy Chief Justice, who is the Vice-president of the Court, and five other judges.

Answer 21

The Court is organized and administered in the manner prescribed by an Act of Parliament. The Court has a Principal Judge, who is elected by the judges of the High Court from among themselves.

Answer 22

After Plaintiff files and serves the reply to the counterclaim, pleadings will be closed. If no reply is served, then the Defence will be considered as the last document to be filed. Fourteen (14) days after filing and serving the reply to Counterclaim if any. 8. After the close of the pleadings parties are required to complete, file, and serve a pre-trial questionnaire. This is the first in a series of pre-trial procedures. Within ten (10) days after the close of pleadings. 9. The court then convenes a Case Conference. A Case Conference is meant to enable the court to identify the disputed issues as well as set up the manner in which it will conduct the proceedings. The Court could also help the parties to settle the whole or part of the case. The Court issues a Case Conference Order at the end of the Case Conference Within thirty (30) days after the close of pleadings.

Answer 23

Any advocate who is a member by virtue of Section 28 of the Advocates Act Any advocate seleted as an 'Honourary Member' under Section 7 of the LSK Act. The Council elects a person whom it may think fit so to honour, either for life or for a defined period determined by the Council. Any person who has at any time previously been a member of the Society and who complies with the regulations of the Society for the time being in force.This provision does not apply to a person who has been suspended from practice or whose name is struck off the Roll of Advocates. Any advocate selected as a 'Special Member' under Section 6 of the LSK Act. This section creates what is called 'special membership' for advocates under Section 9 of the Advocates Act and other qualified legal personnel who are currently resident in Kenya.

Answer 24

Essentially, HR simply points the employee in the right direction and assists in developing the plan used to get to the final destination. It is the responsibility of a human resource professional to motivate the employees to participate in employee development activities.

Answer 25

There are six stages of modern career development: Assessment, Investigation, Preparation, Commitment, Retention, and Transition

Answer 26

Confidentiality can be defined in terms of a counselor's duty not to disclose information about their client, while privileged communication in a counseling context can be defined in terms of a client's privilege not to have their counselor disclose information about them in a legal setting such as a court of law

Answer 27

NO. SPOUSAL PRIVILEGE PRINCIPALThe general rule is that spouses cannot be compelled to disclose any information made during the subsistence of a marriage. There are nevertheless some exceptions: 1. in a case of offence of bigamy. 2. in torts involving persons or property or any child to the marriage. 3. where one spouse is charged with an offence against morality. See section 130 (1) Evidence Act

Answer 28

They don’t have the pre emptive rights over leasehold lands they hold. “The Constitution at Article 40 guarantees ownership of land in Kenya by any person. Granted, this provision is not absolute as it is subject to Article 65 thereof which restricts land to be held by noncitizens only as leasehold of a term of 99 years and no more.

Answer 29

Scientific selection ensures that workers are hired for their skills and aptitudes, not their personality or ability to talk their way into a job.

Answer 30

In American Cyanamid Co v Ethicom Ltd [1975] AC 396, the court developed a set of guidelines to establish whether an applicant's case merited the granting of an interlocutory injunction. The main American Cyanamid guidelines, as they have come to be known, are: Whether there is a serious question to be tried.

Answer 31

An interlocutory injunction is a court order to compel or prevent a party from doing certain acts pending the final determination of the case. It is an order made at an interim stage during the trial, and is usually issued to maintain the status quo until judgment can be made.

Answer 32

Ndolo Ayah had charged property and it was drawn by an advocate who did not have a practicing certificate. National bank wanted to exercise its power of sale and Ndolo had transferred the property to a third party. The charge instrument was void and national bank could not exercise their power of sale because the lawyer had breached Section 34 of the Advocates Act. The Anaj warehousing case: Failure to take up a certificate does not invalidate the transaction.

Answer 33

VENDORS ADVOCATE: Receives and hold deposit in clients account.

Answer 34

Taxes in Kenya are categorised under two main heads, direct and indirect taxes. The indirect statutory taxes in Kenya applies when the purchase of goods are made. The various taxes under this banner are excise duty, custom duty & levies and V.A.T. On the other hand, income tax falls under the direct taxes in Kenya.

Answer 35

Voire dire is a mini-trial within a trial. Its purpose is to carry out an investigation of the admissibility of evidence during trial example the evidence given by a minor

Answer 36

(i) Records are maintained to verify the accuracy of a transaction (ii) Records should be maintained for a justified period, and thereafter may be destroyed to create room for newly generated records (iii) Records should be classified according to name, number, location, etc. (iv) Records should be flexible and allow for future expansion (v) Records should be maintained in a manner that ensures utmost secrecy and safety of information (vi) The cost of maintaining records should be minimal (vii) Records should be updated to provide the most current information

Answer 37

1. Smarter Automation 2. Artificial Intelligence 3. Cloud Computing 4. Automated Indexing 5. Cross-Functional Team Collaboration

Answer 38

• This is the practice of maintaining the records of an organization from the time they are created up to their eventual disposal – it is the systematic and effective control of records throughout their life cycle

Answer 39

Record management ensures:o Records are accurate and reliable; o They can be retrieved speedily and efficiently; and o Are kept for no longer than necessary

Answer 40

o Section 2 Land Act, LRA: a charge is ‘an interest in land securing the payment of money or money’s worth or the fulfilment of any condition, and includes a sub-charge and the instrument creating a charge’ o Simply put, a charge is security for a loan with an undertaking for repayment. As such, it confers certain rights to the Chargee from the Chargor o It is important to remember that a charge operates only as security, and does not transfer any interests or rights in land (Section 65 & 84 RLA, Section 80(1) Land Act) • Mortgages, on the other hand, are defined as follows: o ITPA defines a mortgage as ‘the transfer of an interest in specific immovable property for the purpose of securing the repayment of money advanced or to be advanced by way of a loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability’ o A mortgage is essentially a conveyance or transfer of interest in land or other properties → this could be a legal or equitable interest, depending on the mode of creating the mortgage or the nature of the interest that the mortgagor has in the property o Consideration is paid from the mortgagee to the mortgagor in terms of the loan CHARGE: Property still stays in the possession of a chargor MORTGAGE: Property does not stay in the possession of the mortgagor CHARGE: A charge and a discharge takes place MORTGAGE: A conveyance and a reconveyance takes place CHARGE:In a charge, subsequent parties can also charge the same property i.e there can be a 2nd party charge MORTGAGE:Once property has been mortgaged, it can only be mortgaged to one party. CHARGE:The parties are a chargor and a chargee MORTGAGE: The parties are a mortgagor and a mortgagee

Answer 41

A pecuniary liability occurs when an employer pays a bill or a debt for goods or services that is in law the liability of the employer. Examples will be where the employer pays the telephone bill of the employee, the contract for the provision of the telephone is between the telephone company and the employee.

Answer 42

CLOSE OF THE PROSECUTION CASE • Once the prosecution has called all the witnesses and tendered all the evidence it intended to, it closes its case, whereupon the court has to determine whether a prima facie case has been established CLOSE OF DEFENSE CASE Sentencing and judgment follows

Answer 43

(1) The trial magistrate or judge must read and explain to the accused the charge and all the ingredients of the offense, in the language of the accused or a language the accused understands (2) He should then record the plea in the accused's own words, and if they are an admission, a plea of 'guilty' should be entered (3) The prosecution must then, immediately, state the facts and the accused should be given an opportunity to dispute, to explain or to add any relevant facts (4) If the accused does not agree with the facts or raises any question to the facts, his answers should be recorded and change of plea entered (5) If there is no change of plea, a conviction should be recorded alongside a statement of facts relevant as well as the reply of the accused

Answer 44

Requirements • The child must be at least six (6) weeks old and less than 18 years old • The child must be declared free for adoption by the adoption society • The applicant must have attained the age of twenty-five years and is at least twenty-one years older than the child but has not attained the age of sixty-five years • An adoption order cannot be issued in favour of the following persons unless the court is satisfied that there are special circumstances that justify the making of an adoption order— • a sole male applicant in respect of a female child; • a sole female applicant in respect of a male child; • an applicant or joint applicants who has or both have attained the age of sixty-five years; • a sole foreign female applicant. Where to file Any High court in the Republic of Kenya What is required in court? For Abandoned Children • A certificate declaring the child free for adoption – Issued by Adoption society • Recommendation of the Adopters by the Director of Children Services • Final letter from a police station stating that the child has not been claimed • Committal order – issued by the Magistrates court committing a child to a children home Where One of The Biological Parent Re-Marries or Where A Relative/Friend/Guardian is Adopting(I) • Recommendation of the Adopters by the Director of Children Services • Marriage certificate if one of the biological parent has remarried Where One of The Biological Parent Re-Marries or Where A Relative/Friend/Guardian is Adopting(II) • Consent from the biological parent/guardian • Waiver of consent if the biological parent cannot be traced (Waiver is issued by the court) • Birth certificate Adoption Order The court will upon being satisfied that the child is free for adoption and the adopter is fit to adopt issue an ADOPTION ORDER. Role Of Registrar General In The Adoption Process The Registrar General registers adoptions once an adoption order is issued by the court What the Registrar General need to register the adoption; • Original adoption order issued in court – Must have a schedule • Copies of documents listed in Part 2 • The Registrar shall upon receipt of the documents issue an Adoption certificate within 7 days. • Registration fee is Kshs 100/=

Answer 45

Cognizable offenses are those in which the investigating authority can arrest the accused without an arrest warrant. Non-cognizable offences are those in which the investigating authority cannot arrest an accused without an arrest warrant

Answer 46

• A limited grant is one that does not give the personal representative authority (or confirm the authority, in the case of a grant of probate) to act with respect to the whole estate in all respects until the administration is completed • It may be described as a ‘restricted grant’, and Section 54, LSA allows a court to limit a grant of representation that it has jurisdiction to make GRANT AD COLLIGENDA BONA It is provided for under Section 67, LSA and Rules 36 + 37, P&A Rules. This grant is normally made where the assets of the estate are of perishable or precarious nature and which need quick attention, i.e. some urgent action needs to be taken in relation to the assets of the estate and there may be delay in obtaining the grant. It is intended to give the administrator power only to collect and preserve the assets of the estate, pending the making of a full grant (In the Matter of Dr John Muia Kalii). Grant of letters of administration ad colligenda bona cannot confer the grantee the status of a personal representative of a deceased person, i.e. this limited grant does not confer on the grantee the right to administer the estate of the deceased person

Answer 47

Starts by way of a complaint. The complaint is done through the police process. Person alleging is required to write statement, produce witnesses, record witness statements, if an offence has been committed police make the decision to arrest the culprit and take him to court. 1.Complaint 2. Arrest 3. Charges 4. Plea 5. Trial: Once the prosecution has called all the witnesses and tendered all the evidence it intended to, it closes its case, whereupon the court has to determine whether a prima facie case has been established 6. Judgment 7. Sentence

Answer 48

Although they all have corporate personalities, the procedure in forming them varies • The procedure in incorporation of a company is generally as follows: (i) Determine whether you are incorporating a public or a private company (ii) Determine whether you will be incorporating a limited or unlimited company (iii) If your company is limited, determine whether your company will be limited by shares or by guarantee (iv) Choose a name for your company ▪ The chosen name must be reserved at the company’s registry ▪ This involves writing to the Registrar of Companies asking that a search be run on the name to confirm that a company with the same name does not already exist, and if so, asking that the name be reserved for use as a company name ▪ The Registrar checks if the name sought is desirable, and once this is confirmed, the reservation remains in force for a period of 30 days ▪ This period can be extended for a further 30 days, during which time no other company may be registered in that name (v) Develop the Memorandum and Articles of Association ▪ The MEMARTS are the founding document and provide the basis for the whole corporate structure ▪ This is the document in which the promoters express inter alia their desire to be formed into a company with a specific name and objects ▪ The MEMARTS are the primary document which set up the company constitution and its objects – as the founding document, it determines the nature and scope of the company ▪ The Articles play a subordinate role to the Memorandum – they contain the rules and regulations b which the company’s internal affairs are governed, e.g. how shares and share capital are to be allotted, how company meetings are to be conducted, how directors are appointed, etc.

Answer 49

Who is an executor - person appointed by the testator under his will to administrate his property and distribute it among his beneficiaries. He derives his authority from the will. The executor applies for the grant of probate and another other necessary grant. Administrator – A person appointed by the court in case of intestacy, and in testate cases where there is no proven executor Public Trustee – An office in the Attorney-General’s chambers, which is designed to administer the estates of those persons who have appointed it to act as such or those who have failed to appoint anyone at all

Answer 50

Procurement is the act of obtaining or acquiring goods and services by an institution. The procurement cycle entails the following: (i) Identification of a requirement or need in the organisation (ii) After which a plan is put in place emphasising how to obtain the specific need. (iii) & (iv)The organisation involved checks on the availability of funds before proceeding to check the sourcing options (v) Checking the sourcing options (vi) (vi)An advertisement on the procurement is then made. (This depends on the company again. A company could choose the open tendering approach or the restrictive approach) (vii) (vii)The organisation receives and opens the bids (viii) (viii) Evaluating the bids using a checklist and carry out eliminations (the vendor is identified and a report on the same is put down) (ix) (ix)The vendor is then notified of the contract award. (x) A purchase order is issued to that effect wither via mail, fax or personally (the order addresses on the terms of service of the contract, the conditions of product of service, price, timelines for delivery etc) (xi) (xi)Administration of the contract (delivery of the goods) (xii) (xii) Inspection of purchases (could result to acceptance or rejection of goods depending on whether the products confirm to the prescribed order) (xiii) (xiii)Issuance of an invoice (which as a receiving document that indicates completion of contract) (xiv) (xiv)Storing and management of goods All the above is subject to the Public Procurement and Asset Disposal Act.

Answer 51

• STATUTE: OATHS AND STATUTORY DECLARATIONS ACT • APPOINTMENT: The Chief Justice may, by commission signed by him, appoint persons being practising advocates to be commissioners for oaths, and may revoke any such appointment. (2) Each commission by which any commissioner for oaths is appointed shall bear a stamp of the value of thirty shillings, to be paid for by the commissioner for oaths therein named; but no other charge or fee shall be made or be payable in respect of the appointment or in respect of anything required to be done to perfect it.• POWERS: A commissioner for oaths may, by virtue of his commission, in any part of Kenya, administer any oath or take any affidavit for the purpose of any court or matter in Kenya, including matters ecclesiastical and matters relating to the registration of any instrument, whether under an Act or otherwise, and take any bail or recognise in or for the purpose of any civil proceeding in the High Court or any subordinate court: Provided that a commissioner for oaths shall not exercise any of the powers given by this section in any proceeding or matter in which he is the advocate for any of the parties to the proceeding or concerned in the matter, or clerk to any such advocate, or in which he is interested

Answer 52

• Notaries Public are licensed under the Notaries Act Cap 17 Laws of Kenya. In Kenya, a notary public is also required to be an advocate. It states; “The Chief Justice may, by instrument under his hand, appoint any advocate to perform within Kenya the functions and duties commonly performed by a notary public of the United Kingdom • APPOINTMENT: “No advocate shall be appointed under this Act unless he has practised as an advocate in Kenya for not less than five years immediately preceding his application to be appointed as a notary public”. • DUTIES: attestation of documents and certification of their due execution for use internationally; preparation and certification of powers of attorney, wills, deeds, contracts and other legal documents for use internationally; administering of oaths for use internationally; witnessing affidavits, statutory declarations and other documents for use internationally; Certification and authentication of documents; When requested by a foreign embassy for notarized documents

Answer 53

• One gets an arraignment date where they shall be taking plea • The charge is read to the accused and he is asked if he understands what is being read to him. He is asked to either plead guilty or not • if one admits the truth of the charge, his admission is recorded in as nearly as possible the words used by him and the court shall convict him and pass sentence or make an order against him unless there appears to be evidence to the contrary • if the accused pleads not guilty, the prosecution opens its case and gives a brief outline of the prosecution’s case indicating who it shall call as witnesses • At the close of the prosecution case, the court is to determine whether the prosecution has proved a prima facie case against the accused • If this is proved, the accused is put on his defence. It usually begins with the accused telling his side of the story and thereafter calling his witnesses. • After both cases are closed, both sides may make their final submissions • JUDGMENT & RULING

Answer 54

TRIAL STAGE AFTER PROSECUTION HAS CLOSED PROSECUTION CASE AND COURT ESTABLISHED PRIMA FACIE

Answer 55

• SECTION 9: Qualifications for practicing as an advocate Subject to this Act, no person shall be qualified to act as an advocate unless— (a)he has been admitted as an advocate; and (b)his name is for the time being on the Roll; and (c)he has in force a practicing certificate; • SECTION 10: Certain officers entitled to act as advocates Each of the following persons shall, if he holds one of the qualifications specified in paragraphs (a), (b) and (c) of section 13(1) at the time of his appointment to his office, be entitled in connection with the duties of his office to act as an advocate, and shall not to that extent be deemed to be an unqualified person, that is to say— (a)an officer in the office of the Attorney-General or the office of the Director of Public Prosecutions; (b)the Principal Registrar of Titles and any Registrar of Titles; or (c)any person holding office in a local authority established under the Local Government Act, (Cap. 265). (d)such other person, being a public officer or an officer in a public corporation, as the Attorney-General may, by notice in the Gazette, specify: Provided that the officers referred to in this section shall not be entitled to charge fees for so acting.

Answer 56

• ADVOCATES ACT • LSK CODE OF Standards OF Professional Practice AND Ethical Conduct (SOPPEC)

Answer 57

• File the Memorandum of Association and Articles of Association: • Memorandum of Association: This is the Constitution of the company. It deals with how the company relates to third parties. It contains the: Name of the company; Location of its registered office; Objects clause- activities of the company; Capital clause- capital with which the company proposes to be registered and the division thereof; Association clause- people who sign that have agreed to associate themselves with the company; Names of subscribers and the number of shares each one of them has. • Articles of Association: It deals with the internal affairs of the company and its day to day operations. It contains: Addresses; issues of shares; meetings; directors, etc. -Table A of the Companies Act gives Model Articles of Association. Part 1 - for a Private Company and Part 2 - for a Public Company. • File of other 3 documents: • Physical address of the company • amount of nominal capital • list of names and addresses of the directors and secretaries, • certificate of compliance from an advocate to state that all requirements have been complied with.

Answer 58

• Memorandum of Association: This is the Constitution of the company. It deals with how the comZpany relates to third parties. It contains the: Name of the company; Location of its registered office; Objects clause- activities of the company; Capital clause- capital with which the company proposes to be registered and the division thereof; Association clause- people who sign that have agreed to associate themselves with the company; Names of subscribers and the number of shares each one of them has. • Articles of Association: It deals with the internal affairs of the company and its day-to-day operations. It contains: Addresses; issues of shares; meetings; directors, etc. -Table A of the Companies Act gives Model Articles of Association. Part 1 - for a Private Company and Part 2 - for a Public Company.

Answer 59

• Within contract law, promissory estoppel refers to the doctrine that a party may recover on the basis of a promise made when the party's reliance on that promise was reasonable, and the party attempting to recover detrimentally relied on the promise • In Cohen v. Cowles Media Co. 501 US 663 (1991), the Supreme Court recognized promissory estoppel as a "state law doctrine creating legal obligations never explicitly assumed by the parties that are enforceable."

Answer 60

• An agreement made by promissory estoppel will typically have the same binding effects on parties that a valid contract would. If a party breaches an obligation created by promissory estoppel, a court can choose to assign either reliance damages or expectation damages.

Answer 61

Offer, Acceptance, Awareness, Consideration, Capacity, And Legality. If a contract lacks any of these elements, then you may not have the legal right to enforce it.

Answer 62

A plaint is the first pleading typically filed by an aggrieved party (the plaintiff) unless the Civil Procedure Rules 2010 provide otherwise.

Answer 63

CIVIL PROCEDURE RULES [Order 4, Rule 1] • a) Name of the Court in which the suit is brought; • b) Name, description and place of residence of the plaintiff, and an address for service; • c) Name, description and place of residence of the defendant, so far as they can be ascertained; • d) Place where the cause of action arose; • e) Where the plaintiff or defendant is a minor or person of unsound mind, a statement to that effect;

Answer 64

• It is accompanied by: • Verifying Affidavit • List of witnesses • List of documents

Answer 65

• Judicial Review proceedings are where you appeal to the high court after a decision has been made by an administrative body • PROCEDURE (1) Seek leave from court ex parte to initiate judicial review proceedings. -Is in the form of chamber summons with an annexed statement of particulars of the applicant, the relief sought and the grounds on which it is sought. -It is also accompanied by an affidavit that verifies the facts relied on (2) After leave is granted, you file an application through motion within 21 days of being granted that leave. You attach copies of the statement accompanying the application for leave as well as the affidavits -one can be allowed to amend the affidavits or add others that they may rely on upon the hearing of the motion (3) There must be an 8 days difference between the date you serve the application and the date of the hearing date mentioned in the application (4) An affidavit of service giving the names and addresses, date of service and the place of service must be served on all persons who have been served with the notice of motion prior to the notice being set down for hearing (5) the applicant has the right to begin • (6) the orders that one seeks are: • a) Certiorari-quashes a decision made by an administrative body owing to an error in law or if it fails to observe the rules of natural justice • b) Mandamus- compels a public authority to perform some duty(not power) which is imposed upon it by statute • c) Prohibition-prevents an inferior court or body from exceeding its own jurisdiction or acting contrary to the rules of natural justice •

Answer 66

• Section 2, Advocates Act • This is the fee paid by a client to an advocate to represent the client whenever a matter arises. • The fee is for efficiency purposes, in that, whenever a matter arises, the advocate will be available to represent a client. The following should be considered before signing a retainer agreement: • The agreement should be in writing for record purposes and evidence. • Conflict of interest. • Scope of engagement. • The amount of fee should be clearly specified

Answer 67

The advocate–client relationship is fiduciary in nature because of the trust the client has in the advocate An advocate is obliged to maintain the secrets of the client at all times during the subsistence of the advocate and client relationship, and even after the relationship ceases This duty stems from the fiduciary nature of the relationship, which makes all communication between an advocate and the client privileged, unless the client waives this privilege of confidentiality • • Section 134, Evidence Act: no advocate shall at any time be permitted, unless with the client’s express consent, to disclose: • Communication made to him in the course of, and for the purpose of, his employment as an advocate, by or on behalf of his client; or • o To state the content and/or condition of any document with which he has become acquainted in the course of and for the purpose of his professional employment; or • o To disclose any advice given by him to his client in the course of and for the purpose of such employment • • • However, this privilege does not extend to communication made in the furtherance of any illegal act and to any fact observed by an advocate in the course of his employment which indicates that a crime or fraud has been committed since the commencement of his employment

Answer 68

• Name and address of the advocate, client and recipient • Facts of the case • Act/breach committed • demand • damages sought • threat/consequences of not heading to the demand

Answer 69

• The main alternative dispute resolution (ADR) methods available in Kenya are : • Negotiation • Conciliation • Mediation • Arbitration

Answer 70

• The right of a government or its agent to expropriate private property for public use, with payment of compensation Your father has land and the government wants to take that land. Advice him. • Article 40(3) of the Constitution. Explain to him that the concept of eminent domain/compulsory acquisition and that the government takes an individual’s private land under justified means such as for a public purpose. However, several conditions have to be met. 1. There should be full payment or just compensation to the person 2. A person with an interest in or right over that property a right to access to a court of law.

Answer 71

• NO Notice of Intention to Acquire • • Section 107(5) and Section 110(1) Land Act • This is published in the Kenya Gazette after the Commission is satisfied and confirms in writing that the land is required for public purposes or in furtherance of the public interest • The Commission publishes notice of intent and delivers a copy of the notice to the Registrar and to every person who appears to have an interest in the land • If the public purpose or interest ceases to exist, the Commissioner may offer the original owner pre-emptive rights to reacquire the property (Section 110 Land Act)

Answer 72

• A general retainer secures the services of an advocate when needed. It runs indefinitely and payment may be from time to time. It ends when one party gives notice to the other • A specific retainer is an agreement entered into for a specific reason, e.g. a specific litigation. Its duration depends on how long the specific activity takes to be completed

Answer 73

• Yes • In Kenya, the remuneration of advocates is strictly regulated by the Advocates (Remuneration) Order to avoid situations of undercutting, which is enhanced by the provision in the Advocates Act which makes it an offence to enter into agreements with the client which allow the advocate to charge fees at a scale lower than the prescribed scale • The advocate must charge fair and reasonable legal fees as provided for by the Advocates Remuneration Order

Answer 74

• Yes • In Kenya, the remuneration of advocates is strictly regulated by the Advocates (Remuneration) Order to avoid situations of undercutting, which is enhanced by the provision in the Advocates Act which makes it an offence to enter into agreements with the client which allow the advocate to charge fees at a scale lower than the prescribed scale • The advocate must charge fair and reasonable legal fees as provided for by the Advocates Remuneration Order

Answer 75

• Article 40 (1) provides that, “every person has a right, either individually or in association with, to acquire and own property (a) of any description and (b) in any part of Kenya”. • Article 40 (2) prohibits parliament from enacting any law that allows the government or any individual to (a) “deprive a person of property of any description or of any interest in, or right over, any property of any description or (b) …to limit or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27(4).” • Article 27 of the Constitution provides for equality and freedom from discrimination on the basis of sex, marital status, belief, culture, among other grounds. The provisions under Article 40 therefore imply that women, like men, have a right to own property and land of any kind anywhere, and culture and traditions cannot be used to deprive them of those rights. • Article 45(3) of the Constitution provides that parties to a marriage will be entitled to equal rights at the time of marriage, during the marriage and at its dissolution. This means that upon entry into marriage, the parties become equal partners. • Article 60 (1) (f) provides for the principles of land policy which include the elimination of gender discrimination in law, customs and practices related to land and property in land. This article is important because it seeks to rectify historical injustices that have continually faced the women of Kenya

Answer 76

A professional undertaking refers to any unequivocal declaration by a professional [an advocate or a member of the advocate’s staff] in the course of practice to someone who reasonably places reliance on it

Answer 77

• The cab rank rule is the principle that an advocate is entitled to accept a clients instructions subject to limited exceptions EXCEPTIONS • Conflict of interest • It is not in your area of specification • Time- you do not have enough time to effectively handle the clients case due to workload • The client has not given clear instructions • The client does not want to pay the required legal fees • If the fee offered is not a ‘proper one’ • Another exception will include where there exists another advocate who is acting for the client in question. However, if the client terminates this prior engagement or such advocate has

Answer 78

• During opening statement, the defendant is allowed to: • Preview the evidence he or she intends to present. • Set forth the grounds for his or her defence, i.e., state the evidence on which the claim or defence is based. • Point out facts that the defendant reasonably expects to bring out in cross-examination even if the defendant does not intend to present evidence. • Defence counsel also may make certain general observations in an opening statement, although as a practical matter such observations may do little to articulate the defendant ‘s theory of defence to the jury. Counsel may: • Tell the jury that it should give attention to all of the witnesses • Ask the jury to consider each piece of evidence carefully

Answer 79

• ADVOCATES COMPLAINTS COMMISION • Established in 1989 under Section 53, Advocates Act to enquire into complaints against advocates (it was preceded by the LSK Boards of Enquiry) • PROCEDURE ONCE THE ACC RECEIVES A COMPLAINT (i) Reject a complaint; (ii) Where a disciplinary offense is disclosed, prosecute the matter before the Disciplinary Tribunal (complaints before the Disciplinary Tribunal are filed by either the ACC, the LSK or complainants in person through their advocate); (iii) Where the complaint has substance but no disciplinary offence is disclosed, deal with the matter and may impose fines of up to Kshs. 100,000/= (iv) Where the disciplinary offence disclosed cannot be properly dealt with by the Disciplinary Tribunal, refer the complaint to a court; or (v) If the matter is not serious or aggravated, then the ACC will promote reconciliation and encourage/facilitate an amicable settlement between the parties

Answer 80

• Examination-in-Chief is based on the issues that will arise in Cross-Examination. • The object of Examination-in-Chief is to elicit facts that are favorable to the case of the party calling a witness. In other words, this is where an advocate obtains evidence from his/her own witnesses. Sometimes the plaintiffs themselves. Normally they will be giving evidence that will be favorable to their case. • An advocate must ensure that: a) witnesses give clear evidence and that they do not talk too fast in order that notes can be taken; b) witnesses face the Judge when answering questions and is not looking at you. This will enhance the quality of their evidence; c) he takes only the evidence that is relevant. d) They ask one fact at a time. • No leading questions are asked at this stage. • Questions may begin with: what, where, when, how, which.

Answer 81

Remedies available • Specific performance in which case the vendor is precluded from forfeiting the deposit • Action for damages usually calculated as the difference between the market price and contract price • Rescission of contract • Repudiating a contract • Quantum meruit • Injunction

Answer 82

• Where the damages can not compensate the loss/state the client will incur

Answer 83

• Adverse possession is a situation where a person takes possession of land and asserts rights over it, and the person having title to it omits or neglects to take action against such person in the assertion of his title for a certain period. • In Kenya, the relevant period for adverse possession to take effect is a period of 12 years • Section 7 and 17, Limitation of Actions Act provides for a 12 -year limitation period for the recovery of land

Answer 84

Elements that must be fulfilled. (nec vi nec clam nec precario) 1. You have been in another person’s land without permission 2. The owner knew that you were there but did not chase you. 3. You stayed there for an uninterrupted and continuous period

Answer 85

• Latin for "something said in passing." A comment, suggestion, or observation made by a judge in an opinion that is not necessary to resolve the case, and as such, it is not legally binding on other courts but may still be cited as persuasive authority in future litigation.

Answer 86

• Ratio decidendi (Latin plural rationes decidendi) is a Latin phrase meaning "the reason" or "the rationale for the decision". The ratio decidendi is "the point in a case that determines the judgement" or "the principle that the case establishes" • In other words, ratio decidendi is a legal rule derived from, and consistent with, those parts of legal reasoning within a judgment on which the outcome of the case depends.

Answer 87

(i) To direct and coordinate the organised work (ii) To aid in the implementation of the organisation policies (iii) To prepare and maintain records for the organisation (iv) To ensure efficiency at the place of work (v) To act as a centre of communication

Answer 88

• Has unlimited original jurisdiction • Appellate jurisdiction – cases from Magistrate Courts, Tribunals Admiralty jurisdiction • Supervisory jurisdiction on subordinate Courts Constitutional cases: Cases on violation of Human Rights

Answer 89

• Res ipsa loquitur (Latin: "the thing speaks for itself") is a doctrine in the Anglo-American common law and Roman-Dutch law that says in a tort or civil lawsuit a court can infer negligence from the very nature of an accident or injury in the absence of direct evidence on how any defendant behaved • ‘Res judicata’ is a Latin maxim that says the ‘matter has been decided. This doctrine states that when a suit has been heard by the court on similar facts and issues, a final judgment is passed. If the issue is no longer appealable, then this doctrine prohibits continuing the proceedings on the same grounds and same parties. • On the other hand, ‘res sub judice’ is also a Latin maxim that means ‘under the judgment’. When parties file two or more suits on the same matter, then the competent court has the authority to hold the parallel proceedings of the suit. The doctrine ordains a stay of suit to avoid duplication and contrary orders. • PRIMA FACIE is a case where a reasonable tribunal while directing its mind on the evidence adduced will convict an accused if no explanation is offered to the contrary. If there is no prima facie case, the accused will be acquitted. The case of Trambalal Bhat v Republic.

Answer 90

• Verifying Affidavits: Mostly accompany Plaints and they verify the correctness of the aver that the contents of the plaint are true. Also some petitions (family petitions). The contents of a verifying affidavit 1. You are competent to swear the affidavit (by virtue of being a party). 2. You have read and confirm that all averments are as per your instructions 3. Order 4 R 1 (f): No former suit on the same subject matter 4. Whatever deponed is true to your information • Supporting Affidavits: Used with applications such as the NOM, OS, Petitions (Constitutional Petitions). Facts are stated and evidence is adduced by attaching annextures. • Supplementary Affidavits • Affidavit of service: To prove service was done • Replying Affidavits: Used to reply to an allegation made in an application.

Answer 91

Statutory meeting is a meeting called by directors to consider the statutory report

Answer 92

• This is acquisition of land for public purpose or in the public interest • Article 40(3) Constitution 2010 stipulates that the right to own property is limited for reasons in the public purpose/public interest, provided there is prompt payment in full of just compensation • There are 3 clear cut stages in compulsory acquisition: pre-inquiry, inquiry and pose-inquiry

Answer 93

The overriding objective requires that each case should be treated proportionally in relation to size, importance and complexity of the claim and the financial situation of the parties. The court ought to consider the overriding objective when they make rulings, give directions and interpret procedural rules.

Answer 94

SCHEDULE 3 Unregistered interests which override registered dispositions Leasehold estates in land. Relevant social housing tenancies. Interests of persons in actual occupation. Easements and profits a prendre. Customary and public rights. Local land charges. Mines and minerals. Miscellaneous.

Answer 95

• LAND VALUER: • ARCHITECTS AND QUANTITY SURVEYORS • LAND SURVEYORS • PHYSICAL PLANNERS • ENVIRONMENTAL IMPACT ASSESSMENT EXPERTS

GENERAL KNOWLEDGE Flashcards

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