REVISION QUESTIONS
QUESTION ONE
“Both parliament and courts of law have in various ways attempted to
control delegated legislation however, neither organ can effectively do so by
reason of inherent and operational weaknesses” Discuss”
Suggested
solution:
This
statement is a correct observation of the prevailing circumstances. This is
because in the first instance parliamentary safeguards or mechanisms are
ineffective.
·
Parliament delegates legislative power to
specific persons or bodies, for example governments, ministers, professional
bodies, local authorities and statutory bodies.
·
Parliament prescribes the scope and procedure of
law making. The delegates can only exercise their legislative power in
accordance with such scope and procedure.
·
The enabling or Parent Act may require or insist
that the draft legislation be circulated to interested parties of comments for
example by-laws.
·
The enabling or Parent Act may require or
provide that the rules and regulations made may be laid before the minister
concerned for approval.
·
Under section 27(1) of the Interpretation and
General Provisions Act, (Cap 2), unless otherwise provided all delegated
legislation must be published in the Kenya Gazette before coming into
operation. However, the date of commencement may be backdated.
·
Under section 34 (1) of the Interpretation and
General Provision Act, Cap 2, unless otherwise provided delegated legislation
must be laid before parliament for approval. However, parliament is empowered
to annul the rules by resolution to the effect.
·
Judicial control
Courts of law attempt to control delegated legislation through the
doctrine of UltraVires, which literally means beyond the powers. A court
of law is empowered to declare delegated Legislation ultra vires where
upon the rules become null and void and therefore in operative.
A court of law may declare delegated legislation substantively or
procedurally UltraVires.
·
Substantive ultra vires
A court of law may declare delegated legislation substantively ultravires
if on application it satisfied that.
o The
delegate has exceeded the power prescribed by the enabling or Parent Act. o The delegate acted unreasonably.
o The
delegate exercised his powers for a purpose other than that for which the power
was conferred.
·
Procedural ultra vires
The procedure of law making prescribed by the enabling or Parent Act
is mandatory and must be complied with by the delegate. Delegated legislation
made without compliance with the procedure thereby prescribed is procedurally
defective and may be declared procedurally ultra vires if challenged
before a court of law. In Maina andMwangi V. R (1950) the appellants
were convicted by Resident Magistrates Court in Nairobi for overcharging a hair
cut contrary to the Defence Control Regulations 1948. These regulations
empowered the price controller to fix charges for various services including a
hair cut. He had fixed the price of a haircut at 50 cent. The appellants had
charged Sh.1. On appeal, the appellants argued that their conviction and
sentence was null and void as the rules under which they had been convicted
were procedurally defective in that they had not been published in Government
Gazette as required by law. Since the rules were procedurally defective they
were declared procedurally ultra vires and the appellants conviction and
sentence was set aside.
Courts of law cannot effectively control delegated legislation by
reason of their passive nature. Secondly, an application must be made to the
court and the applicant must at the very least discharge the burden of proof.
QUESTION TWO
Write briefly on:
(a)
Court Martial
(b)
Industrial Court.
Suggested solution:
Court Martial
Establishment: it is established by section 85 (1) of the
Armed Forces Act as a subordinate court.
Composition: the court consists of a presiding officer who
sits with not less that two other persons or not less than four others if an
officer is being tried or where the maximum penalty for the offence is death.
The court is assisted by a Judge/Advocate who advises on questions of
procedure.
Jurisdiction: it exercises original jurisdiction in criminal
cases relating to offences committed by the members of the armed forces within
its jurisdiction e.g. mutiny, disobeying lawful order or desertion.
The court
had jurisdiction to impose the following sentences:
·
Imprisonment
·
Fine
·
Dismissal from the armed forces
·
Reprimand
·
Reduction of rank
·
Capital punishment
A decision of the court may be appealed against in the High Court.
The convict may appeal against conviction or sentence or both.
Industrial Court.
Establishment: it is established under section 14 (1) of the
Trade Disputes Act. It was established in 1964.
Composition: it is presided over by judge appointed by the
president. The judge sits with two other persons selected by him from a panel of
four persons appointed by the minister for labour in consultation with COTU and
Federation of Kenya Empoyers. At the moment there are two industrial court
judges.
Jurisdiction: it exercises original
jurisdiction in civil matters, namely, industrial disputes for example,
employers and employees. Disputes may be referred to the court by the minister
for labour or a registered trade union. Decisions of the court are known as AWARDS
and are final i.e. cannot be appealed against, stayed or reviewed.
·
An award must be published in the Kenya Gazette
where upon it becomes effective.
·
The Industrial court maintains a register of all
collective agreements registered with it.
·
The principal function of the industrial court
in determining industrial disputes is to promote industrial harmony.
QUESTION THREE
State and explain the various types of offers
Suggested
solution:
·
Cross offers
This is a phenomenon whereby a party submits an offer to another who
has already dispatched a similar offer and two offers cross in the course of
transmission. No agreement arises between the parties for lack of consensus
ad idem.
·
Counter-offer:
This is the variation or modification or change of the terms of the
offer by the offeree. The offeree in such a case gives a qualified or
conditional acceptance which is not an acceptance in law. A counter offer is an
offer in its own right and if accepted by other offeror, an agreement arises.
Effect of a counter offer
The legal effects of a counter offer is to terminate the original
offer. It therefore remains as the offer. In Hyde V. Wrench (1940). On
June 6th the
defendant made a written offer to sell a farm to the plaintiff for 1000 pounds
on 8th June the plaintiff wrote back accepting to buy
the land for pound 950. On June 27th the
defendant wrote refusing the pound 950. On June 29 the plaintiff wrote accepting
to pay 1000 pound for the farm but the defendant declined. It was held that
there was no agreement between the parties as the plaintiff counter offer of
950 terminated the original offer of the defendant which therefore did not
exist when the plaintiff purported to accept it. An offer differs from an
inquiry or request for information.
Standing offer
This is an offer which arises when a persons tender to supply goods
or services is “accepted” by the other party. Such “acceptance” is not an
acceptance in a legal sense. In converts the tender to a standing offer for the
duration specified and the offeror is bound to supply the goods or services
whenever requested by the offeree. However, a standing offer may be revoked by
the offeror or at any time before an order or requisition is made unless the
parties have by a separate contract agreed that the offeror is to keep his
standing offer open. Such a contract is referred to as an “option.”
In Great Northern Railway Company V. Witham
the plaintiff company invited tenders for the supply of “stores” for 12 months.
The defendants submitted a tender indicating his desire to supply the stores
for 12 months. Such quantities as required by the company. The plaintiff
company accepted the defendants tender and subsequently made a requisition for
stores within the 12 months but the defendants failed to supply and was sued.
It was held that the defendant was liable in damages for breach of contract as
his standing offer had been accepted by the railway company
QUESTION FOUR
In relation to partnership law: discuss
(a)
Registration of a limited partnership
(b) In capacities of a limited partner
Suggested
solution:
(a)
Under the provisions of the Limited Partnership
Act a limited partnership must be registered with the registrar of companies.
To facilitate registration, a memorandum containing the following particulars
must be delivered to the registrar:
·
Name of the firm
·
General nature of the business o Principal place of business
·
Full name of each partner
·
The term, if any, for which the partnership is
entered into at the date of its commencement.
·
A statement that the partnership is limited and
a description of every limited partner.
·
The sum contributed by each limited partner and
whether paid in cash or otherwise.
If during the subsistence of a limited partnership any change occurs
in the afore mentioned particulars, a statement to that effect must be
delivered to the registrar within 7 days of the change.
If a
limited partnership is not registered, it is deemed to be a general
partnership.
(b)
·
Cannot withdraw or receive back his interest
during the currency of the firm.
·
May not take part in the management of the firms
business. If he does, he becomes a general partner for the duration he acted
and may be held personally liable.
·
does not bind the firm
·
Cannot dissolve the partnership by notice.
·
His death of bankruptcy or insanity does not
lead to dissolution.
·
Charging of his interest for a private debt does
not lead to dissolution.
·
Unless otherwise provided the firms affairs are
wound up by a general partner.
·
A person may be admitted as partner without
consent of the limited partner.
QUESTION FIVE
(a)
Why is it important to determine when property
in goods passes from seller to buyer?
(b)
What are the rules that govern the passing of
property?
Suggested
solution:
(a)
·
It is the essence of the contract of the sale of
goods that property in the goods pass to the buyer.
·
It determines when risk in the goods pass to the
buyer hence the party is liable in the event of loss or destruction.
·
It determines the remedies available to the
parties, for example, the seller can only sue for the price after property in
the goods had passed.
(b) Property
in goods passes to the buyer at different times in different contracts hence
the passage of property is governed by the following rules:
·
Sale of unascertained goods
Under section 18 of the Act, where there is a contract for the sale
of unascertained goods, property passes to the buyer when the goods are
ascertained.
·
Sale by auction
Under section 58 (1) of the Sale of Goods Act where there is a sale
by auction, property passes to the buyer when the auctioneer announces its
competition by the fall of the hammer, or in such other customary manner. Until
the hammer falls, the bidder may retract his bid.
·
Sale by reservation
Under section 21 (1) of the Act, where there is a contract for the
sale of specific goods or where goods are subsequently appropriated to the
contract but the seller reserves the right of disposal of the goods until
certain conditions are fulfilled, property in the goods pass to the buyer when
the conditions imposed by the seller are fulfilled.
·
Sale by description
Under
section 20 (e) (i) of the Act where there is a contract for the sale of
unascertained goods by description, property in them passes to the buyer when:
o Goods of that description, o In a deliverable state,
o Are unconditionally appropriated to the
contract,
o
By the buyer with consent of the seller or by
the seller with consent of the buyer.
·
Sale by approval or on sale or return
Under section 20 (d) of the Act where goods are delivered to the
buyer on approval or on sale or return or other similar terms, property in them
passes to the buyer.
·
When he signifies his approval or acceptance or
·
When he does any other act adopting the
transaction e.g. reselling or pledging the goods or
·
When he retains the goods after expiration of
the stipulated or reasonable time without signifying his rejection.
·
Unconditional sale of specific goods in a
deliverable: under section 20 (d) of the Sale of Goods Act, where there is an
unconditional Sale of Specific goods in a deliverable state, property passes to
the buyer when the contract is made.
·
Sale of specific of goods to be put into a
deliverable state: under section 20 (b) of the Act where there is
a contract for the sale of specific goods and the seller if bound to do
something for the purpose of putting the goods into a deliverable state,
property in them passes to the buyer when they are put into a deliverable state
and he is notified.
·
Sale of specific goods to the weighted, measured
or tested: under section 20 (c) of the Act, where there is a contract for the
sale of specific goods but the seller is bound to weigh, measure, test or do
some other act or thing for the purpose of ascertaining the price, property in
the goods passes to the buyer when they are weighted, measured, tasted, or that
other thing is done and the buyer is notified.
QUESTION SIX
Discuss the liability of parties to a bill of
exchange.
Suggested
solution:
Under the
provisions of the Bills of Exchange Act,
·
A bill of itself does not operate as an
assignment of funds in the hands of the drawee available for payment of the
bill. The drawee of a bill who does not accept it is therefore not liable on it
(53).
·
The acceptor of a bill, by accepting it
according to the tenor of his acceptance engages that he will pay it according
to the tenor of his acceptance is precluded from denying to a holder in due
course.
·
The existence of the drawer, the genuineness of
his signature, and his capacity and authority to draw the bill.
·
In the case of a bill payable to the drawers
order, then the capacity of the drawer to endorse, but not the genuineness or
validity of his endorsement.
·
In the case of the bill payable to the order of
a third person, the existence of the payee and his capacity to endorse, but not
the validity or the genuineness of his endorsement.
The drawer
of a bill by drawing it
·
Engages that on due presentment, it shall be
accepted and paid according to its tenor, and if it be dishonoured he will
compensate the holder or any endorser who is compelled to pay it, so long as
the requisite proceedings on dishonour by duly taken.
·
Is precluded for denying to a holder in due
course the existence of the payee and his capacity to endorse.
The
endorser of a bill by endorsing it.
·
Engages that on due presentment, it shall be
accepted and paid according to its tenor, and if it be dishonoured he will
compensate the holder or subsequent endorser who is compelled to pay it so long
as the requisite proceedings on dishonour be duly taken.
·
Is precluded from denying to a holder in due
course the genuineness or regularity in all respects of the drawers signature
and all previous endorsements.
Is precluded from denying to his immediate or
subsequent endorsee that the bill was at the time of his endorsement a valid
and substituting bill, and that he had then a good title thereto.
QUESTION SEVEN
a.
What are the advantages from a legal point of
view of converting an unincorporated association to a corporation?
b. Discuss
the doctrine of ultra vires in relation to companies
Suggested
solution:
(a)
By incorporating a partnership, it becomes a
company limited by shares and certain advantages accrue there from:
·
Limited Liability: Members’
liability for debts and other obligations is limited by shares. They are not
liable to pay more.
·
Perpetual succession: the
death of a member or members of the corporation has no effect on its existence.
This encourages investment.
·
Owning of property: the
property of a corporation does not belong to its member. The company has
capacity to invest to promote its profitability.
·
Suing or being sued: members
are not bound to sue to remedy wrongs done to the company and cannot generally
be sued for the wrongs of the company.
·
Capacity to contract: the fact
that a company can enter into contractual relationships means that it can
engage in commercial transactions for the benefit of its members and society.
·
Wide capital base: compared
to other forms of business associations registered companies have the widest
capital base by reason of the wide spectrum of membership.
·
Qualified management:
companies are managed by directors elected by members. Members have the
opportunity to elect qualified persons as managers.
·
Transferability of shares: under
the Provision of the Companies Act the shares or other interest of any member
shall be movable property transferable in manner provided by the articles.
Company shares are transferable, thus membership keep on changing from time to
time and the company could take advantage of the entrepreneurial skills of new
members.
·
Borrowing by floating charge: a
registered company is free to utilize the facility of floating charge to
borrow. This is an equitable charge securing a debenture on the assets of a
going concern but which remain dormant until crystallization. A floating
charge:
o Enables companies with no fixed assets to borrow
o Enhances
the borrowing capacity of companies with fixed assets. o Enables companies to use future assets as
security.
o Does not interfere with the ordinary business of
the company
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