SOURCES OF LAW

DEF
LAW
a. A system of rules usually enforced
through institutions.
b. Law is an instrument, which regulates
human conduct or behavior.
NB: The state therefore maintains law and
order
1
, ensures peace and social security.
30-Jan-24
CONT’
a) Law is a general rule of external human
action enforced by sovereign political au-
thority
b) Law is the body of principles recognized
and enforced among members of a given
state.
c) Law is a rule of human conduct imposed
upon and enforced among members of a
2 given state.
30-Jan-24
B} Constitution
Basic rules and principles by which a society has resolved
to govern itself or regulate its affairs. It contains the agreed
contents of the political system. It sets out the basic struc-
ture of the government. A constitution may be written or
unwritten.
C} Legislation
Legislation is the process of enacting and passing of laws.
Laws which are in the process of being enacted are also
called legislations.

3
30-Jan-24
PURPOSE OF LAW
 To regulate the conduct or behavior of persons
 To provide justice of the members of society
 To maintain the political and economic stability
 To protect the fundamental rights and freedoms of
individuals
 To establish the procedures and regulations regard-
ing dealing among individuals
 To maintain the peace and security in the country

4
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 TYPES OF LAW
 Public law and private law
 Civil and criminal law
 Procedural and substantive law
 International law

5
30-Jan-24
THE KENYAN COSTITUTION
This is a body of basic rules and principles by which
a society has resolved to govern itself or regulate its
affairs. It contains the agreed contents of the politi-
cal system. It sets out the basic structure of the
government.
Constitutions may be classified in various ways –
1.written and unwritten
2.Republican and monarchial
3.Presidential
6 and parliamentary
30-Jan-24

4.Rigid or flexible
CONT’
The Kenyan constitution is written.it was enacted by
the British parliament in 1963 for purpose of grant-
ing Kenya independence. It has been amended many
times.
Section 3(1) (a) of the judicature act recognizes the
constitution as a source of law of Kenya.
The independence constitution was enhanced on 12
December 1963.
The constitution of Kenya 2010 contains the follow-
ing 18
7
parts: 30-Jan-24
CONT’
Chapter I – Sovereignty of the Kenya People and
Supremacy of the constitution
Chapter II – The Republic
Chapter III – Citizenship
Chapter IV – the bill of Rights
Chapter V – land and Environment
Chapter VI – leadership and Integrity
Chapter
8 VII – representation of the people
30-Jan-24

Chapter VIII – The legislature

CONT’
Chapter IX – the executive
Chapter X – the Judiciary
Chapter XI – Devolved Government
Chapter XII – Public finance
Chapter XIII – The public Service
Chapter XIV – National security
Chapter XV – Commissions and independence offices
Chapter XVI – Amendment of the constitution
Chapter
9 XVII – General provisions 30-Jan-24

Chapter XVII – Transition and Consequential Provi-

THE PROCESS OF LEGISLATION
Most laws in Kenya emanate from an act of
parliament. These are introduced into parlia-
ment as bills.
The bill may be either one concerning the
county government (which affects the func-
tions of the county government, relates to elec-
tion of members of a county assembly or a
county executive or affects county finances) or
one 10not concerning county government. 30-Jan-24
CONT’
A bill that does not concern the county government is con-
sidered only in the national assembly. A bill concerning the
county government is considered in both the National As-
sembly and the senate.
Bills
A bill is draft law. It is a statute in draft. Bills may be classi-
fied as:-
a. Government and private members bill.
b. Public and private bills.
Government bill- this is a bill mooted by the government
which11it introduces to the National assembly for debate
and enactment to law. All government bills are drafted by 30-Jan-24
CONT’
a. Private members bill – this is a bill mooted by a
member of parliament in his capacity as such
which he introduces to the national assembly for
debate and passage to law e.g. the Hire purchase
Bill of 1968
Public bill – this is a bill that seeks to introduce
or ament law applicable throughout Kenya. It
may be government or private members.
Private bill- this is a bill that seeks to introduce
or amend law applicable in some parts of Kenya
or12 it regulates a specific group of persons.30-Jan-24
COMMON LAW
The substance of common law and doctrines
of equity
THE COMMON LAW :-A branch of England
which was developed from customs usages
and practices of the English people.
EQUITY : That branch of England law which
was developed by the then various Lord
chancellor’s courts to supplement the com-
mon13
law. It was developed to mitigate the
30-Jan-24
CONT’
This is applicable only on civil cases where
one or more parties is subject to or af-
fected by it. In so far as it is applicable
and is not repugnant to justice and moral-
ity or inconsistent with any other law.
African customary law differs from tribe
to tribe.
Jurisdiction of customary law
14
30-Jan-24
CONT’
A claim under customary law means a claim is concerning;
 Land held under customary tenure
 Marriage, divorce, maintenance or dowry
 Seduction or pregnancy of an un-married woman or girl
 Enticement of or adultery with married woman
 Matters affecting status particularly status of women
widows and children including guardianship, custody
adoption and legitimacy
 Interstate succession and administration of interstate es-
tate as long as the above is not governed by any written
law.
15
30-Jan-24
 ISLAMIC LAW
This is a very limited source of law in
Kenya. It is applied under the following
conditions;
a)Only in kadhi’s courts
b)When all parties profess the Islamic re-
ligion
c)Only as to questions of Islamic law re-
lating to personal status e.g. marriage,
16
divorce, and inheritance issues. 30-Jan-24
 KADHI’S COURT
Established under the Kadhi’s court act
(chapter 11 laws of Kenya) and presided
over by Chief Kadhi. It has jurisdiction to
determine questions of Islamic law relat-
ing to personal status, marriage, divorce
and inheritance in proceedings in which
all the parties profess the Islamic faith and
submit to the jurisdiction of the court.
17
30-Jan-24
HIGH COURT
-The high court is a superior court of record made up
of such number of judges as prescribed by an act of
parliament.
-The high court has unlimited original appellate juris-
diction in criminal and civil matters; the jurisdiction to
determine whether fundamental rights and freedoms
of the individual has been deemed, violated, in-
fringed or threatened; the jurisdiction to determine
appeals from tribunals set up for the purpose of im-
peachment
18
of the president; to interpret the pro-
posed constitution as well as to conferred by statute
30-Jan-24
THE COURT OF APPEAL
This is a superior court of record made of twelve
(12) judges who from among themselves elect their
administrative head to be the president of the court
of appeal.
The court of appeal hears appeals from the high
court as well as from courts and tribunals pre-
scribed by national statute.
It has only appellate jurisdiction in both civil and
criminal cases. It has prescribed over by the judges
of appeal
19 who are appointed by the president.30-Jan-24
THE SUPREME COURT
It is the highest court in Kenya. It is a superior
court of record made up of seven judges in-
cluding the chief justice and the deputy chief
justice. It has jurisdiction to hear and deter-
mine disputes arising from presidential elec-
tions. It has appellate jurisdiction from the
court of appeal in cases of the interpretation
or application of the constitution.
20
30-Jan-24
 DIAGRAMATIC REPRESENTATION OF THE SOURCES OF LAW OF KENYA

WRITTEN

SOURCES

UN-
WRITTEN
SOURCES

21
30-Jan-24
Sources of law in Kenya may be classified
as: -
1, written and un written sources
2, Principle and subsidiary sources
Principle are those laws applicable
throughout Kenya, the regulate all per-
sons in Kenya. While subsidiary are laws
which regulate certain categories of peo-
ple in Kenya in relation to certain matters
22

e.g. Islamic law, Hindu law.

30-Jan-24
THE ORGANISATION OF THE JUDICIARY
a) THE KENYA LEGAL SYSTEM
b) THE KENYAN COURT STRUCTURE
Administration of the court means the en-
forcement of laws by the courts of law. It is the
duty of the state to pass the laws and to ad-
minister them fairly by the established court
system. The Kenyan court structure has been
established according to the following provi-
sions.
23
30-Jan-24
CONT’
I. The constitution of Kenya
II.The judicature act (cap 8)
III.The magistrate’s courts act (cap10)
IV. The Kadhi’s court act (cap 11)
THE KENYAN JUDICIARY
The judiciary consists of the courts and all officers
of the courts including the chief justice, the at-
torney general, judges and magistrates. The judi-
ciary determines disputes which arise between
individuals, and those between individuals and
24
the state. The jurisdiction of a court may either
30-Jan-24
CONT’
 The original jurisdiction means the court has
power to hear cases at first instance.
 The appellate jurisdiction is the power to
hear cases on appeal.
 The Kenya court of appeal has only appellate
jurisdiction whereas District magistrate
courts of the 2nd and 3rd class have only origi-
nal jurisdiction
 The
25
High court of Kenya has both original
and appellate jurisdictions. 30-Jan-24
CONT’
Appointment of judges
Whereas the president appoints the representa-
tives of the lay persons, such appointments must
be approved by the national assembly.
Appointment of judges is on the strength of their
varying degrees of experience either as superior
court judges, distinguished academic or legal
practitioners or on the basis of their experience
in their relevant field.
26
30-Jan-24
CONT’

Judges enjoy security of tenure, have their

salaries charged on the Consolidated Fund, can-
not have their salaries and benefits varied to their
disadvantage and are immuned from any action
or suit in respect of anything done in good faith
exercising their judicial function.

Removal of judges from office

The new constitution establishes the judicial ser-
vice commission as the body mandated to peti-
tion
27 the president to remove a judge from office.
30-Jan-24
CONT’
The petition may be initiated by the commission
or by any person aggrieved by the conduct of a
judge.
Within fourteen (14) days from the date of re-
ceipt of the petition, the president is obliged to
suspend the judge against whom the petition is
made and appoint a tribunal to investigate the
conduct of the judge. the tribunal is then re-
quired to expeditiously inquire into the petition
and make binding recommendations to the pres-
28
ident. 30-Jan-24
CONT’
During suspension, the remunerations and
benefits paid to the judge are adjusted to
one-half until the judge is removed from, or
reinstated in office. A judge aggrieved by
the recommendations of the tribunal may
appeal to the supreme court within ten (10)
days from the date the tribunal makes its
recommendations.
29
30-Jan-24
 THE STRUCTURE AND JURISDICTION OF
THE COURTS
THE SUPREME COURT
It is the highest court in Kenya. It is a superior
court of record made up of seven judges in-
cluding the chief justice and the deputy chief
justice. It has jurisdiction to hear and deter-
mine disputes arising from presidential elec-
tions. It has appellate jurisdiction from the
court 30 of appeal in cases of the interpretation
30-Jan-24

or application of the constitution.

THE COURT OF APPEAL
This is a superior court of record made of
twelve (12) judges who from among them-
selves elect their administrative head to be the
president of the court of appeal.
The court of appeal hears appeals from the
high court as well as from courts and tribunals
prescribed by national statute.It has only ap-
pellate jurisdiction in both civil and criminal
cases.
31 It has prescribed over by the judges of
30-Jan-24

appeal who are appointed by the president.

 HIGH COURT
It is a superior court of record,made up of of judges
as prescribed by an act of parliament. The high
court has unlimited original appellate jurisdiction in
criminal and civil matters; the jurisdiction to deter-
mine whether fundamental rights and freedoms of
the individual has been deemed, violated, infringed
or threatened; the jurisdiction to determine appeals
from tribunals set up for the purpose of impeach-
ment of the president; to interpret the proposed
constitution as well as to conferred by statute
32
30-Jan-24
 Other courts with status of high court
a.Employment and Labour courts
It has been established to hear and determine
employment and Labour issues. It is presided
over by judges appointed by the president and
eight (8) other members appointed by the Min-
ister of Labour.
Its function is to settle trade disputes generally
and trade in essential services. It may also de-
termine disputes arising out of employment
contracts, and claims arising out of work re-
33
lated injuries and occupational diseases. 30-Jan-24
 a. Land and environment court.
Although these are yet to be established,
parliament may also establish a court with
the status of high court to hear and deter-
mine disputes relating to the environment
and occupation of and title to land.
b. Surbodinate courts
Subordinate courts include the Magistrate courts,
the kadhi’s courts, the court martials, the chil-
dren’s courts and the tribunals which are estab-
lished by the dint of a statute
34
30-Jan-24
 CONT’
The Magistrates courts
The jurisdiction of these courts is determined on terri-
torial and pecuniary basis. They are presided over by
magistrates.
The magistrate’s courts are in order of hierarchy.
1. The chief Magistrates court being the highest
2. Followed by the senior principle magistrates court
3. Principle magistrate’s court
4. Senior resident magistrate’s courts
5. Resident magistrate’s courts
6. The district magistrate’s courts being the lowest in the hi-
erarchy
35
30-Jan-24
 CONT’
Kadhi’s court
Established under the Kadhi’s court act
(chapter 11 laws of Kenya) and presided
over by Chief Kadhi. It has jurisdiction to
determine questions of Islamic law relat-
ing to personal status, marriage, divorce
and inheritance in proceedings in which
all the parties profess the Islamic faith
and submit to the jurisdiction of the
36
court. 30-Jan-24

The children’s court

 CONT’
The children’s court
This court was established in 2001; the court
deals with cases concerning children. It hears
cases concerning parental responsibility, chil-
dren institutions, custody and maintenance,
orders for the protection of children, children
in need of care and protection. It also hears
cases where a person has been charged with
an offence under the children’s act. It however
37
does not hear cases where the child is charged
with murder, or jointly with adults. 30-Jan-24
 Tribunals
These are quasi-judicial bodies established
piecemeal to deal with specific matters. The
more prominent tribunals are:-
a)Rent tribunals- these deal with matters concerning
landlord and tenant relation.
b)The public procurement tribunals- this deals with
matters concerning procurement by government
and government owned entities.
The court Martial
Section 56(1) of the Kenyan constitution
38
empowers the parliament to establish court
30-Jan-24

martial.
CONT’
 Court Martial are military courts formed from time
to time to try persons accused of offences under
military law.
 These courts may be established by the chief of
General staff.
 These courts are not part of ordinary courts.
 Court martial consist of a presiding officer and at
least 2 other members
When an officer is to be tried or the minimum
penalty is capital punishment, then the court com-
39
prises of the presiding officer not less than 4 other
30-Jan-24

members
 CONT’
The following cases can be tried at the court
martial:
a) Insubordination
b) Cowardice
c) Aiding the enemy
d) Neglect of duty
e) Mutiny
-There is no right to appeal to the high court against
decisions of a court martial unless a case involves a
constitutional question.
40
-When such a case is heard in the high court, there
30-Jan-24

will be no second appeal.

 JUDICIAL OFFICERS: CHIEF JUSTICE(CJ) /PRESIDENT, DEPUTY CJ-
JUDGES

THE COURT OF APPEAL

JUDICIAL OFFICERS: PRESIDENT, JUDGES

THE HIGH COURT

JUDICIAL OFFICERS: PRINCIPLE JUDGE, JUDGES

THE KADHI’S COURT COURT MARTIALS, OTHER COURTS

AND TRIBUNALS
JUDICIAL OFFICERS: CHIEF KADHI,
KADHI’S JUDICIAL OFFICERS: JUDGES, CHAIRMAN
AND MEMBERS

RESIDENT MAGISTRATES COURTS

JUDICIAL OFFICERS: CHIEF MAGISTRATE, SENIOR PRINCIPLE
MAGISTRATE, PRINCIPLE MAGISTRATE, SENIOR RESIDENT
MAGISTRATE, RESIDENT MAGISTRATE

DISTRICT MAGISTRATES COURTS 1ST CLASS DISTRICT MAGISTRATES COURT 2ND CLASS

JUDICIAL OFFICERS: MAGISTRATE JUDICIAL OFFICERS: MAGISTRATE

41
30-Jan-24

DISTRICT MAGISTRATE COURT 3RD CLASS

LAW OF CONTRACT
DEF
Contract
I. A contract is a written or oral (or partly oral)
promise exchanged for another promise or for a
performance that the law will enforce.
II.A contract is a legally binding or valid agreement
between two parties. If the law will not enforce it,
then it Is not legally binding contract.
III.The law will consider a contract to be valid if the
agreement
42 contains the following elements
30-Jan-24
 CONT’
 Offer and agreement-an agreement is formed
when one party accepts the offer of another and
involves a meeting of the minds.
 Consideration- both parties must have provided
considerations i.e., each side must promise to give
or do something for the other.
 Intention to create legal capacity- the parties must
have intended their agreement to have legal con-
sequences. The law will not concern itself with
purely domestic or social agreements. In some
43
cases, certain formalities (that is, writing) must be
30-Jan-24

observed.
CONT’
 Capacity- the parties must be legally capable
of entering into a contract.
 Consent- the contract must have been en-
tered into freely. Consent may be vitiated by
depress or undue influence.
 Legality- The purpose of the agreement
must not be illegal or contrary to public
policy.
44
30-Jan-24
ENFORCEABILITY OF A CONTRACT
1.void contracts
A void contract is one where the
whole transaction is regarded as a nullity. It
means that at no time has there been a
contract between the parties. Any goods or
money obtained under the Agreement must
be returned where items have been resold
before the contract was avoided, the origi-
nal
45 owner will not be able to reclaim them.
30-Jan-24
CONT’
2. voidable contracts
A contract which is voidable operates in
every respect as a valid contract unless
and until one of the parties takes steps
to avoid it. Anything obtained under
the contract must be returned, in so
far as this is possible. if goods have
been resold before the contract was
46
avoided, the original owner will not be
able to reclaim them. unenforceable
30-Jan-24
CONT’
An unenforceable contract is a valid contract
but it cannot be enforced in the courts if
one of the parties refuses to carry out its
terms. Items received under the contract
cannot generally be reclaimed.

47
30-Jan-24
 CONT’
TYPES OF CONTRACTS
Contracts may be classified into two broad categories or
classes:
I. Contracts by deed
A deed is a formal legal document signed, witnessed
and delivered to effect a conveyance or transfer of
property or to create a legal obligation or contract
II. Simple contracts
Contracts which are not deeds are known as simple con-
tracts. They are informal contracts and may be made in
any way –In writing, orally or they may be implied from
conduct,Another
48
way of classifying contracts is accord-
30-Jan-24

ing to whether they are bilateral or unilateral: -

 CONT’
i. Bilateral contracts
A bilateral contract is one where a
promise by one party is exchanged for a
promise by the other. The exchange of
promises is enough to render them both en-
forceable thus in a contract for the sale of
goods, the buyer promises to pay the price
and the seller promises to deliver the goods.
49
30-Jan-24
 CONT’
i. Unilateral contracts
A unilateral contract is one where one
party promises to do something in return for an
act of the other party, as opposed to promise
e.g., where X promises a reward to anyone who
will find his lost wallet. The essence of the unilat-
eral contract is that only one party X is bound to
do anything. No one is bound to search for the
lost wallet, but if y, having seen the offer recovers
the wallet and returns it, he/she is entitled to the
50
reward. 30-Jan-24
CONT’
The first step in a contract question is always to
make sure that a contract actually exists. There
are certain elements that must be present for a
legally binding contract to be in place.
Offer
The first of the six essential elements of a contract is
the offer. An offer is tentative until it is accepted.
A tentative offer is made when a potential guest
informs the desk clerk that he or she is inter-
ested in renting a room.
51
30-Jan-24
CONT’
An offer may be conditional. The offer is binding during the
during the conditional period. If the conditions are met
or waived, the contract becomes firm. If the conditions
are not met or waived prior to the expiry date of the
condition the offer is no longer binding.
Most offers stipulate that if there is failure to meet condi-
tions that the offer or will not waive, then the offer will be
null and void and any deposit moneys will be returned with
(or without) interest
The first step in a contract question is always to make sure
that a contract actually exists. There are certain elements
that must
52
be present for a legally binding contract to be in
place. 30-Jan-24
CONT’
Offer
The first of the six essential elements of a contract is the of-
fer. An offer is tentative until it is accepted. A tentative
offer is made when a potential guest informs the desk
clerk that he or she is interested in renting a room.
An offer may be conditional. The offer is binding during the
during the conditional period. If the conditions are met
or waived, the contract becomes firm. If the conditions
are not met or waived prior to the expiry date of the
condition the offer is no longer binding.
Most offers stipulate that if there is failure to meet condi-
tions that the offer or will not waive, then the offer will be
53
null and void and any deposit moneys will be returned with
30-Jan-24

(or without) interest

Lapse
An offer does not remain open indefinitely. It either lapses
or is revoked if it is not first rejected, accepted or coun-
tered pursuant to law. An offer lapses when: -
1. The offeree fails to accept by a deadline.
2. The offeree fails to accept the offer within a reasonable
time if there is no deadline
3. A party dies, becomes mentally incompetent, or other-
wise loses the capacity to make contracts prior to accep-
tance.
The first instance of lapse is clear. If an offer sets a deadline
for acceptance and none is received by that time the of-
54
fer lapses 30-Jan-24
CONT’
The second instance: If the offer sets no dead-
line for acceptance the offer will be good only
for a reasonable time. the definition of (rea-
sonable) depends on the subject matter of the
contract and the expectations of the parties
An offer to buy a shipment of bananas will
have a short-term than an offer to buy 400
mattresses because the former item (a con-
sumable product) has a shorter lifespan than
the 55latter item (a durable product). 30-Jan-24
CONT’
The third instance may also present difficulties. It is
not always easy to determine whether a party has
lost the mental capacity to make a contract.
Revocation
An offer may be revoked any time
prior to acceptance.
Offers may contain a clause making
them irrevocable for a certain time. Real estate
offers and offers to purchase businesses are
almost always irrevocable for a few days to give
the vendor time to consider whether to reject or
56
counter the offer from the purchaser. 30-Jan-24
Options
An option is an agreement by the offeror not to
revoke the offer for a given period. Until the option ex-
pires, the offeror cannot revoke the offer and must not
compromise the offeree’s option rights. An option pro-
vides time to deliver the offer to the offeree, as well as
reassurance to the offeree that the offer will not be re-
voked prior to the option deadline.
Invitation to treat
The phrase invitation to treat means that one
person is inviting other persons to make an offer. The
invitation to treat is not an offer, but merely an invita-
tion
57 to someone else to make an offer. For example, a
restaurant invites customers to treat by presenting a
30-Jan-24
CONT’
The phrase invitation to treat means that one per-
son is inviting other persons to make an offer.
The invitation to treat is not an offer, but merely
an invitation to someone else to make an offer.
For example, a restaurant invites customers to
treat by presenting a menu.
The offer is made when the customer of-
fers money for food. The offer is accepted when
the restaurateur agrees to supply the food.
58
30-Jan-24
ACCEPTANCE, REJECTION, AND COUNTEROFFER
Upon being presented with an offer, an offeree
may accept, reject or counter the offer. until the offer
has been accepted, there is no contract.
Acceptance is made by taking positive and un
ambiguous steps, either verbally or with an act.
Rejection may be effected by positive communica-
tion as well as by silence.
If the offeror amends a term to acceptance, the
change revokes the offer and the new proposal.

59
30-Jan-24
CONSIDERATION GRATUITOUS PROMISES AND SEALS
Consideration
Consideration and seals that stand in place of consideration, constitute
the third essential element of a contract. The price of a party pays for the
promise of the other party this is what is called consideration. While the term
price suggests a monetary payment, the consideration need not be monetary
in nature.
Gratuitous promises
Promises made without the consideration are gratuitous and the failure
to perform them generally has no remedy in law.
Seals
Promises made under the promisor’s seal are binding even in the ab-
sence of consideration. The seal is a device of document execution dating from
the days when only the clergy, lawyers and scribes were literate.
Consideration is not required because the solemn act of sealing proves
the promisor’s intention to be bound.
60
30-Jan-24
INTENTION TO CREATE A LEGAL RELATIONSHIP
Intention to create a legal relationship is the fourth essen-
tial element of a contract
Unless the parties intend to make a contract, there is no
contract
The contract has to state that the parties intend to be
legally bound or the intention may be from the contract of the
parties. Usually, the execution of the contract provides the neces-
sary evidence of intention.
Execution occurs when a party places his or her signature
or mark on the document or when a signing officer of a corpora-
tion signs on behalf of the corporation.
Unless required by the statute witnesses are not necessary,
but
61 may be helpful if and due as to execution later arises.
30-Jan-24
LEGAL CAPACITY
Not all people are completely free to enter int a valid contract. The
contracts of the groups of people listed below involve problem-
atic consent, and are dealt with separately as follows;
 People who have a mental impairment
 Minors
 Bankrupts
 Corporations (people acting on behalf of a company)
 Prisoners
Other capacity considerations
 Agents and principals
 Powers of attorney
 Spouses and cohabitants
62
 Business partners 30-Jan-24
OTHER ELEMENTS OF CONTRACT FORMATION
The requirement of writing
Except for certain types of contract, it is not a legal necessity that
the contract be in writing. Contracts are binding whether written
or oral, or partly written and partly oral.
There are certain types of contracts that must be in writing to be
enforceable. E.g. agreements on interest in land, to pay some-
one’s debt. etc. CONSENT
Entering into a contract must involve the elements of free will and
proper understanding of what each of the parties is doing. In other
words, the consent of each of the parties to a contract must be gen-
uine. Only where the essential element of proper consent
63
30-Jan-24
 CONT’
Only where the essential element of proper consent has
been given is there a contract which is binding upon the
parties. The ultimate consequences of established that
no proper consent was given to enter the contract are
matters dealt with when considering remedies for
breach of contract.
Proper consent may be affected by any of the following
matters;
 Mistake
 False statements
 duress
 undue
64 influence/ unconscionability.
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ILLEGAL AND VOID CONTRACTS
The law will not enforce all contracts. There are
some categories of contracts to be wary of.
Certain types of contracts of contracts are illegal
at common law, because they are contrary to the public
good these include contracts;
a.) to commit a crime, a tort or a fraud
b.) which are sexually immoral
c.) which prejudice public safety, including good rela-
tions with other states or countries
d.) which prejudice the administration of justice
e.) which tend to promote corruption in public life;
f.)
65
to defraud the revenue.
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 CONTRACT OF EMPLOYMENT
Definition of terms
Contract: written or spoken agreement, especially
one concerning employment, sales, or tenancy that is
intended to be enforceable by law.
Employment: the status of being paid after work.
Employee: a person employed for salary or wages.
Employer: a person or organisation that employs
people
An employment contract :Is a written,legal docu-
ment that lays out binding terms and conditions of an
employment relationship between an employee and
an employer.
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The employees duties to his or her employer are :
1. An employee has the duty to obey all his employers law-
ful orders .This is the biggest duty that an employee has
to his employer.
2. An employee must be loyal to his employer. This ensures
that he will not betray his employers confidence and trust
in him. he makes sure that he doesn’t disclose his em-
ployers business secrets or aid his employers competitors
to the detriment of the employer.
3. The employee must do the work assigned to him by his
superior (s) or boss for which he is being paid for.
67
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CONT’
4. The employee must not deliberately absent him-
self from work during working hours. If the em-
ployee must absent himself from work then he must
first seek permission from his employers in order to
do so.
5. The employee must use reasonable care in han-
dling or using his employers properties in order not
to cause un necessary damages to them .Also an
employee must use reasonable caution in perform-
ing duties assigned to him in order not to harm him-
68
self or cause unnecessary financial loss to his em-
30-Jan-24

ployer.
The duties of an employer to his employees
1. The employer has the duty to pay the employee for work based on
the agreed wage or salary. The only time the employer can decide
not to pay an employee or withhold the employees pay is when the
employee deliberately refuses to do the work assigned to him or
her.
2. The employer must make sure ha provides a safe and conducive
environment for the employee to work in.It should be free from
hazardous materials or anything that can cause physical harm, ill-
ness, or death of the employee. He must make sure that everything
the employee needs to perform the duty effectively and efficiently
is provided. Also he must make sure the employees with disabilities
are provided for with all the necessary help that they need in order
to 69be able to work without difficulties.
30-Jan-24
 CONT’
3. The employer must indemnify the employee for all ex-
penses or damages that crop up as a result of the em-
ployee performing his or her official duties. e.g employee
damages something during the course of doing official du-
ties and negligence was not the cause he is indemnified.
4. The employer should not discriminate against any of his
employees. It is against the law of every land to discrimi-
nate on bases of race, religion, colour, nationality, sex e.t.c
5. The employer must give the employees a fair chance to
voice out their grievances or complaints and must make
sure that he looks into the complaints brought forward by
the employees.
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TERMS IMPOSED BY THE STATUTE
THE RIGHTS OF EMPLOYERS AND WORKERS
Rights of employer
• The rights of an employer include:
• The right to employ a worker
• The right to discipline the worker
• The right to transfer the worker
• The right to promote the worker
• The right to terminate the employment of
the worker
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Rights of the employee
• The rights of the worker include the right to work
under satisfactory, safe and healthy conditions.
• Receive equal pay for equal work without distinction
of any kind.
• Have rest, leisure and reasonable limitation of work-
ing hours and period of holidays.
• Form or join trade unions.
• Be trained and retrained for the development of his
or her skills.
• Receive information relevant to his or her work.

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TERMINATION OF EMPLOYMENT
Termination of employment may be fair or unfair.
Fair termination
• Termination is fair on any of the following grounds:
• That the worker is incompetent or lacks the qualifi-
cation in relation to the work for which the worker is
employed.
• The proven misconduct of the worker.
• Redundancy. Due to legal restrictions imposed on
the worker prohibiting the worker from performing
the work which he or she is employed .
• An employer has a common law right to summarily
dismiss a worker without notice on the grounds of
73

gross misconduct. 30-Jan-24

 Unfair termination
 A workers employment is terminated unfairly if the
termination is due to his joining ,intention to join or
taking part in activities of a trade union.
 That the worker seek office as or is acting as work-
ers representative. That the worker has field a
complaint or participated in proceeding against the
employer for alleged violations.
 On grounds of the workers gender, race, colour,
ethnicity, origin, religion, creed, social, political or
economic status. In case a woman worker due to
the74 pregnancy of the worker or the absence of
30-Jan-24

worker from work during maternity leave.

 CONT’
 That the worker does not have the level
of qualification no required at the
commencement of his employment.
 Refusal or intention to refuse to work
was because the worker was taking part
in a lawful strike unless work was nec-
essary to prevent actual danger to
life ,personal safety or health or the
75

maintenance of plant and equipment.

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