2013 ORAL QSNS

CRIMINAL LITIGATION
1. Types of pleas acquit
Plea of not guilty
Plea of guilty
Autrefois acquit – where the accused was charged and acquitted of the similar charges under the
same facts
Autrefois convict – where the accused was charged and convicted of similar charges under
similar facts
Double jeopardy – where the accused was already charged of the same crime under the same facts
Pardon – the accused says that he was previously pardoned over the same crime

2. Difference between review n judicial review

Review is the reconsideration or re-examination of a decision so as to amend or alter it where its
desirable or necessary. It is a second look at a decision already made by the authority which made
it. Its done on certain grounds:- where there is discovery of a new and important matter or
evidence; where there is an error apparent on the face of the record, or for any other sufficient
reason. The discovery must be new, important, due diligence had been exercised so as not have
found it and it could not be produced before the decision in question was made.
Judicial review is an application made to a higher authority to review the decision made by a
subordinate authority. Its made to review the manner in which a decision was made.

3. Difference between judicial review n appeals

Judicial review is meant to ascertain the manner in which a decision was made. The court’s
exclusive concern is with the legality of the administrative action or decision in question. In
appeals, the court is concerned with the merits of a decision. The court substitutes its own
decision for that of some other body.

4. Duplicity of charges on a charge sheet

A charge is a formal written accusation or complaint against a person for an offence provided for
in law. It is drawn by a magistrate or a police officer and signed as required by law. Black’s Law
Dictionary defines duplicity of charges is the joining of two or more offenses in the same count of
an indictment. It is a legal requirement that a charge should not suffer from duplicity. Duplicity
occurs where the charge or count charges the accused of having committed two or more separate
offences the charge is barred for duplicity. Duplicity can be avoided where a statute creates
offences in the alternative, Section 86 of the Traffic Act provides for offences created in the
alternative e.g. causing death by driving a motor vehicle:
a) driving recklessly;
b) driving at high speed.
c) Driving in a manner dangerous to the public.
d) Leaving the motor vehicle on the road in a manner dangerous to the public.
All these are stated in the alternative so that you cannot be charged of two or more but only one
of the alternative.

5. Insanity proceedings
Insanity is any mental disorder, which is severe enough to prevent a person from having legal
capacity, and excuses the person from criminal or civil liability. Insanity arises in two instances:
 The first one is when it is alleged as a defence, that is, the person was insane at the time
of the act which now constitutes the offence.
  The second is what has been termed in other jurisdictions as procedural insanity, that is,
where the person, though sane at the time of the act, no longer enjoys the same degree of
sanity to such an extent as to render him incapable of understanding the charge and or
making his defence.

a) Procedure in insanity - sections 162-167 of the Criminal Procedure Code.

Section 162 – Court inquires as to the soundness of an accused’s mind if in the course of a trial the
accused is incapable of making his defence because of unsoundness of mind. If so, it postpones the
proceedings but where the court finds the accused fit to continue with the trial then the proceedings will
continue.
Section 163 – where the accused applies for bail, court may release him on condition that sufficient
security has been given that the accused will be cared for well and that he will be prevented from injuring
himself or any other person and that his presence in Court shall be guaranteed. Where bail is denied due
to insufficient security, the Court may order that the accused be retained in safe custody and then
transmits the Court record or a certified copy to the Minister for the President’s consideration.
The president upon consideration may order that the accused be detained in a mental hospital or other
suitable place of custody and the court shall issue a warrant which shall be sufficient authority for the
detention of the accused till the president makes a further order in the matter until the court which found
him incapable of making his defence orders him to be brought before it again in the manner subscribed in
Sections 163 and 1641.
The court will make such determination through the report of a medical officer. Where the medical officer
of a mental hospital or place of custody where the accused has been taken, finds the accused incapable of
making defence, the officer is to forthwith make a certificate to that effect to the Attorney General 2. The
AG in turn is required to inform the court whether the state intends to continue with the proceedings
against the accused or not3.
Where the AG indicates that he does not intend to continue with the matter, the accused is to be
discharged but that is not a bar to subsequent proceedings against the accused on the same facts. on the
other hand where the AG says otherwise, the accused shall be brought before court and the proceedings
will start a fresh as if the accused was brought to court for the first time 4.
Section 164 provides that subject to the report of the medical officer, the court may order that the accused
be brought before court and where the court finds that the accused is still incapable of making his defence
then the court shall act as if the accused was brought before it for the first time.
Section 166 is to the effect that where the court finds that the accused committed an offence but was
insane, so as not to be responsible for his acts or omissions 5, the court is to make a special finding to that
effect. The court is further required to submit the finding to the president who will make further orders for
instance the accused to be detained in custody or in any other suitable place. It is worth to note that the
burden of proving an averment of insanity lies upon the defence because in Section 11 of the Penal Code,
every person is presumed to be of sound mind until the contrary is proved. However, where the accused
does not raise the issue of insanity, the court will not make a finding under Section 166(1) of the Criminal
Procedure Code. However, the CPC does not outline a clear procedure to be adopted in situations where a
defendant refuses to raise and/or plead the defence of insanity. Section 167 of the Criminal Procedure
Code provides for situations where, although the accused is not insane but he is unable to understand
proceedings in court.

6. Elements of a crime

1
Ibid section 162 (5)
2
Section 163 (1)
3
Section 163 (2)
4
Ibid
5
S 12 of the penal code
 Actus reus – the prohibited act or omission. The prosecution must prove beyond reasonable doubt
that the accused has committed the prohibited act
Mens rea – the intention to commit a crime. Prosecution must show that the act was done
voluntarily and that there must have been some foresight of the consequences. No act is
punishable if it was done involuntarily e.g. while the person was sleepwalking or suffering from a
concussion or insanity. There are offences where liability is strict and mens rea doesn’t have to be
proved e.g offences under food drugs and chemical substances act. There are also offences where
actus reus need not to be proved, those under vicarious liability.

7. Difference between murder and manslaughter

In murder the accused must have been proved to have the malice aforethought to cause the death
of another whereas this isn’t the case in manslaughter.

8. Framing charges
Statement of the offence based on description of what offence has been committed.

Particulars are the words which will describe the offender and it will also briefly describe the
particulars of the offence. It will describe the property or goods which are the subject matter. If
the goods are specific, there will be a proper description of the goods. The particulars are
supposed to reveal the ingredients of the offence.

9. Forms in a prosecution file

(a) Initial report (d) Investigation diaries

(b) Documentary evidence – list of (e) Experts reports
exhibits and witnesses, (f) Witness statements
documentary exhibits (g) Copies of the charge sheet
(c) Accused’s records – his (h) Covering report
statements (i) Correspondences

10. Defence file

i. Instruction note ix. Copy of prosecution file
ii. Client attendance form x. Legal research – laws and cases to be
iii. Court attendance form relied on
iv. Charge sheet xi. Case strategy, defence case – statements
v. Legal opinion/brief made by the accused
vi. Fee notes xii. Defence witnesses statements
vii. Copies of documents for bail application xiii. List of authorities cause list
viii. List of Accused’s property when xiv. correspondences
arrested

11. Difference between n a decree and an order

A decree is extracted from a judgment whereas an order is extracted from an interim application.

12. Difference between judgment and sentencing

Judgment – means the adjudication by the court that the defendant is guilty or not guilty
Sentencing - procedure at which a court of law of competent jurisdiction makes an order on the
specific penalty to be meted out to the criminal after convicting him.

13. What to do if a client pleads guilty

 Ascertain whether the client understands the charges made against him and advise him on the
consequences of making that kind of plea. Ascertain whether the client based on the facts
voluntarily committed the crime so as to form a strategy for his defence.

14. The Trial process

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.
Complaint- Arrest- Charges- Plea- Trial- Judgment- Sentence

15. HOW CRIMINAL CASES ARE INITIATED - Criminal cases are initiated by a complaint being
lodged. A complaint can be lodged with the police or the magistrates but the proper way is with
the police. It will be recorded in the Occurrence Book in the Police Station stating who the
complainant is and what the complaint is. The decision to file a case depends on the information
in the OB, the police will take a statement from the complainant, visit the scene of the incident,
take notes of any breakages if any, if it is a murder scene, they will make photographs of the
scene and make arrangements for the body to be examined by a pathologist. Once the police
decide what kind of offence has been committed, they draw a charge sheet.

16. Structure of courts

Supreme court – has 7 judges CJ is the President DCJ is the vice president
Has original jurisdiction – presidential election petitions
Appellate jurisdiction – from C.O.A and various tribunals
Advisory jurisdiction – to government, authorities
Court of appeal – has not less than 12 judges
Has appellate jurisdiction – cases from the High Court
High Court/Industrial court/Envt and Land court
Has original jurisdiction for murder cases
Appellate jurisdiction – cases from C.M.Court, tribunals
Admiralty jurisdiction
Supervisory jurisdiction on subordinate courts
Constitutional cases
Cases on violation of Human Rights
Chief Magistrate Court -, value not exceeding 500,000
Senior Principal Magistrates Court - value not exceeding 500,000
Principal Magistrates Court - value not exceeding 300,000
Senior Resident Magistrates Court - value not exceeding 300,000
Resident Magistrates Court - value not exceeding 100,000
District Magistrates Court Grade 1 - value not exceeding 20,000
District Magistrates Court Grade 2 – petty offences
District Magistrates Court Grade 3 – practically non existent

17. Plea taking – the accused goes to court and the charges as laid out are read to the accused. The
charges must disclose an offence. If an offence is not disclosed the court may discharge or a
fresh complaint may be put in the court. if the charge is proper, it is read to the accused and the
accused is given an opportunity to respond. In case of petty offence like drunk and disorderly the
charges are read and the accused person pleads. In case of serious cases if the accused person
pleads guilty the court prosecutor is required to go through the file and give evidence of what is
contained in the police file. Then the accused person is required to respond to the charge. If they
agree with the facts as set out in the prosecution file, they are convicted on their own plea. If the
 accused person does not agree with certain things in the prosecution file or dispute facts the court
will enter a plea of not guilty or a plea of pardon, autrefois acquit/convict.

CIVIL LITIGATION
18. Res gestae – a fact or opinion which is so closely associated in time, place and circumstances
with some act or event which is in issue that it can be said to form a part of the same transaction
as the act or event in issue, is itself admissible in evidence.

19. Res Judicata - means the conclusiveness of judgment. This Section requires that once a matter
has finally been decided by a competent court, nobody can be permitted to open it in subsequent
litigation. Res Judicata can apply in both a question of fact and a question of law. Where the
court has decided based on facts it is final and should not be opened by same parties in
subsequent litigation. The only way to avoid it is where there is a pending appeal or where an
appeal has been successful and therefore the decision has been reversed then one cannot plead res
judicata. If no appeal lies of right or an appeal has been dismissed, under Section 7 one can plead
res judicata, the parties will not be allowed to litigate on the same issue. In order to know whether
res judicata applies between co-defendants, 2 things must exist
 There must have been a conflict of interest between the co-defendant;
 It must have been necessary for the court to decide upon that conflict in order to grant the relief
sought by the plaintiff;
 The questions between the co-defendants must have been finally decided; and
 The co-defendants must have been proper and necessary parties.

20. Difference between res Judicata and sub judice - With regard to res judicata it relates to a matter
already adjudicated upon while sub judice relates to a matter pending for trial or judicial enquiry.
One of the two doctrines bars trial of the suit where the matter in issue has already been
adjudicated upon in a previous suit this is res judicata, sub judice bars trial of a suit in which the
matter is pending. Under what circumstances can one raise objection on the basis of res judicata
and sub judice? Once the matter is decided unless there is an appeal you can raise objection
under res judicata but where there is an appeal one can raise sub judice

21.Difference between res judicata and estoppel – Estoppel is a doctrine of equity which has been
accepted for century as a mode of ensuring justice is done as between parties where the law does
not satisfy that requirement. One may look at res judicata as a branch of the law of estoppel and
we have estoppel by verdict or estoppel by judgment or by verdict and the rule of constructive res
judicata is nothing else but a rule of estoppel.

21.Judgment in default of defence and appearance – A Judgment is a statement given by a Judge on

the grounds of a decree or Order. Default judgment – Made when either the defence fails to enter
appearance to defend within 14days of service of summons to enter appearance or when the
plaintiff fails to appear for determination of the suit
. Assuming the defendant has been served and opted not to defend the plaintiff may apply for
judgment in default of defence. Where either party fails to appear for the hearing the other party
may apply for judgment in default of appearance.

22.Garnishee Proceedings Order 23 – where one has a decree but property of the judgment debtor is
not in the hands of the judgment debtor. These are proceedings instituted by the decree holder
against a third party holding property of the judgment debtor.
23.Interpleader proceedings - Arises when a person holding property applies to court to determine
between two adverse parties claiming the property, who should get the property. Application is by
originating summons

24.Cross examination of witnesses – one is allowed to ask leading questions, question a witness on
previous testimony and it is not restricted in any way. There are 3 aims of cross examination
 To elicit further facts which are favourable to the cross examining party;
 To test and cast doubt on the evidence given by the witness in chief;
 To impeach the credibility of the witness.

25.What to do before u institute a suit - Serve the defendant with a demand letter
26.Content of a demand letter
 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

27.Elements of defamation
Defamation is a false statement about a person to his discredit which exposes him to hatred,
ridicule and causes him to be shunned or avoided by right thinking members of society.
Forms: libel – permament form e.g written, printed artistic work, picture
Slander – merely spoken, in form of a sign or a gesture
Elements: the statements are false; Defamatory; clearly referred to the plaintiff, published to a
third person

28. Defences in defamation:

a) justification - the statement is true
b) Fair comments on a matter of public interest
c) Absolute privilege – parliamentary proceedings, judicial proceedings, statements between
advocates and clients and those between husband and wife, state communication.
d) Qualified privilege – reports on parliamentary and judicial proceedings, statements made in
the performance of a dutyi.e statements made to protect an interest
e) Offer of amends - publication of apology and deposit of a sum of money in court
f) Consent of the plaintiff to the publication

29. Difference between set off and counterclaim - Counterclaim happens when the defendant has
some claim against the Plaintiff. Usually the option is that the Defendant will have a choice
either to institute a separate suit or set up their claim in the defence
A set off happens where the plaintiff has a claim of 1000 and the Defendant argues that the
Plaintiff owes him 500/- you settle for a set-off
There are two major distinctions
1. A set-off maybe described as a shield which operates only as a defence to the plaintiff’s claim;
whereas
2. A counterclaim may be described as being both a shield and a sword. A Counterclaim is basically
a cross-action and is in fact usually treated as a separate suit even for billing purposes by
advocates.
 When you draw up a counterclaim and serve the plaintiff, the Plaintiff must draw a defence to
the counterclaim and serve the Defendant. The defence must be specific and what is not denied
is deemed to have been admitted. Whenever you have set-off the plaintiff has to reply to it.

30. Is a counterclaim separate document from a defence

A counterclaim is usually treated as a separate suit but in most cases to avoid multiple suits and
reduce costs it forms part of the defence

31. Trespass: Unlawful interference with one’s body or property without consent.
Trespass to person includes – assault threat to cause grievous harm, battery actual infliction of
harm false imprisonment unlawful restriction of a persons liberty
Trespass to land –
There must be interference
The interference must occur on the possessor’s land or property
The interference must be voluntary/ deliberate/ intentional
The plaintiff must possess the land
The act that caused the trespass must be direct
Defences In trespass to land – Neccessity, Lawful Authority, Licence

32. Summary judgment

It may be obtained in 2 separate areas
 Where the relief sought by the Plaintiff is for a debt or a liquidated claim;
 Where the claim is for recovery of land with or without a claim for rent and profits. It is for very
straightforward cases

33.Interlocutory judgment-
The court will give an interlocutory judgment (temporary or in between) if the sum sought is an
unliquidated claim.

34.Liquidated and unliquidated damages

Liduidated – specific figures are given
Unliquidated – not specific

.
35. Mitigating circumstances
36. If a person is sightseeing on a high building, sees an accident and falls down and dies whom do
u sue – one may sue the owner of the building if the building does not have preventive measures
to ensure the safety of persons

37. Negligence - this is an act or omission which a reasonable man would not do/omit. Elements to
be proved;
 That the defendant owed the plaintiff a duty of care
 That the duty has been breached by the defendant
 That the plaintiff has suffered damages as a result of the breach
It gives rise to the Neighbor principle – in Donogue v Stevenson – it was stated that a person
ought to bear in mind the consequences of his actions on his neighbor, and a neighbor is a
person who is closely or directly affected by the results of ones action.

38. Rylands v Fletcher – the principle of Strict liability

A person who in the course of an unnatural use of his land accumulates something that would harm
another if it escapes is liable for the damages or injury caused by the escape of the harmful
object.

39. Defences of nuisance - Nuisance may be public or private. Public nuisance is some unlawful act
that endangers or interferes with the lives, property and comfort of the public e.g. an obstruction
of a road. Private nuisance is the unlawful interference with the enjoyment or another’s use of
land e.g. loud noises, smells, smoke
Defences include:
Statutory authority
Triviality – the act or omission is small
Lawful use of land – the act is lawful
Reasonable act or omission
Prescriptive right – the act had been going on for a period of time without the plaintiff making a
complaint

40. Ways of commencing a suit

By plaint; notice of motion; originating summons, petition, appeal

41. What to consider before instituting a suit/Essentials of a Civil Suit

 There must be a court of competent jurisdiction
 There must be parties
 There must be a cause of action
 There must be pleadings
 There must be a subject matter
 There must be relief sought and prayed for;
 There must be service of those pleadings; service and summons
 There must be appearance.

42. Judicial review , at what stage does the suit commence – this is an application to question or
seek to have reversed the decision of a public body based on an illegality. Done in the high
court. Section 8 of cap 26 provide for 3 prerogative orders:
 Certiorari - It is an order for quashing or reversing an action of a public
body/authority. It must be brought within 6 months. Order 53 Rule 2
 Prohibition - Restrains a public body from doing that which is illegal or infringing
on the rights of the applicant. Order 53 Rule 1-leave is mandatory
 Mandamus requires a public body to do a duty imposed on it by law. Apply only after
requiring the public body to act and it has failed.
An ex-parte application for leave by way of chamber Summons, accompanied by a statement
setting out the remedies sought and the grounds on which they are sought and a verifying
Affidavit. Leave may be granted free or with terms e.g. Costs, giving security. Application be
made by way of notice of motion within21 days after leave has been granted. R. 3(1)
Notice must be served upon every person who may be directly affected by the order. Rule 3(2)
An affidavit of service indicating the date, place and time of service, and who was served must
be filed before the notice is set down for hearing. Rule 3(3). R. 4(1) Copies of the statement
accompanying the application for leave is to be served with the notice. Fix the hearing date 8
days after service of the motion. Hearing is restricted only to the grounds and reliefs set out in
the statement accompanying the application for leave.

43. Defend kethi

44. How do u enter appearance
Once you receive the summons, a party must enter appearance by filing a Memorandum of
Appearance and you can enter appearance yourself or your advocate can enter appearance on
your behalf. There is a standard document for this. If a person does not enter appearance,
judgment can be entered in default of appearance.

45. Modes of terminating proceedings

 Stricking out of pleadings - on the ground that—
(a) it discloses no reasonable cause of action or defence in law or
(b) it is scandalous, frivolous or vexatious; or
(c) it may prejudice, embarrass or delay the fair trial of the action; or
(d) it is otherwise an abuse of the process of the court,
 Summary judgment

46. Where the defendant is nowhere to be found how do u effect service - the court may on
application order the summons to be served by affixing a copy thereof in some conspicuous
place in the court-house, and also upon some conspicuous part of the house, if any, in which the
defendant is known to have last resided or carried on business or personally worked for gain, or
in such other manner as the court thinks fit.

47. A person out of the country - In such a case you can serve them outside jurisdiction only after
the court grants you permission to do so. You will apply to the court for leave to serve outside
the jurisdiction of the court. Application is by way of Chamber Summons supported by an
Affidavit. Normally you will tell the court the mode of service that you want to use.

48. How do you serve a foreigner? Service can also be ordered by the High Court anywhere in the
commonwealth. You can serve a foreigner within Kenya provided the course of action against
them arose in Kenya and if the foreigners are lawfully in Kenya and on their own volition.

49. Where the defendant is a public officer or an officer of a local authority, the court may, if it
appears to it that the summons may be most conveniently so served, send it for service on the
defendant to the head of the office in which he is employed, together with a copy to be retained
by the defendant.

50.Where the defendant is a soldier (but not an officer), the court shall send the summons for service
to his commanding officer, together with a copy to be retained by the defendant.

51. Service on the government -The Attorney General being the government legal adviser is
mandated to receive all legal service where the government is a party; you can serve the AG
personally or deliver the summons to the offices that he occupies in his legal capacity. You
can also serve an agent of the Attorney General. In normal practice the Attorney General has
mandated personnel who can receive services on his behalf. You can also serve the AG by
registered mail and the time within which delivery should be effected should be same as that
or ordinary post.

52. Service on a corporate or company? The accepted practice is to serve the company secretary,
a director or any principal officer of the company. When serving the principal officer one
must take full particulars of the officers and indicate it in the affidavit. If you cannot find any
of these persons then you can effect a service by way of registered post to the last known
available address of the corporation you can look this up in the company registry.
53. How to effect service to a erson in jail/ In police custody - the summons shall be served on him
personally in the presence of the officer in charge of the prison or serve the officer in charge of
the prison and if in a police station you serve the OCS and normally you would have to explain to
them who the person is after confirming that they are in their custody. Whoever receives the
document has to sign at the back of the copy. You need an extra copy to leave to the officer in
charge and one to give to the defendant. You must ensure that your service is acknowledged and
always make a return of service.

54. When does the defendant have a right to begin

 Where the defendant admits the facts alleged by the plaintiff but raises an objection on a point of
law, the defendant will be entitled to make his submissions on the point of law. E.g. an objection
on limitation of cause of action being time barred by the Limitation of Actions Act or matter is
res judicata or subjudice. Practice is that the objection should be raised at pleadings. Although
nothing prevents one from raising it at the time of trial.
 Where the defendant admits the fact alleged by the plaintiff but states that the plaintiff is not
entitled to begin e.g. suit for recovery of an alleged debt and in this case the defendant admits the
facts, that in fact he did receive the money from the plaintiff but that the money was not a debt
but rather a gift and is therefore not liable to repay the money. In this case the defendant shall
have right to begin in order to make submissions in order to show circumstance why the money
should not be paid.

55. The status of justice ombijja after being declared unsuitable to serve the judges n magistrates
board

56. Third party proceedings - These are proceedings instituted to include a party(s) to a proceeding as
defendants. The rationale for 3rd party procedure is to prevent a multiplicity of actions. The 3rd
party is brought to avoid multiplicity and to avoid the same facts being tried with different results.
In 3rd party proceedings one can claim indemnity or contribution. Indemnity is where a party is
alleging that they are entitled to reimbursement. This could arise from court or contract. For
example under the Law of Insurance the insurance is bound to indemnify the insured if liability is
proved. Indemnity can also arise from a tort. Contribution is partial indemnity, simple one is
saying that they are supposed to pay but somebody else is also responsible and should pay a
portion of the liability.

57. Instances when you can settle a suit out of court

 Plaintiff may discontinue suit;
 Plaintiff may withdraw part of his claim.
 Defendant may submit to judgment.
 Defendant may make payment into court in satisfaction of the plaintiff’s claim.
 Defendant may compromise with plaintiff on certain terms.

58. What is a judgment? A Judgment is a statement given by a Judge on the grounds of a decree
or Order. It is a final decision of the Court to the parties and the World at large by formal
pronouncement or delivery in open court. Order 20 Rule 4 to 5 set out essential elements of a
judgment:
 contain a concise statement of the facts of the case;
 Contain issues for determination;
 The decisions on each of those points;
 Reasons for each of those decisions.
 59. Striking out of pleadings: Order 51 Rule 13 The court may at any stage of the proceedings
order to be struck out or amended any pleadings in an action or anything in any pleading on
the grounds that
 It discloses no reasonable cause of action or defence;
 It is scandalous, frivolous and vexatious.
 It may prejudice, embarrass, or delay fair trial.
 It is an abuse of the process of the court.

PROBATE
60. Types of grants
a) Grant of probate – made in respect to all the property to which the will provides

b) Grant of letters of administration :-

i. Grant Of Letters Of Administration With Will Annexed - made in circumstances where
either:-
 the deceased left a valid will, but there is no proving executor, i.e the will does not appoint an
executor(s) or
 the executor(s) appointed has pre-deceased the testator or the executor(s) has renounced
executorship or
 the executor(s) appointed has been cited to take out a grant of probate and has failed to do so (S
63 the LSA).
Made to the following:-
 The universal or residuary legatee, (person entitled to the remainder of the estate after payment of
debts/liabilities and distribution),
 A personal representative of the residuary legatee,
 The person or persons entitled to the administration of the estate of the deceased if he had died
intestate,
 The public trustee,
 Any other legatee and creditors

ii. Grants of Simple Administration –

 the deceased dies totally intestate or
 where his will is invalidated and
 where intestacy is partial, it will be made in respect of property that is not dealt with under the
deceased’s will. Made in order of affiliation to the deceased
Limited Grants
(a) Grants Limited as to purpose
(i) Grant ad colligenda bona (S 67 LSA) – limited to the purpose of collection and preservation of the
assets, applies to assets likely to be wasted before getting a full grant e.g. perishable goods. A full grant
takes about 2 months and within that time assets may be wasted.
(ii) Grant ad litem – issued for purpose of commencing/defending legal proceedings where the estate is a
party to the suit (paragraph 15 of the 5th Schedule to the LSA)
(iii) Grant pendente lite - is granted where there is a pending suit relating to the estate. Such grant is
issued so that the estate is administered during the dispute or pendency of suit. It is limited to the duration
of the pendency of the suit.
(iv) Grant de bonis non administrates – issued to administer an unadministered part of the estate or where
estate is incomplete or partially administered because the administrator has left the jurisdiction, died or
abandoned his administrative responsibilities
(v) Cessate grant – issues where the original grant was limited as to time and that period has now expired
leaving administration of the estate incomplete.
(vi) Temporary grant by a resident magistrate (S 49) – issued by the resident magistrate. Similar grant to
the ad colligenda bona except that in addition to collection and preservation of assets, the holder has
authority to pay debts.

(b) Grants Limited as to property - Under paragraph 13 of the 5th Schedule.

It may be granted where a testator appoints executors only for certain assets in a specified area e.g. an
executor for Mombasa property and another for Kisumu property. Also applies to where deceased is
domiciled elsewhere but has property in Kenya. Grant will be limited to his property in Kenya.

(c) Grants Limited as to time - Paragraphs 1 to 10 of the 5th Schedule, and S 49 of the Act.
(i) Grant durante aetate minore - taken out where either the executors or the administrators are minors
and as such they are not entitled to a grant in their own right The grant automatically expires when the
minor reaches 18 years old, unless some other time is specified by the court.
(ii) Grant durante absentia - Where the personal representative is outside the jurisdiction, the court may
grant representation to another person limited to the duration of the absence of the personal representative
(paragraphs 4, 5 and 6 of the 5th Schedule).
(iii) Grant where will is unavailable - Where the deceased had made a will, but the same is lost,
misplaced or unavailable a limited grant may be given until the original or more authentic copy is found
or availed
(iv) Administration for use and benefit of a person of unsound mind - Where the person who would
be solely entitled to the estate of the intestate is mentally incapacitated, Grant limited to duration of
disability.
(v) Temporary grant limited to collection of assets and payment of debts - This is provided for under
S 49 of the LSA and rule 37 of the P & A Rules. It is related to the grant ad colligenda bona, the only
difference between them being that the limited grant under S 49 goes beyond collection of assets to cover
payment of debts. It is made pending the making of a full grant.
(vi) Special limited grant LN No. 39 of 2002 –made in special circumstances where the urgency of the
matter is so great that the court cannot make a full grant within sufficient time.

Foreign Grants - If the deceased has movable assets outside Kenya, it is necessary to obtain in that
country a separate grant that fulfils the probate requirements of that country. For real (immovable)
property only the law of Kenya will apply. S 4(1)(b) provides that succession to the movable property of a
deceased person, wherever situated, shall be regulated by the law of the country of the domicile of
the person at the time of his death

61. Relation of criminal law to probate

 The importance of the existence of the two elements of a crime incases of murder. A
person who murders another cannot benefit from the property of the person he has
murdered. The murderer is treated as though he died before the deceased.
 Intermeddling with the property of a deceased is a crime.

62. Who is an executor - person appointed by the testator under his will to administrate his
peoperty 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.

63. How to deal with an estate of a person who has died intestate
Section 35 governs the monogamous situation where the couple has children. In such cases
the surviving spouse is entitled to the personal and household effects of the deceased
absolutely with a life interest on the whole residue of the net intestate Estate.
 Section 36 where the deceased has left one surviving spouse but no child or children. The
surviving spouse is entitled out of the net intestate to the following:
1. To the personal and household effects of the deceased absolutely;
2. To the first Kenya Shillings 10,000/- out of the residue of the net intestate Estate; or 20% of
the residue of the net of the intestate Estate whichever is greater;
3. A life interest in the whole of the remainder i.e. over the 80% of the residue,
Section 38 deals with the situation where the intestate has left a surviving child or children
but no spouse. In such circumstances the net intestate devolves upon the child or children.
Section 39 is about where the intestate leaves no surviving spouse or children either because he/she never
got married or they predeceased her, the property should devolve upon the kindred of the intestate or
blood relatives of the deceased in the following order of priority;
Section 40 - This provides for division of the property of an intestate where the deceased is a polygamist.
The Estate of such a deceased person should be divided as follows:
1. His personal and household effects and residue of the Estate should in the first place be
divided among the houses according to the number of children in each house;
2. The Estate is divided in accordance to the number of children in each house.

64. If the testator makes an oral will because he fears he’ll die of cancer n two weeks later he’s
involved in an accident and dies is it an oral will
Section 5 a testator has testamentary freedom. Section 8 a will may be oral or written. Section
9 an oral will is valid if made in the presence of two witnesses and the testator dies within
3months after making the oral will

65. Gift inter vivo and donatio mortis causa

Gift inter vivo means that the transfer of the property becomes operative during the lifetime
of the donor whereas a donatio mortis causa is a gift made in contemplation of the death of
the donor and it passes to the donee after the death of the donor. It resembles a gift inter vivo
in that it takes effect when the delivery takes place but it only becomes absolute if the donor
dies

66. How is a will revoked

Section 5 of LSA provides that a person has testamentary freedom to make a will. Section 8 a
will may either be oral or written. If oral there should at least two witnesses and the testator
dies within 3months of making the will(section 9 &10). If written it should be executed and
attested to. A will may be revoked section 17. Section 18 it may be revoked by :- total
destruction ie tearing or burning; by marriage unless it was contemplated; by writing another
will or codicil; where the will is lost without trace

67. How do you relate revocation by destruction to the law of evidence

Where the will is being contested upon and it has been destroyed by destruction the rules of
evidence demand that for the revocation to be valid two things must be proved. That the
testator had the intention the actual destruction of the will and an intention to revoke the
will. Both elements must be present. The actual destruction must be by burning, tearing or
otherwise destroying the will.

68. ejusdem generis rule

69. Who is an administrator, executor and trustee n how are they appointed
Executor – A personal representative appointed under a will to distribute the property of a
dead person according to the terms of the will. Section 6 of the Law of Succession Act
provides that a testator may appoint his executor or executors by will
 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

70. Procedure for obtaining a grant of letters of administration where there is no will The
beneficiaries chose among themselves a minimum of two people and a maximum of four
people to make the application. The application is made with the consent of the beneficiaries,
accompanied with the will, list of beneficiaries, property, death certificate, fees of 2,750.
It takes the form of a petition and is filed in the High Court registry. The court order for its
advertisement in the Kenya gazette, then the grant is made after 30days where there is no
objection. The applicant apply’s for its confirmation after six months.

71. Procedure for a grant of probate and letters of administration with will annexed
The executor is the person to apply for the grant. Application is by a petition accompanied
with the original will and 2 copies of it together with the original death certificate of the
testator. The file is filed in the High Court registry and the judge orders for its advertisement
in the Kenya gazette. After 30days without any objections made a letter for grant is issued.
After six months the grant is confirmed

72. Resealing
Foreigner with property in Kenya
The grant is applied in his country of origin, after being granted it’s filed in the high court in
Kenya and the normal procedure of gazettement is done.
Kenyan residing in a foreign country
Grant is applied in the country of a persons domicile. Commonwealth countries allow
application for grant in any of its countries. The grant is then filed in the High court in Kenya
and the normal procedure takes place.
A grant made in the High court may be presented in another country for resealing

73. Competent witness in probate – A person of sound mind and of full age.

74. CONVEYANCING
75. Documents in a professional undertaking
This is an unequivocal declaration of intention addressed to someone who reasonably places
reliance on it
76. Constitutionality and effect of new land laws
77. Last conveyancing lecture
78. Article or section 86
79. Duties of a purchasers advocate
PRELIMINARIES
Conduct a client interview to get acquainted with the transaction and obtain instructions,
discuss fees, ascertain clients financial arrangement. Advise client on conducting a survey
then verify the report, taxation matter i.e. rent rates stamp duty
INVESTIGATION
Verify the title document from the vendor/ his advocate. Conducta search, make pre contract
inquiries and requisitions, physical inspection of the property
CONTRACTUAL STAGE
 Receive and hold the deposit in the clients account. Verify the draft contract and make pre
contract inquiries. Consider sellers replies to pre-contract enquiries and requisitions. Consult the
same with the buyer and amend the draft contract as necessary and return to seller.
DELIVERY
Arrange for the execution of the contract then return engrossed and executed contract together
with deposit cheque to the sellers advocate. Receive counterpart contract signed by the seller
Draft conveyance and send it for approval and upon approval engross it
COMPLETION
Make pre-completion searches. Make further preparations for grant of mortgage and ensure that
this is in place. Arrange for execution by the buyer and receive all monies (disbursement, fees,
balance of purchase price and apportionments). Attend completion and report to client. Stamp
conveyance & Mortgage. Get conveyance endorsed with assessed value and lodge the
conveyance for registration. Make post completion searches, Account to client and release title
documents to client.

80. Contract completion documents for land bought in the CBD

Original title Rent Clearance Certificate, Rates Clearance Certificate,
Land Commissioners Consent, Transfer Document, Rent Receipts,

81. Nemo dat quod non habet rule

A person can only receive title to property from the legal owner the property. A person
cannot transfer title which himself doesn’t have.

82. Joint tenancy and tenancy in common

Joint tenancy – all unities are present. Title, possession, time and interest but for tenancy in
common the unity of time is missing

83. Where are searches conducted

Lands Registry, Companies Registry, survey department

84. Contract completion documents for agricultural land

Original title, land control board consent, rates and rent clearance certificate, transfer
document, spousal consent

85. Pre contract searches for the purchaser

Inspection of title records or register at the Lands Registry Search, search at the Companies
Registry to confirm existence of the Vendor or solvency of such Vendor, search at the Local
Authority Registry to ascertain any planning hindrances or notices, search at the Survey
Department to reconfirm or identify boundaries

86. Ways of investigating title

Searches - Written request to the registrar to carry out a search. Results are guaranteed by
both the registry and the government as accurate. One may be indemnified for any loss resulting from
a defective search. Discovers entries made that may restrict registration of a conveyance on the land.
Encumbrances are discovered.
Pre-contract inquiries - Touch on the physical stature of the property
Fetch information that would not ordinarily be available through an official or personal search
Helps to ascertain the value of the property; physical and patent defects; ascertain those in
occupation; boundaries; check on the fittings and fixtures if any.
Requisitions – these are queries or objections that arise from the investigation of the title
 87. the purchasers advocate is responsible for the following:
 Carrying out the search
 Scrutinizing title documents
 Approving sale agreement and sends out requisition for the same
 Preparing transfer or conveyance and engrosses the same
 Attending to the execution of conveyance or transfer where necessary
 Stamping and lodging documents for registration
 Obtaining and paying the purchase monies to the vendor’s advocate

88. Vendor’s advocate should carry out the following fundamental duties:
(a) Prepares agreement
(b) Prepares title documents
(c) Approves transfer/conveyance
(d) Procures execution of transfer of conveyance
(e) Attests the execution of a transfer or conveyance
(f) Receives and accounts for the proceeds of sale to his client

89. Duties of an advocate acting on behalf of the bank (financier)

Make an undertaking of releasing the funds on registration of the property and mortgage

COMMERCIAL
90. Corporate bankruptcy – arises where

91. Conversion of a business to company

This transaction requires that a Notice of Cessation (Form BN/6) be prepared by the advocates
and presented at the Registrar of Companies. This document notifies the Registrar that the owners
of a particular business wish to stop using a particular business name. It will be presented
together with the Original Certificate of Registration of the Partnership. Once the Notice of
Cessation has been approved at the Registrar of Companies, the advocates should reserve the
name that the clients wish to use for the company they intend to incorporate. This is done through
a letter to the Registrar requesting him/her to conduct a search confirming that no company by
that name exists, and if so, to reserve the name

92. Essentials of a contract

i. Offer and acceptance
ii. Intention to create legal relations
iii. Consideration
iv. Parties have capacity to contract
v. Parties must consent to contract freely n without fraud or force
vi. Objective of the contract must be legal

93. Racial discrimination in a company n how do u deal with it as an advocate

94. Grounds for Winding up by court

a) Special resolution by the co. that it should be wound up by the court.
b) The co doesn’t deliver the statutory report to the registrar or defaults to hold the statutory
meeting.
 c) Inability of the company to pay its debts.
d) The co. hasn’t commenced business within a year of its incorporation or has suspended its
business for a year
e) The no. of members of the co. has reduced (private co. below two, public co. below seven
f) Court considers that its just and equitable to wind up the company
g) A co. incorporated outside Kenya but carrying out business in Kenya has liquidation
proceedings commenced over it in the country it was incorporated.

95. IPOs, prospectus expert opinion which companies carry them out
Initial Public Offer - This is the first issue of shares of the company to the public after its
inception. With respect to initial public offers the prospectus should include:
i. An accountant’s report confirming compliance by the company with financial disclosures
under rule 10 (1)
ii. Legal opinion regarding:
iii. Licences and consents for the particular business.
iv. Validity of evidence of ownership of land, plant equipment and other assets
v. Any contracts with respect to proposed issue of securities.
vi. Any material litigation

PROSPECTUS
It invites the public to subscribe to shares or debentures. It is a document which sets out the
advantages that accrue from the investment in the company. It may be issued by the Company, or a
promoter of the company. Could be a direct invitation to the public or offer of sale by an issuing
house. It could also be to invite existing share holders to take more shares i.e. rights issue. Only
public companies invite the public to subscribe for shares or debentures
The company law seeks to compel companies to provide the necessary info in the prospectus to
enable investors make a decision one way or another to subscribe for shares or debenture
In particular full compliance and disclosure:
 Who are the directors and what benefits do they get?
 What profits are being made by the promoters?
 What is the amount of capital required to be subscribed, amount received in cash, and the
precise nature of the consideration given for the remaining capital
 Past company financial records
 Contractual obligation of the co. including commissions it will pay and preliminary expenses
 State the voting and dividends rights of each class of shares
EXPERTS OPINION
Prospectus provides a statement by an expert regarding the co or intended raise of capital or the
intended investment by the co. (with his consent and the prospectus must state so).
Experts include engineer, valuer, accountant or other person whose profession gives authority to his
statement

96. What vitiates a contract – these are Factors that make a contract void)
 Misrepresentation Concerned with the principle of
 Duress or undue representation consent
 Mistake
 Illegality Concerned with public welfare

97. Can a contract be between an insane person

The general rule is that an insane person does not have the capacity to enter into a contract and
the contract may be voidable. However, liability of the insane person exists in case of contracts
involving necessaries i.e items considered to be suitable for the insane’s standard of living

98. Remedy of accounting in company law

99. Who are the agents in a company – any person authorized to negotiate on behalf of the
company e.g. a manager, a director in certain cases like where the shareholders authorize
them to negotiate a purchase on behalf of the members

100. Types of company meetings and who convenes meetings of a company

Statutory meeting – by directors – to consider the statutory report
Annual general meeting – directors, in default by the registrar
Extra ordinary meeting – directors, directors with the requisition of the members, members
requisition, by court,

101. What is the committee of revenue allocation

102. Explain the winding up of a company by a court order

Commences when a petition is presented in court based on any of these grounds Section 218
C.A
103. Duties of a company director

1. Statutory duties
 S. 191 - Prohibition of loans to directors.
 S. 192 – Approval of company in a GM requisite for payment by it to director for
loss of office (also see s 193).
 S. 194 – Duty of director to disclose payment for loss of office etc made in
connection with transfer of shares in a company.
 S. 196 – Register of directors’ shareholdings etc.
 S. 197 – Particulars in accounts of directors’ salaries, pensions etc.
 S. 198 – Particulars in accounts of loans to officers etc.
 S. 199 – General duty to make disclosures for purposes of ss 196, 197 & 198.
 S. 200 – Disclosure by directors of interests in contracts to BOD.
 S. 201 – Register of directors and Secretaries.
 S. 202 –Particulars with respect to directors in trade catalogues and circulars.

Duties of care and skill

 Exercise a reasonable degree of skill expected from a person with his expertise
 Not bound to give continuous attention to the affairs of the company
 May delegate some of his responsibilities to officials or employees of the co.

Fiduciary duties of loyalty and good faith

 Directors should not exceed their powers: They may not act illegally, dishonestly, ultra
vires the company or beyond their own powers.
 Directors must act with an unfettered discretion:
 Directors should not allow their personal interests to interfere with their duties to the
company
  A contract between a company and a director or with a company where director has
interests is voidable at the instance of the company
 A Director is accountable to the company for any secret profit made by virtue of his
fiduciary position.
 A director may not compete with the company.
 A director may not misuse confidential information.

104. Formation of company

 Conduct a search and reservation of the intended company names
 Filing of the Memorandum of Association and Articles of Association
 Filing 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
 Paying Stamp duty
 Commencement of business once the registration certificate is issued. For a private company it
may commence immediately whereas a public company commences once it has successfully
issued a rights issue

TRIAL ADVOCACY
105. Provision in the advocates Act on working under an advocate before one opens his or her
firm – section 13 of the Advocates Act - a person qualifies to be admitted to the bar after
having worked for not less than two years under an advocate that has been in practice not less
than five years.

106. What kind of questions do u ask in exam in chief

 Based on the issues that arose in the cross examination. The object of examination in chief is to
elicit facts that are favourable to the case of the party calling the witness. In other words the
exam in chief is when you question your first witness. Sometimes the plaintiffs themselves.
Normally they will be giving evidence that will be favourable to their case.
 Do not ask leading questions
 Ask one fact at a time
 Questions may begin with: what, where, when, how, which

107. What issues would arise where 3 law firms working in one room
Conflict of interest

108. Initial client interview

Definition – the initial communication with the client
Purpose – to source for information and get proper instructions from the client.
Client states the facts of his legal problem
Build clients confidence by ensuring he knows information he gives is confidential
Ask questions to be able to get necessary facts.
Give the client proper advice

109. Re examination - The re examination is a kind of retrieval process. This is when you try
to heal the wounds that were opened up in cross examination. Most important, re-
examination is strictly restricted to matters that arose at cross examination. The court also
has powers to ask a witness questions for the purpose of clarifying points.

LPM
 110. What are CBAs? How are they enforced
These are agreements that are made after negotiations between the employer/employer
organizations on one hand and employees on the other hand.
Persons involved – employees, employers and the government
It includes terms and conditions involving the employment, as agreed in the bargaining process
The CBA should be registered with the ministry of labour.

111. What is the agent- principal relationship

This is the relationship that arises when a person is authorized to act on behalf of another.
The agent may be authorized to enter into a contract, to buy goods e.t.c.
Authority may be:- actual, apparent or usual
Types of agents:- special, general and universal
Role of agents:-
Factor – in possession of goods to be sold on behalf of the principal
Broker – negotiates on behalf of the buyer and seller
Del cerdere – takes extra risks to indemnify the T
Merchantile agent
Commission agents – enters into contract on behalf of P
Distributorship - An agent can be appointed to buy goods and resell them in his own account

112. Closing arguments in faith muenis case/other case

The Sale agreement for the land, marked as exihibit B, is clearly only in Alponce Muoki's
name. There are no Over-ridding interest over the land. The sale agreement does not contain
any information on over-ridding interests. Charles Muema has also stated that the land
transaction was only with Alphonce. This is a case of a kind hearted person showing mercy to
his fellow human being and his act of kindness taken advantage of. Alphonce did have a short
affair with Faith Muoki, which led to the birth of their son Sebastian. Out of generosity
Alphonce let Faith live in his land since she had no job and also as a way of providing for his
son. At the time Alphonce was not married, he was never known to be married even in the
area he worked. Alphonce does not appear in any of the photos exhibited in court. Neither do
the photos indicate that the people there, were attending any event. Mzee Nyamai who claims
to have attended a wedding ceremony, is a man who has in his age attended very many
ceremonies be it marriage, burial child naming, name it. Therefore it would be difficult to
remember one event out of the many ceremonies he has attended furthermore that took place
more than ten years ago. When Alphonce married just like any man he intended to settle his
family in his land. The period of 12years given to Faith was long enough for her to find
employment or a business to do and not just take advantage of Alphonce Muokis generosity.
Faith was given sufficient notice to vacate which she ought to have done within the 12years.

113. Joinder of parties – ORDER 1 CPR

Parties who have a right to a relief in the same act or transaction/series of acts or transactions
may be joined as plaintiff. One may join parties liable in the same transaction/against whom a
right to relief exists in the same transaction/series of transactions

114. What the court considers in granting an injunction

 That the applicant has a strong prima facie case/ case with probability of success
 That the matter is irreparable through damages
 An applicant for interim injunction must have a legal right in the subject matter which he seeks to
prevent by the conduct of the defendant to violate.
 One of the most important principles is the preservation of the property which is the subject
matter of the suit.
 In the application, the court must consider the balance of convenience, the opposite of the balance
of convenience.
 For an interim injunction to be granted, the applicant must show the existence of a real urgency
and not a caricature of it.
 Interim injunction can only be granted in cases of emergency.
 The applicant must not delay in bringing the application.
 There must be a subsisting action and relief to found an application for interim injunction
postulates that the applicant has a right the violation of which seeks to prevent and in order to do
so effectively, to ensure at that stage of proceedings that the subject matter of the right be
maintained in status quo.
 The court must consider the gravity of injury and the fact that the loss is irreparable.
 The applicant must establish or show that it is virtually or practically impossible to bring a
motion on notice considering the compelling sudden events.
 The applicant must show that the award of damages will not be adequate or enough to
compensate him.

115. Representative suits

These are suits instituted on behalf of a group of people to protect their rights and interests.
Representative suits are allowed in situations where instead of having a multitude of plaints in
court, you allow one or two to sue but judgment affects all of them. One must satisfy the court
that the parties have a common grievance and common interest. If that does not appear then the
court will introduce leave for representative action

116. What is discussed in AGMs How often are they conducted

Provided for under section 131 of the Companies Act. They are held once in each year.
Members discuss:- business of declaring a dividend; consideration of the accounts, balance
sheets and the reports of the auditors and directors; election of directors in place of those
retiring and the appointment of and fixing of the remuneration of the auditors.

117. What are extradition proceedings

Extradition is the return of a person who has come to Kenya after being charged with a crime
to the country he has been charged with the offence.
Deportation – the expulsion of a person out of a country
The attorney general files a miscellaneous application (through a notice of motion)

118. Tarquand rule/indoor management rule - persons transacting with a company are entitled
to assume that the internal company rules have been complied with, even if they have not.

119. Termination of an agency

Agreement
Death of either agent/principal
Bankruptcy of the principal
Discharge of duties by the agent
Operation of law

120. When do directors of a co become liable to third parties

When they engage in business which is not an objective of the company
When they act ultra vires
Engaging in illegal contracts

121. When an agent becomes liable to third parties

Where they act outside their scope of authority
Breach of a condition
Where he signs in his own name without disclosing his capacity as an agent

122. What are quasi contracts

123. When do contracts end/terminate
Performance
Frustration
Breach of the contract and one of the parties rescinds it
Merger
Agreement

124. What happens to an accused in court

Plea taking is conducted

125. If a man has two wives under polygamy then marries a woman under statutory law do
they qualify to be called wives
Succession law – they are both wives of the man as per section 3(5) of the LSA and Section
29 they are his dependants

126. Difference between replying, verifying and supporting affidavit

Replying – gives facts answering to
Verifying – used to accompany pleadings drafted during the preliminary proceedings(plaint,
defence and petitions) to verify statements made therein.
Supporting - sworn by the advocate to support the correctness of pleadings made during the
occurrence of the suit in question(chamber summons, notice of motion, originating summons)
Affidavit of service – filed by process serves stating how service was carried out

127. How is service effected

The rule as to service is that it should be effected personally (Order 5). Where the defendant
cannot be found the server should use all due and reasonable diligent effort to search for the
defendant before he conducts a substituted service i.e. service on the wife/husband. Before
affixing the summons on the defendants door, the server must also use all due reasonable effort to
find the defendant or authorized persons and must state on the affidavit of service full particulars
of the premises

128. Persons authorized by law to effect service

Service will be done by an authorized process server, or by the court itself, which is rare, or
through the advocate’s offices where parties are represented. In practice the advocates will have
a clerk who doubles up as a process server

129. Duties of secretaries of a company

 Issuing notices of general meetings to the members of the co. with the boards consent
 Issuing notices of board meetings to the members of the board
 Taking meetings during board and general meetings
 Keeping books and registers
 Countersigning documents to which the company seal has been affixed
 Making statutory returns of the company
 130. Defence, various ways of attacking the plaint
 One may traverse or deny;
 One may confess and avoid;
 One may object on a point of law;
 One may admit or make an admission;

131. Documents essential before trading(for a public co.)

Prospectus, consents, financial records of the company, contracts

132. Functions of official receiver in winding up

They are in possession and control of the assets of the company
Issues a report on the capital, assets and liabilities of the company, the failure to pay and the
reasons for failure to pay. Where there cases of fraud, he makes a report of it.

133. Nemo dat principle

A person cannot pass title which himself doesn’t have. One can only acquire title from the owner
of the property

134. Elements of defamation

The statements are false and defamatory, and they refer to the plaintiff and have been
published to a third person.

135. How to be and stop being a member of a company

Becoming a member of a company
 Agreement – allotment, Transmission, Transfer of shares, Compliance
 Estoppel

Termination of membership
Death; Bankruptcy; Redemption of preference shares; Liquidation of the company; Forfeiture;
transfer of all shares; surrender of shares; sale of shares held through the company’s lien;
repudiation of an infant

136. Sale agreement - This is an agreement for sale of property

Parties
Particulars of the sale – subject matter
Conditions and warranties
Completion date
Passing of property
Remedies in case of breach
ADR
Termination
Definitions and Interpretations
Incorporation of LSK Conditions for Sale
Agreement for Sale and interest sold
Special conditions
Capacity
Purchase price and Deposit
Completion documents
Assignment Clause
Default Clause
Non merger Clause
Disclaimer (refusal to accept responsibility)
General (usual)
Intention to be bound
Execution

137. Remedies in contract

Damages
Specific performance
Repudiating a contract
Rescission
Quantum meruit
Injunction

138. Why damages

Damages place the plaintiff in the position he would have been had the contract been performed.

139. Coincidence of actus reus n mens rea

140. Causation in criminal law
The evidence given must be proved to have be part of the facts in issue
The cause of things or relevant facts or facts in issue will be admitted to explain the cause of
an injury

141. Professional undertaking at what stage does the financier advocate do it

Made during completion of the contract
Mortgagee’s Advocate undertakes to pay the loan proceeds upon registration of the Charge
plus/or transfer simultaneously.

142. Contract completion – when does it happen and what is a contract completion notice
After investigation of titles and execution of the sale agreement, the next and final stage is the
completion and transfer. The purchaser is to pay the balance of the price and the vendor is to
deliver the title documents for registration.
Contract completion notice – notice issued to the party that has failed to complete the contract
a) Time limitation must be reasonable (21 days is reasonable notice)
b) must demand performance of the contract
c) must be explicit i.e. that you will rescind (cancel) the agreement if performance
demanded is not effected. You must leave no room that another notice will be given
d) The notice must be served. Service can be effected on either the party in default or his
advocate e.g.
e) The notice mus t not be premature i.e. when the other party is in default
 f) Indicate willingness to perform your part of the bargain. e.g. ability to grant vacant
possession etc,you have to walk thetalk.

143. Will- I am with my son(20years) and a daughter(16years) with my househelp, advise

144. Difference between refractory and hostile witness
145. Where do u conduct searches for IR81765 - Nairobi, CR34567 - Mombasa,
KWALE/KILIFI/BLOCK1 – Kwale district. where are the registries located who is the
registrar(under RTA Registrar of titles)

146. Arrests
This is the lawful apprehension of a person limiting his liberty. May be done by a
policeofficer, private person, magistrate. May be done with or without a warrant

147. Difference between advocates complaint commission and advocates disciplinary

committee
ACC- Investigates complaints against an advocate
ADC – deals with case of disciplinary issues involving an advocate after being heard by the
ACC. Makes orders as to the punishment or costs to be made by the advocate

148. Whether the judiciary can try an advocate instead of the complaints commission
Appeals from the ACC n ADC are made to the High court

149. Trial within a trial – voir dire

150. Retracted and repudiated confession – difference
A retracted confession occurs when the accused person admits that he made the confession
but now seeks to recant or take back generally what he said on the ground that he had been
forced or induced to make the statement (the statement was not a voluntary one). Repudiated
on the other hand is a statement that an accused avers that he never made.

151. Mitigating circumstances factors that cause one to commit a crime e.g provocation, self
defence

152. Review
Review simply stated means to look once again. Under the Civil Procedure Act review is a
judicial re-examination of the same case by the same judge in certain circumstances. Section 80
of the Act gives the substantive right of review in certain circumstances, while Order 45 provides
the procedure thereof
153. Sentencing –
Occurs when the court makes the order or issues punishment to the accused person

154. Eminent dormain

The power to take private property for public use by a state, municipality, or private person
or corporation authorized to exercise functions of public character, following the payment of
just compensation to the owner of that property
155. Cross examination
Conducted by the opposing advocate to ones witness. Done after re-examination.
Meant to discredit the witness. Questions deal with the credibility of the witness and accuracy
of his statements. Leading questions are asked. Meant to weaken the evidence of the witness
 156. Last project in trial n LPM
Trial - pre trial advocacy
Pre trial advocacy refers to proceedings held before the official court hearing takes place. The objective of
pre trial advocacy is to clarify points of law and facts. It involves client interviewing, legal research and
documentation.

LPM- tripartite system

The relationship bringing together the government, employers acting individually or
collectively and trade union representing workers in a concerted effort towards the promotion
of consultation and co-operation in labour matters.
CB process
Dispute resolution process

157. EXAMINATION OF WITNESS

This is the questioning of witness to ascertain the accuracy of their evidence and also to
enable an advocate tell his clients story. There are three ways of examining witnesses
Examination in chief, cross examination and examination in chief

158. How do u proceed as an advocate when the court orders u to go for ADR
As an officer of the court, its your duty to respect an order of the court. There are situations
where matters are referred to arbitration under an order of the court. This happens where the
parties may during the proceedings or hearing at any stage of the hearing agree to have any
dispute between them referred to arbitration. A matter may be referred to arbitration by the
court in exercise of its own discretion so as to enable it make a decision. Reference to
arbitration as set out in a prior agreement between the parties is different from where parties
agree in the course of litigation to take the same to arbitration but the parties must inform the
court.

159. If your laptop was stolen in the library what do u do

Report to the security personnel or library assistants
160. Do an examination in chief using open ended questions (for the complainant)
161. Doctrine of survivorship/jus accrescendi
In a joint tenancy – when one party dies, the other party gets the deceased share of the
property. The surviving party takes the whole property.
162. Terms of a contract
Express and implied
Offer
Acceptance
Conditions
Passing of property
Remedies
Termination
ADR

163. Volenti non fit injuria –

A person cannot claim a relief if he had consented to the tort or acquiesced his rights or was
aware of the tort but for some time did not protest or bring a claim.

164. Exclusion clause – what is it and what is needed to make it legal

They limit the rights of the parties to a contract
165. Sec 3(3) of LCA and its equal in the land act
Section 38 of the Land Act
166. Whether an oral contract is valid
It is valid if it has fulfilled all the elements of a contract, but it would be difficult to enforce

167. What is in a contract completion clause

A clause stating the date and place of completion, together with what is to take place.

168. Capital offences and what they are

Offences which attract heavy punishment
169. Who drafts a sale agreement – vendors advocate

170. What a purchasers advocate does with it – verifies it and raises pre contract inquiries with
the vendors advocate and also advises the purchaser on it.

171. How many engrossed copies do u need – two engrossed copies, one for each party

172. Elements in murder and what mens rea in murder is called

Mens rea in murder is called malice aforethought. It nvolves the intention to cause
grievous harm, knowledge that the acts would cause grievous harm/death

173. wafula was hit by kevins car on langata road n has come s to u for advise.
Get to know the full facts of the incident who was in the wrong. Advise him that he has a
right to claim for damages for the injuries sustained and for costs of treatment.
Prepare a demand letter to be served on Kevin and failure to admit liability or to negotiate, he
institutes a suit.

174. How do u conduct a client interview

175. X enters into a contract with y, for y to supply goods. X pays y, n y dies before making
delivery. X is attempting to sue, advise y’s widow.

176. What is res ipsa loquitor

Statements are to be construed just as they are.

177. Maxims in equity

178. Difference between judgment and ruling
Judgment – the decision of a court in proceedings involving a suit
Ruling – decision of a court in cases of a petition/appeal/application

179. Objection proceedings.

You can stop execution by Objection proceedings under Order 22 rule 50 . Where property is
attached the attachment may be objected to through objection proceedings. Any person who is
entitled to have any legal or equitable interest in the property to be attached may at any time
before sale or paying out of the proceedings of the sale object in writing to the court.

180. Objections to the issue of a grant

After the application is gazetted, objections may be made within 30days.
 The objector files his objection, in triplicate, to the high court registry. The registrar notifies
the applicants of the objection and also notifies the objector to answer to the petition for
grant, together with a petition by way of a cross application (petition) supported with an
affidavit. The registrar then refers the matter to the court for directions and then notifies the
parties involved of the time and place of hearing the objections.
Where the objector wishes to withdraw his objections he files a notice to withdraw.

181. Docs used to file objection to an application for letters of grant

An answer to the petition for grant
Petition by way of a cross application

182. B bought land from A, then got a buyer C, but B hasn’t completed payment to A, how
does B proceed
B may assign his liability for payment of the land to C, that is, C shall now be liable to
pay A. Must be done with the consent of A. if A consent this is known as novation, a new
contract is created between A and B.

183. What does a magistrate do at the end of the prosecutions case

184. What do u do in a defence proceeding as the advocate of the accused
185. Overriding objectives
186. An accused person who is insane walks into your office, how do u proceed as a
prosecutor
187. Difference between bail n bond

188. What is a charge and a discharge

The list of exceptions to the nemo dat r u l e

The main exceptions, from various sources, are:( a ) e s t o p p e l ( c o n d u c t o f t h e o w n e r ) ;

(b)sale under a common law or statutory power; ( c ) s a l e u n d e r a v o i d a b l e
title;(d)sale by a mercantile agent;(e)sale by a seller in possession;
(f)sale by a buyer in possession

189. Application in conflict of interest

190. Forfeiture
191. Stakeholding
192. special grants
193. closing of pleadings
194. xcteristics of a gift in contemplation of death
195. Explain what a 'bonus issue' is.
196. What is a 'rights issue'?
197. Enforceability of an international Bill of exchange
198. What is 'noting and protesting' in bills of exchange
199. How are directors appointed?
200. Explain the relationship between Directors, Employees and shareholders with a company
201. Validity of a will
202. Whats the last topic you did in defence
203. What is the meaning of the seriatim clause in a defence
204. what is a power of attorney and where do you register it
205. where do you register cr/sme number/sme other number
206. where do you register kwale/block sth/sme number
207. when someone is making an oral will and someone else is noting down is what has been
written down a written will?
208. when a client tells you what he wants in the will in his language and its translated and u
note it down in english what other docs should u attach to this will
209. talk about signatures on a will.is a rubber stamp a valid signature
210. Ultra vires
211. application of customary law,
212. deal breaking clauses in conveyancing
213. judicial review procedure
214. creation of agency
215. registered caveats,
216. stamp duty,
217. interlocutory proceedings ,
218. your client has just been arrested and is being rushed to makadara what will u do next,
219. difference btwn hearing and mention date,
220. types of pleas,
221. what happens when a prosecution finishes presenting its case,
222. a wife married under cap 150 has heard his husband is getting married tomorrow advice
her with regards to stopping the marriage,
223. principles established in giella,
224. who is a dependant
225. How do you move court for grants,
226. have u ever seen the succesion act and how is it arranged(i.e sections then
schedules,rules,forms)
227. procedure for applying for a special limited grants,
228. Sources of law
229. Nullity and divorce
230. A kamba woman wants to divorce under customary law. How do you proceed?
231. Breach of contract
232. Circumstances under which a will can be challenged
233. My take on the marriage bill
234. Essentials of a will,
235. what's a codicil,
236. duties of an advocate to a client,
 237. confidentiality,
238. cab rank rule
239. The principle of jus accrescendi in relation to commorientes
240. quicquid plantatur solo, solo cedit
241. Procedure of registering a Hire Purchase Agreement
242. 2.prof. indemnity cover
243. conflictof interest
244. provision in the Constitution on Bill of Rights enforcement
245. Id parades
246. Rights of an accused psn Article 49 COK
Right to an open court; right to be notified of reight or represenatation, to know the charges made
against one, to have an interpreter, right to appeal,
247. Memondarum clauses
248. Diff btwn proff misconduct and proff negligence
249. Failire of both parties or any parties to a suit to appear in court
250. diff btn mortgage and charge
251. what happens after attaining letters of admin thn fnd out that sm property 6.
252. who is an intermeddler
253. What is striking out,
254. Dif.btwn striking out n dismisal of suits,
255. u r a purchasers advo. B4 completion te vendor mortgages the prperty n the purchaser
nsists on getin the property wat do u do,
256. what is an oral will,
257. can spouses testify against each other?
258. What is a company.
259. What is the least no. of directors a private company may have/ public company
260. can children enter into contracts...what it the legal position
261. exclusion clause...
262. your client was driving along thika rd saw an advert on a bill board as he is short sighted
couldnt c an exclusion clause tht was in small font he entered into a contract with co tht was
advertising, co. breached its part of the contact can ur client sue? Advise
263. caveat emptor
The general rule is that during the negotiations leading to a contarct a party is not bound to
disclose information which might influence the judgment of the other party
264. confessions
265. confidentiality
this is the rule or duty whereby information given to a party shall not be communicated to
another person
types
advocate – client, work-product, general
266. types of torts
o negligence
o trespass
o nuisance
267. termination of criminal proceedings
nolle prosqui
 268. Chinedus story 4.how would kenya deal with chinedu legaly if found guilty.
269. .marriage regimes in Kenya
Civil marriage

Polygamous marriage

Mohammedan marriage

270. Whats discrimination. 7.

271. Where do you institute a discrimination case n how. 8.
272. How do u go about a discrimination complaint as an advocate.
273. 1. difference btn caution and caveat
274. how to proceed wea purchaser hs full price,vendor is a willing seller bt e land has a
charge
275. how to proceed wea ur client's copyright is infringed en knws wea to get e evidence from
e defendants piracy premise.

276. what constitutes professional misconduct

failing to deliver damages to the client

when involved in a conflict of interest he fails to transfer the matter to another advocate

277. owalo situation

1. Role of criminal law

 Understand and draft relevant pleadings and documents necessary for criminal litigation.
 Understand various jurisdictions in criminal litigation;
 Apply the Criminal Procedure Code , CAP 75 and other statutes related to criminal
litigation;
 Understand the processes of criminal litigation generally;
 Identify and apply different forms of procedures applicable to different forms of criminal
litigation;
 Equip students with case management skills to facilitate expeditious disposal of cases.

2. Defences in tort
 Contributory negligence
 Voluntary assumption of risk - volenti non fit injuria
 Illegality
 Acts of God
 Mistake
 Necessity
 Self defence

3. The principle in the case of Donogue V Stevenson

 The principle in this case is the neighbour principle.
 One must take reasonable care to avoid acts or omissions which you can reasonably foresee
would be likely to injure your neighbour.
 A neighbour was stated to be – persons who are closely and directly affected by my act that
I ought to reasonably have them in contemplation as being so affected when I am directing my
mind to the acts or omissions which are called in question

4. Demand letter
Contents
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

5. Res judicata
Provided for under Section 7 of the CPA.This doctrine requires that there should be an end to
litigation or conclusiveness of judgment. Where a court has decided and issued judgment then
parties should not be allowed to litigate over the same issues again. This doctrine requires that one
suit one decision is enough and there should not be many decisions in regard to the same suit. It is
based on the need to give finality to judicial decisions. The only way to avoid it is where there is a
pending appeal or where an appeal has been successful

6. Sub judice rule

The sub judice rule regulates the publication of matters which are under consideration by the
court. Matters are considered to be sub judice (Latin for 'under judgment') once legal proceedings
become active.

7. NOLLE PROSEQUI
A Nolle Prosequi is a statement that the Republic intends to discontinue the proceedings and is
entered by the Attorney-General. The Attorney-General may enter a nolle prosequi at any stage of
the proceedings before verdict or judgment. There are two modes of entering a nolle prosequi
under the Criminal Procedure Code. First, the Attorney-General may state it in court or in he may
inform the court in writing that a nolle prosequi has been entered 6. Once a nolle prosequi is
entered, it stays the proceedings in respect of which it was entered sine die and discharges the
accused person(s). 'Nolle Prosequi' is different from such withdrawal in that it is not subject to any
form of control by the courts and is a power exclusively vested in and exercisable by the Attorney-
General unless he delegates in writing pursuant to section 83 of the criminal procedure code to his
senior subordinates - Solicitor-General, The Deputy Public Prosecutor or a State Counsel
When an accused is discharged following the entry of nolle prosequi such discharge is no bar to
subsequent proceedings on account of the same facts

8. The rule in Rylands Vs Fletcher

65
Section 82(1) of Criminal Procedure Code (Cap 75).
A person who in the course of use of his land brings on it anything likely to do harm if it escapes is
held responsible if it escapes and interferes with the use of the land of another.

9. Autrefois convict & autrefois acquit

 Autrefois convict- where a person has been tried and convicted of a similar charge under
the same facts
 Autrefois acquit- where a person has already been tried and acquitted of a similar charge
under the same facts.

10. As an Advocate how do you proceed with a matter of a dead person and a minor
 A Minor may sue or be sued. Order 32 a suit by a minor shall be instituted in his name by
the next friend of the minor Where the defendant is a minor, the court, on being satisfied of
the fact of his minority, shall appoint a proper person to be guardian ad litem of such minor

 A Dead person may sue or be sued. The executors or administrators of a deceased person,
or the trustees may take out as of course, an originating summons, returnable before a
judge sitting in chambers for such relief of the nature or kind following, as may by the
summons be specified, and as circumstances of the case may require. Order 37

11. Representative Suits. Order 37

These are suits by or against trustees, executors and Administrators of a deceased’s estate.
In all suits concerning property vested in a trustee, executor or administrator, where the
contention is between the persons beneficially interested in such property and a third
person, the trustee, executor or administrator shall represent the persons so interested, and
it shall not ordinarily be necessary to make them parties to the suit, but the court
may, if it thinks fit, order them or any of them to be made parties.
Where there are several trustees, executors or administrators, they shall all be made parties
to a suit against one or more of them.

12. Defend onyancha

Propable defences
Insanity- a mental condition where one commits an act without knowledge of what one is
doing. The Penal Code, Section 12 states that A person is not criminally responsible for an
act or omission if at the time of doing the act or making the omission he is through any
disease affecting his mind incapable of understanding what he is doing, or of knowing that
he ought not to do the act or make the omission.

Automatism – acting under a force beyond ones control

13. Formation of a company

Procedure
1. Conduct a Search of the name
Write a letter to the companies registrar to confirm if the proposed name is available for
registration. One cannot register an existing name or names under Cap 1 that are prohibited e.g.
names related to the coat of arms, national anthem, obscene names or names undesirable or
offensive to the public. If the name is acceptable, it is reserved for 21 days.
2. Draft Memorandum And Articles Of Association
Constitutes the constitution of the company.
(a) The Memorandum of Association
Deals with how the company relates to third parties.
Contains:
Name of the company; Location of 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.
(b) The Articles of Association
-Deals with the internal affairs of the company and its day to day operations. -Addresses issues of
shares, meetings, directors e.t.c -Table A of the Companies Act gives model articles. Part 1 for a
private company and Part 2 for public companies. They should not contradict the Companies act
or any other law.
3. Pay Stamp Duty
-Done at the Lands Registry- Fill a Stamp Duty Form. Must indicate the nominal capital of the
company. Collector will assess the amount of stamp duty payable which is in relation to the nominal
capital indicated. Done by cheque. Once stamp duty is paid your stamp duty form is stamped.
4. Filling Of 3 Remaining Documents
Remaining documents to be filed:
a) Particulars of directors and secretary
b) Particulars of registered office- street name, plot number, address. This is important for
service of legal documents
c) Certificate of compliance from an advocate to state that all requirements have been
complied with.
5. Commencement Of Business
- A private company may commence immediately after registration. Business licences/permit
from the local authority/government agency may be the only requirement
- Public companies are only entitled to commence business when it complies with one of the two
things:-
a) A prospectus issue of shares (a successful one). This can be done simultaneously with the
registration of the company.
b) Must prepare the register with Registrar of Company a statement in lieu of prospectus issue
that is unsuccessful. i.e. minimum subscription of shares hasn’t been attained.

14. Duties of a purchasers advocate

STEPS COMMONLY TAKEN BY THE BUYERS ADVOCATE
1. Take instructions from the buyer, consider conflict of interest, discuss and agree on the fees,
discuss his financial arrangement.
2. Advise the buyer on the desirability of having a survey conducted and a physical inspection
of the property and determine appropriate completion date. Advise the buyer on taxation
matters i.e. rents rates VAT and stamp duty implications on the transactions
3. Receive and hold the deposit in the clients account.
4. Consider surveyors or valuer’s report and Deal with planning matters
5. Investigate title and make requisitions
6. Consider the draft contract and raise pre-contract inquiries. Consider sellers replies to pre-
contract enquiries and requisitions. Consult the same with the buyer and amend the draft
contract as necessary and return to seller.
 7. Make preparation for the mortgage facility if the lender is separately represented and
advise the buyer on the terms of mortgage.
8. Engross or receive engrossment of contract, arrange for the execution of the contract then
return engrossed and executed contract together with deposit cheque to the sellers advocate.
Receive counterpart contract signed by the seller
9. Draft conveyance and send it for approval and upon approval engross it
10. Make pre-completion searches
11. Make further preparations for grant of mortgage and ensure that this is in place
12. Arrange for execution by the buyer and receive all monies (disbursement, fees, balance of
purchase price and apportionments)
13. Attend completion and report to client
14. Stamp conveyance & Mortgage get conveyance endorsed with assessed value and lodge the
conveyance for registration Give notice to tenants where applicable.
15. Make post completion searches, Account to client and release title documents to clients then
Dispose of any documents as instructed pertaining to the transaction

15. The vendor’s advocate carries out the following fundamental duties:
PRELIMINARIES: Prepares the sale agreement or contract, title documents and other contract
completion documents
INVESTIGATION: confirm availability of funds from purchasers advocate
CONTRACTUAL STAGE: Approves transfer/conveyance. Procures execution of transfer of
conveyance. Attests the execution of a transfer or conveyance. Receives and hold deposit in clients
account.
DELIVERY: Receives and accounts for the proceeds of sale to his client
COMPLETION: Attend completion. Receive the balance and release the contract completion
documents

16. how to commence a civil suit and a criminal suit

Civil suit
Make a demand to the defendant through a demand letter.
When the defendant denies the claims, draft plaint and supporting affidavit and present them to
the court registry for stamping.
Prepare summons to enter appearance for signing by the court to be served on the defendant

Criminal suit
After a complaint is made the police officer prepares a charge sheet stating the statement of offence
and particulars of the offence and files it in court. Court then issues a warrant of arrest, the
accused is arrested and arraigned in court.

17. How to institute a criminal proceeding

Proceedings may be instituted either by the making of a complaint or by the bringing before a magistrate
of a person who has been arrested without warrant
18. Why is it that section 3 of the Law of Contract Act and section 97 of the Evidence Act
demand that a transaction relating to land must be in writing?
a) To ensure certainty as land is unique. Thus in case of disagreement, the remedy of specific
performance may be available.
b) To guard against any fraudulent dealings.
c) The formality as to writing performs a forensic function in providing simple yet conclusive
evidence of the fact of an agreement.
d) Writing performs the useful evidentiary function in encouraging precision and recording
such precision for posterity.
e) It has also been stated that writing performs the protective function of giving the
proprietors of land an opportunity to think again before dealing with this very unique item.

19. What are controlled transactions

These are transactions dealing with agricultural land. Land Control Act Section 2 defines
agricultural land as land that is not within urban and municipality areas. These transactions
require the consent of the Land Control Board

20. How does a cohabitee claim her rights, Sec 2e, Sect 3(5), Sect 4
The laws of Kenya do not provide for the rights of a cohabitee.
Section 2e defines a wife as wives and former wife
Section 29 provides for dependants
In as far as cohabitation is concerned, b4 marriage is presumed, the courts will look at various
factors
a. The length of time that the couple have lived together
b. What the neighbours perceived of the union
c. How the couple carried themselves out
d. Children.

If these conditions exist they weigh heavily in favour of the woman. In the case of Hortensia
Wanjiku Yawe V Public Trustee it was observed that the presumption of marriage may arise out of
long cohabitation and the general repute that the parties must be married.
If the Cohabitee can fulfil the above conditions, then the Court can presume marriage between
herself and the deceased and she will qualify as a dependant as defined in Section 29 LSA

21. Format of a legal opinion

Facts, issues arising, the law applicable, application of the law to the issues raised then a
conclusion stating ones opinion and recommendations.

22. Characteristic of a will

It is defined under section 3(1) LSA as the legal declaration by a person of his intentions or wishes
regarding the disposition of his property after his death duly made and executed in accordance with
Act
A will has five essential characteristics/elements:
 the wishes expressed are intended to take effect upon death,
 it only takes effect on death,
 it operates as a declaration of intention,
 it is ambulatory, and
 it is always revocable.

23. Searches – section 34LRA

A search is the purposeful inspection of the title records or register records at the relevant lands
registry with the primary purpose being to identify or detect an adverse (unfavourable) entry on
the title or the register itself
Procedure
A formal application is made to the relevant registry
An official at the registry does the search
The official lets one make copies of the records
S.144 of the RLA provides indemnity where one relies on an official search to his detriment as long
as one is not a party to any such fraud or defect.

24. Negligence-
Arises where a party who owes another a duty of care, is in breach of that duty and as a result there
occurs a non-remote damage.
Requirements for Negligence
1.Duty of care situation
2.Foreseability
3.Proof that defendant’s conduct was careless
4.Causal connection between defendant’s carelessness and damage
5.Extent of damage attributable to defendant
6.Monetary estimate of that damage

25. Instituting a debt claim

Summary proceedings
Serve demand letter, plaint

26. Contentious issues in the proposed constitution

27. Procedure in the Land control Act
This deals with controlled transactions/ transactions involving agricultural land. Any transaction in
respect of agricultural land must obtain the consent of the LCB. This requirement is set out in s.6 of
LCA. The form used to apply for consent is Form 1 of the Schedule. The consent is issued by the LCB
which is established to cover land within which your land falls. You must appear before the LCB
and make your application. It will ask several questions before issuing the consent. The consent is
then extracted i.e. the letter of consent which you will present together with the transfer. The letter
should be signed by the chairman of the LCB. If consent is denied you could appeal to the
provincial LCB. Final right of appeal lies to the High Court where you can seek judicial review

28. Acts of bankruptcy

29. Immunity
30. Entering appearance by the defendant
31. Grounds for divorce, check customary marriage
a) Desertion of 3years
b) Adultery
c) Cruelty
d) Where a party is of unsound mind exceeding five years be4 the petition is brought
e) Where the husband is guilty of rape, sodomy and bestiality
 32. Prosecutors file
Initial report – contains the report made by the victim or complainant
Documentary evidence e.g. photographs, maps
Expert report
Witnesses statements
Investigation diaries

33. Defence file

Witness statements
Court attendance report
Client attendance report
Cause list
Prosecutors file
Case research

34. Constitutional litigation

35. You are an advocate for a developer advice

36. Completion docs

i. Title deed
ii. Consent
iii. Transfer document
iv. Rent clearance certificate
v. Rates clearance certificate
vi. Rent receipts
vii. Certificate of occupation(given by the county govt) – new building
viii. Certificate of practical completion(given by architect) – new building
ix. ID Card
x. 3 passport photos
xi. Pin number

New Property
– Original head title,
– Transfer
– Certificate of completion issued by the architect
– Certificate of occupation confirming that the property is fit for occupation
– share certificate and memorandum and articles of association of the management
company
– planning approvals from the planning department and Nema
– Consents and clearance certificates
– Stamp duty valuation forms
37. Maintenance of a spouse (ex)
Under common law, the obligation to support a spouse was one that only the husband had.
The duty lasted only as long as the cohabitation lasted. This right was the basis of the common law
right of the wife to get the husband’s credit for necessaries. Nanyuki Gen Stores Vs Patterson
Under statutory law, wife and children have a right to maintenance by the husband only in cases
where the wife is financially dependant on the husband.
Evidence has to be brought before court to show the level of the wife’s dependence on the husband.
By both parties filling affidavits which show the incomes and the needs of the wife and children.
This can be ordered under Sec. 4 and 10 Marriage and separation Act subordinate courts whether
or not a judicial separation ie. Being sought.
- Maintenance orders can also be given under matrimonial causes Act upon a divorce having
been filed. These orders are :
(i) When a decree of restitution of conjugal rights has not been
complied with
(ii) Sec 17, 20 and 21 – Sec 25 – Under the same Act, there is Alimony
Pending suit – temporary maintenance granted by the court upon filing of a nullity petition ,
divorce petition or judicial separation
(iii) Maintenance ordered upon a divorce or nullity or judicial separation
decree : - Can be a gross amount to the wife or an annual amount ( Sec 26)

Instances where wife also pays maintenance

- Where there is a restitution of conjugal rights decree on the wife which she defaults
- Incase of divorce or judicial separation where the wife is the guilty party Sec 27 – court can
order for the settlement of the wife’s property for the benefit of the husband and children

38. Sec 3(5) L.S.A

39. Difference between donoghue –vs – Stevenson & rylands vs fletcher
The rule is, “A person who, in the course of non-natural use of his land, is held to be responsible
for the accumulation on it of anything likely to do harm if it escapes is liable for the interference
with the use of the land of another which results from the escape of the thing from his land”.
40. Defamation
41. Implied terms
42. Difference between mortgage & a charge
43. Share capital
44. Volenti non fit injuria
45. Interlocutory injunctions
46. You are a magistrate, accused charged with murder what do you do?
47. what is notice of motion
method of instituting a suit
order 51
contains orders you are seeking
seeking other pearty to enter appearance
arises where there is an existing application

48. chamber summons

made where there is a pending suit, for temporary remedies

49. Assault & battery, distinguish

50. Commencement of bankruptcy proceedings
 The proceedings in bankruptcy are begun by the presentation to the court of a Bankruptcy
Petition. This petition asks the court for a Receiving Order to be made in respect of a
debtor’s property. The petition may be presented either by the Debtor himself or by a
Creditor. If it is presented by a creditor the petition must be founded or based on an
alleged Act of Bankruptcy which has occurred within 3 months before the presentation of
the petition. Indeed the acts of Bankruptcy are in effect statutory tests of insolvency.

 If it is the debtor himself who presents the petition that in itself constitutes an act of
bankruptcy. Upon hearing the petition the court may dismiss it, if it has no merit or make
a receiving order if it is found to be with merit. This order does not make the debtor
bankrupt all it does is to place his property in safe custody pending the outcome of the
proceedings.

 The first meeting of creditors is then held at which it is determined whether a composition
or scheme of arrangement if one is submitted by the debtor shall be accepted or whether
application shall be made to the court to adjudicate the debtor bankruptcy. If the court
decides to adjudicate the debtor bankrupt it makes an Adjudication Order and the debtor
will then become bankrupt. The debtors property will then vest in his trustee in
bankruptcy who will collect in the property and distribute it among those creditors who
have proved their debts.

 The bankrupt must also submit himself to a Judicial Public Examination and at any time
after conclusion of this public examination the bankrupt can apply for his Discharge.

 If the court makes an order of discharge the bankrupt is released from all his debts with
certain exceptions provable in bankruptcy and is freed from disabilities against some
exceptions which were imposed upon him by the bankruptcy.

51. Grant
52. Remoteness of damage
 Remoteness of damage

Even where the defendant's breach of duty is a cause in fact of the claimant's damage, damages
may be denied on the grounds that the breach of duty was not the legal cause of some of the damage
suffered. In these cases the damage in question is said to be too remote. Policy issues are at work in
this area as the court will not wish to impose an unfair or unduly heavy burden on the defendant or
his insurers.

53. How do you address a female judge, male judge, your colleague
54. Elements of a crime
55. Misrepresentation in contract law
56. Conditions of warranties
57. Reforms in bankruptcy law
58. Elements of a contract
59. Forms in grants
60. Divorce petition
61. Difference between a reasonable man & a normal man (Omnibus case)
62. Reforms in family law & cohabitation
63. Difference between a ruling and a judgment
64. Procedure in identification parade
65. Public company into a private company

66. Differentiate between unliquidated and liquidated

Unliquidated damages: Damages that have to be valued after the injury occurs.
Liquidated damages: Clearly defined and don’t have to go into finding grounds.

67. Types of companies

Limited Company
Private company

68. Hate speech

69. What is discovery in civil litigation
court may, at any time, either of its own motion or on the application of any party— Rev. 2010]
Civil Procedure CAP. 21 17
Summons to witness.
Penalty for default.
Judgment and decree.
1. (a) make such orders as may be necessary or reasonable in all matters relating to the
delivery and answering of interrogatories, the admission of documents and facts, and the discovery,
inspection, production, impounding and return of documents or other material objects producible
as evidence

70. Process of transferring agricultural land

71. Summoning a witness outside jurisdiction
commission

72. Sectional properties act

73. 3rd party proceedings
74. Interpleader proceedings (Order 34 CPR CPA Section 58)
 Instituted by way of originating summons

75. Debentures
76. Prospectus
77. Plaint, what accompanies it
 Affidavit
 List of witnesses
 List of documents
 Documents in support of special damages

78. Burden of proof shifting to the accused

o Where the accused raised an issue e.g of insanity
o When he raises an objection on a point of law, E.g. an objection on limitation of
cause of action being time barred by the Limitation of Actions Act or the court
does not have jurisdictio. Practice is that the objection should be raised at
pleadings. Although nothing prevents one from raising it at the time of trial.
79. Change a biz into a company, doc needed to reg, including the forms to fill

80. Rescission and repudiation

Rescission – to cancel the whole or part of the contract
Repudiation – occurs where a party fails to honor his obligation to the contract

81. Where there is a war, what happens to a contract

The contract is terminated by frustration
Where the contract involves a party from the enemy country, it becomes illegal
82. If there is failure of one party to transfer ppty
83. Confession and admissions

84. Capacity to sue

Where there is a cause of action
A party was owed a duty
The party has suffered loss or damage
85. Joinder of parties – contract, tort
86. Summary judgment

87. Commital Proceedings

Committal Proceedings: these are conducted for the purpose of deciding whether or not a
particular person should stand trial at the High Court for a Capital Offence. These are conducted
under S. 233 of the CPC in respect of the offences triable at the High Court.

88. payment before action

89. set off

90. Instances when you can settle a suit out of court
a) Plaintiff may discontinue suit;
b) Plaintiff may withdraw part of his claim.
c) Defendant may submit to judgement.
d) Defendant may make payment into court in satisfaction of the plaintiff’s claim.
e) Defendant may compromise with plaintiff on certain terms.

91. enforcement of a decree

92. difference between substantive & procedural law
 Procedural law tells us the method to use to enforce our rights or to obtain redress for the
violation of our rights.
 Substantive law is an area of law that creates, defines, or explains what our rights are.
93. Adversarial & inquisitorial
94. Res gestae
Under the inclusionary common law doctrine of Res Gestae, a fact or opinion which is so closely
associated in time, place and circumstances with some act or event which is in issue that it can be
said to form a part of the same transaction as the act or event in issue, is itself admissible in
evidence
95. Cause and Effect
The cause of things or relevant facts or facts in issue will be admitted to explain the cause of the facts in
issue. So the cause of things and the cause of relevant issues will be admitted to explain the cause of the
main fact in issue Section 7 of the Evidence Act states that,
“Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts or
facts in issue, or which constitute the state of things under which they happened or which
afforded an opportunity for their occurrence or transaction are relevant.”
.
96. JUDICIAL NOTICE

Judicial notice is defined as what judges see or the liberty accorded a judicial officer acting as
such to recognise the existence or non-existence of certain facts or phenomena without calling
for evidence. The effects of judicial notice Section 59 of the Evidence Act
“No fact of which the court shall take judicial notice need be proved. Therefore, Judicial notice
dispenses with proof.

.
97. PRESUMPTIONS:
 These are inferences that a court may draw, could draw or must draw. Presumptions are
devices that entitle a court to pronounce on a particular issue not withstanding the fact that
there is no evidence or there is insufficient evidence. Section 4 of the Evidence Act defines
presumptions of facts and rebuttable presumptions of law
(1) “Whenever it is provided by law that the court may presume a fact, it may
either regard such fact as proved, unless and until it is disproved, or may call
for proof of it.”

98. Judicial review procedure

application by way of notice motion

99. difference between a will & codicil

100. Void & voidable marriage

101. Donotio mortis causa -gift in contemplation of death

Gift in contemplation of death
Section 31 LSA
Cain v Moon set down the conditions that must be satisfied before a gift is deemed to have been
lawfully passed from the donor to the donee. These conditions have been incorporated into section
31 of the Act i.e.
i. the gift must be in contemplation of death,
ii. be conditional upon donor’s death,
iii. delivery to the done by giving a means to that gift,
iv. the gift must be capable of making the subject matter of a donatio mortis causa and
v. the donee must survive the donor
When the donor recovers from the illness that led him to contemplate death, the gift fails. If he dies
of another illness apart from the one that led him to contemplate death or through suicide the gift
also fails.

102. Difference between testate & intestate

Testate- where a person dies having written a will
Intestate- where a person dies without having written a will

103. STRICT LIABILITY

Strict liability is an exception to the fault principle. It is liability without fault. Where a tort is one
of strict liability there is no need to prove fault on the defendant’s part. Once the plaintiff is proved
to have suffered damage from the defendant’s wrongful act, the defendant is liable notwithstanding
with there may have been no fault on his part. A specific instance of strict liability is afforded by
the Rule in Rlylands v. Fletcher

104. Bankruptcy & Insolvency

Bankruptcy is the legal status of an individual against whom an adjudication order has been made
by the court primarily because of his inability to meet his financial liabilities.
Insolvency is the inability of a debtor to pay his debts as and when they fall due. Whether or not a
person is insolvent is purely a question of fact thus a person can be insolvent without being
bankrupt but he cannot be bankrupt without being insolvent. An Adjudication Order in
Bankruptcy is a judicial declaration that the debtor is insolvent and it has the effect of imposing
certain disabilities upon him and of divesting him of his property for the benefit of his creditors.
105. Piercing the veil of incorporation
There a certain statutory provisions that state when lifting the veils occurs. These include the
following:
Reduction In The Number Of Member s; Section 33 of the Companies Act refers to membership
that has fallen below the statutory minimum in a public company. The Act provides that only those
members who remain after the six months during which the company has fallen below the provided
minimum period can be sued. These members are liable ,if they have knowledge of the fact, in
respect of debts contracted after the expiration of the six months.
Fraudulent Trading; The provision of Section 323 of the Companies Act comes into operation at
this juncture. It provides that if in the course of the winding up of the company it appears that any
business has been carried on with the intent to defraud the creditors, or for any fraudulent
purpose, the courts on the application of the official receiver, the liquidator or member, may
declare that any persons who are knowingly parties to the fraud shall be personally responsible
without any limitation on liability for all or any of the debts or other liabilities of the company to
the extent that the court might direct the liability. This Section does not define the term fraud nor
have the courts defined it.
However, in Re William C. Leitch Ltd (1932) 2 Ch. 71 Maugham J., defined fraud within the
meaning of S.323 as “if a company continues to carry on business and to incur debts at a time when
there is to the knowledge of the directors no reasonable prospects of the creditors ever receiving
payments of those debts, it is in general a proper inference that the company is carrying on business
with intent to defraud.”
It was held in the above case, that the company was fraudulently trading since the director knew
that at the time when it was carrying on business and purchasing goods on credit it could not
comfortably pay back any of its debts.
Where company is not mentioned in the negotiable instruments: in such an instance, the drawer of
the instrument will be personally liable to the holder of the instrument unless the amount is paid by
the company. In Durham Fancy Goods Ltd v Michael Jackson (Fancy Goods Ltd) [1968] 2 QB 839;
the court held that the director was not personally liable on the bills of exchange because the error
with regards to the name of the company was caused by director.
Where a company is a ‘sham’; the courts may lift the veil in a scenario where an individual is
prohibited by law to do a certain business but opens a company to do so on his behalf. This was in
the case of Gilford Motors Co v Horne [1933]Ch 935 CA; Where an individual was restricted by a
covenant to trade and he formed a company to carry own business where if he had done so
personally, it would have been breach of covenant. Court granted injunction to restrict business
from carrying on business.
Company acting as Agent of Shareholders; where a company does so, the shareholders will be
liable for its acts.
Residence for Tax Purposes; where it is desired to establish for tax purposes in what country a
company is resident, the court will lift veil and find out where the central management is and that
place determines the residence.

106. Winding up of Companies

ORALS QUESTIONS 2012*

1. Incorporation of companies

2. Essentials of a will

3. Difference between an oral will and a written will

4. Institution of proceedings

5. Advertising, touting and undercutting by lawyers. (The position in Kenya)

6. The criminal trial process

7. What happens to the accused when he is arraigned

8. What is a tort?

9. Negligence

10. What is bankruptcy and insolvency?

11. Difference between insanity and automatism

12. Explain the defence of necessity in murder cases

13. Rules of consideration in contract

14. Remoteness of damage

15. Piercing the veil of incorporation

16. Instituting a debt claim in civil proceedings

17. Defences in tort

18. What can a judge do if a witness refuses to testify?

19. After vendor has identified the property, how will you proceed?

20. How a will can be revoked

21. Winding up of companies

22. Demand letter

23. Types of grants

24. New land laws, transitional provisions, land regimes in Kenya

25. Business to company

26. Institution of criminal proceedings

27. Bail; types of bail

28. Pleas

29. What is occupiers liability?

30. Trial Procedures

31. Difference between Sectional titles and subleases

32. You are a lawyer representing a father whose son was killed in an accident. How do you proceed?

33. Rights of an accused person

34. Debentures

35. Floating charges

36. Refractory witness.

37. Formation of a company.

38. Autrefois convict and acqiuit

39. Revocation of wills

40. Contents of a charge sheet

41. Duties of directors

42. Identification parades

43. What are sub-leases?

44. How is a foreign cheque enforced in Kenya?

45. What is co-ownership

46. Elections
47. Ojode wrangles

48. Stake holding