general principles and commercial law of kenya pdf

General Principles And Commercial Law Of Kenya Pdf

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General Principles and Commercial Law of Kenya.

General principles and commercial law of Kenya This edition published in by holder in due course in relation to General Principles and commercial law of Kenya by Ashiq Hussein in Nairobi Heinemann Eduational Books, Stanford Libraries official online search tool for books, media, journals, databases, government documents and more. General principles and commercial law of Kenya in SearchWorks catalog Skip to search Skip to main content General principles for the electoral system.

General Principles and Commercial Law of Kenya

The United Kingdom established its influence in Kenya in the 19th century. In , the European powers gathered at the Berlin Conference and partitioned East Africa into spheres of influence. In , Kenya became a British protectorate, and the highlands were opened to white settlers. When Kenya formally became a British colony in , organized African political activity developed, but its direct political participation was prohibited until The first Legislative Council elections with the participation of Africans was organized in In , it was amended, and Kenya became a republic with a constitution in which the powers of the governor-general and those of the prime minister were rolled into one: the presidency.

The KANU became de facto the sole political party. In June , the National Assembly amended the Constitution, making Kenya officially a one-party state.

This system was repealed in December , and several new parties were formed. Multiparty elections were held in December and President Moi was re-elected both times. Following the presidential elections in December , Mr. Mwai Kibaki was elected for a term of five years, which brought to an end the supremacy of the KANU, after being in power for 40 years without any interruption. His party, the National Rainbow Coalition won 59 per cent of the parliamentary seats.

The current Constitution differs fundamentally from the Constitution adopted on 12 December The original Constitution provided for the office of an Executive Prime Minister, and for a bicameral, federal and multiparty system. It has, since then, been amended various times. A constitutional amendment from limited the term of office of a president to two five-year terms which eventually led to the peacefully achieved shift in power in The latest amendments stem from Local administration is divided among 63 rural districts, each headed by a presidentially appointed commissioner.

The districts are joined to form seven rural provinces. The Nairobi area has special status and is not included in any district or province.

The government supervises the administration of districts and provinces. The Republic of Kenya has a unicameral assembly consisting of members elected for a term of up to five years, plus 12 members appointed by the president.

The president appoints the vice president and cabinet members from among those elected to the assembly, in accordance with the strength of the parties they represent. The attorney general and the speaker are ex-officio members of the National Assembly.

The Conference consisted of all the MPs, 3 representatives from each district and others from the civil society religious and professional bodies.

Following this adoption, the country was still divided on the constitutional review process. The question of the legality of the document was raised. As of 4 June , there are still discussions around the text to be submitted to the people for referendum. While some support the opinion laid down in a ruling given by Justice Aaron Ringera on the constitutionality of the Conference Miscellaneous Civil Application No.

Justice Ringera did not pass a definite verdict on the validity of the draft. This issue is important, as there are controversies on the text itself, in particular on the system of checks and balances introduced by this draft Constitution, and the role of the Prime Minister, whose post was created by this text. Pursuant to the Draft Constitution, many of the powers of the presidency would be transmitted to this Executive Prime Minister, who would become the head of government Section of the Draft and preside the Cabinet meetings.

When President Kibaki opened the National Constitutional Conference last year, he set the date of 30 June as a deadline for the Constitution to be adopted. But it has now been admitted that the Constitution will not be ready before this date.

Meanwhile, the current Constitution remains in force. The current Kenyan Constitution provides for an independent judiciary. However, the President has extensive powers over appointments, including those of the Attorney General, the Chief Justice, and Appeal and High Court judges. The President can also dismiss judges and the Attorney General upon the recommendation of a special presidentially appointed tribunal. Although judges have life tenure except for the very few foreign judges who are hired by contract , the President has extensive authority over transfers.

The court system consists of a Court of Appeals, a High Court, and two levels of magistrate courts, where most criminal and civil cases originate. The Chief Justice is a member of both the Court of Appeals and the High Court, which undercuts the principle of judicial review.

Military personnel are tried by military courts-martial, and verdicts may be appealed through military court channels. The Chief Justice appoints attorneys for military personnel on a case-by-case basis. There are no customary or traditional courts in the country. However, the national courts use the customary law of an ethnic group as a guide in civil matters so long as it does not conflict with statutory law.

This is done most often in cases that involve marriage, death, and inheritance issues and in which there is an original contract founded in customary law. Recently concerns have been voiced towards the prevalence of customary law as it is often felt to be biased in favour of men. In addition, Kadhi-Courts apply Islamic law for the Moslem population of the country. Unlike the ordinary courts, the Industrial Court of Kenya is not mentioned in the Constitution, but was established in under the Trade Dispute Act Cap.

The Industrial Court has found its current shape in , when the Trade Dispute Act was amended in the light of the experience gained from 6 years of practical application.

The purpose of the Court is the settlement of trade disputes. Vide the provisions of section 14, Trade Dispute Act Cap. Whenever it appears to be expedient, each judge appoints two assessors, one to represent employees, from a panel of assessors appointed by the Minister, to assist in the determination of any trade dispute before the Court. The jurisdiction of the Court is exercised by the judge and the two other members.

The industrial court may award compensation or make an order for reinstatement Trade Dispute Act Cap. The award becomes part of every contract of employment between the employers and employees to whom the award relates under the Trade Dispute Act Cap. The status of the Industrial Court has led to a number of controversially discussed problems in the past:.

Thus, a significant number of labour cases in the broader sense is being handled by ordinary courts, i. Within the ongoing general Labour Law Reform, a taskforce to review the Labour Laws has adopted a draft act on Labour Institutions, introducing a National Labour Court, having the same prerogatives as the High Court, on labour law issues. For more details, see the paragraph on the Labour Law Reform. Articles 70 to 86 of the current Constitution deal with fundamental rights.

Basically the Constitution guarantees fundamental rights and freedoms of the individual. Among these fundamental rights, a range of general principles underpinning labour rights are anchored in the Constitution itself.

The Constitution provides for principles, such as the prohibition of inhuman treatment Art. Freedom of Association is guaranteed in the Constitution under Art. This constitutional provision under Article 80 2 d already regulates in detail procedures for the registration of trade unions and associations of trade unions.

Under this provision reasonable conditions relating to the requirements for entry on a register of trade unions include conditions as to the minimum number of persons necessary to constitute a trade union qualified for registration, or members necessary to constitute an association of trade unions qualified for registration.

The right to strike is not mentioned explicitly, but Art. This Bill lays down the principle of equality Section 35, 37 , the freedom from discrimination Section 36 , the freedom from slavery and forced labour Section 46 and the freedom of association Section The genesis of labour law and practice can be traced to the 19th century when need arose for the colonial government to pass legislation to ensure adequate supply of cheap labour to service the emerging enterprises in agriculture, industry and in the service sector.

Terms and conditions of employment were regulated by statutes and the common law. The law of contract in Kenya was originally based on the Contract Act, , of India, which applied on contracts made or entered into before 1st of January With industrialization, towards the middle of the 20th century, an organized trade union movement was well established.

The first wage earners' associations in Kenya can be traced back to the early s and soon after the Second World War. The first trade union regulation was made in the introduction of Ordinance No. The Ordinance also permitted any group of seven people to form a trade union and operate as one upon registration.

Cancellation of registration under the Ordinance was not subject to appeal or open to question in a court of law Aluchio , 3. In , in order to gain complete hold on the wage earners organizations the government brought in a Trade Union Labour Officer, to be attached to the Labour Department with the duty to foster "responsible" unionism Ananaba , 3.

In a more detailed piece of legislation was enacted for Trade Unions but again with significant omissions. It lacked necessary provisions for effective operation of trade unions. It did not legalize peaceful picketing or provide immunity against damages as a result of strikes.

This rigid control of trade unions was maintained by the colonial government until the end. This notwithstanding, the movement was able to grow both in numerical strength and power. On the threshold of independence however, both employers and trade unions, felt that it was vital for the infant nation to make economic process, that capital and labour should work together in harmony: the incidence of strikes and lockouts had to be drastically reduced.

The Industrial Relations Charter spelt out the agreed responsibilities of management and unions and their respective obligations in the field of industrial relations, it defined a model recognition agreement as a guide to parties involved, and it set up a joint Dispute Commission. The Industrial Relations Charter has been revised twice since then, but remained the basis for social dialogue and labour relations in Kenya throughout the years. With the set up of an Industrial Court in , one additional basic cornerstone was laid for the development of amicable conflict resolution in Kenya.

The terms of reference for the Taskforce were:. The tripartite Taskforce, comprising of members from the government, the trade unions COTU and the employers organization FKE , officially handed over five new texts to the Attorney General in April The five drafts, when they reach their final version, will replace the existing legislation on Labour Law.

These drafts relate to the following matters:. Employment relations in Kenya are regulated by a number of sources: constitutional rights, as mentioned above; statutory rights, as set out in statutes and regulations; rights set by collective agreements and extension orders of collective agreements; and individual labour contracts.

These legal sources are interpreted by the Industrial Court, and in some cases by the ordinary courts see above. International standards, especially ILO Conventions ratified by Kenya are used by the government and courts as guidelines, even though they are not binding.

Acts of Parliament in the realm of civil and criminal law, which have provisions that may have impact on individual and collective labour relations include the Contract Act, Local Government Act, Public Service Commission Act, the Children Act, laws concerning the Armed Forces, and legislation dealing with the establishment of parastatals.

In individual labour cases British common law is applicable up to now. The Judiciary Act Cap.

General principals and commercial law in kenya pdf dics

Corporate law also known as business law or enterprise law or sometimes company law is the body of law governing the rights , relations, and conduct of persons , companies , organizations and businesses. The term refers to the legal practice of law relating to corporations, or to the theory of corporations. Corporate law often describes the law relating to matters which derive directly from the life-cycle of a corporation. While the minute nature of corporate governance as personified by share ownership , capital market , and business culture rules differ, similar legal characteristics - and legal problems - exist across many jurisdictions. Corporate law regulates how corporations , investors , shareholders , directors , employees , creditors , and other stakeholders such as consumers , the community , and the environment interact with one another. In some cases, this may include matters relating to corporate governance or financial law. When used as a substitute for corporate law, business law means the law relating to the business corporation or business enterprises , including such activity as raising capital, company formation, and registration with the government.


General Principles and Commercial Law of Kenya. Front Cover. Ashiq Hussain. East African Publishers, - Commercial law - pages. 3 Reviews.


BUSINESS LAW THE KENYAN LEGAL SYSTEM THE NATURE OF LAW

Law is a system of rules, usually enforced through a set of institutions. Law governs a wide variety of social activities. Legal systems elaborate rights and responsibilities in a variety of ways. All legal systems deal with similar issues and behaviours, but each country categorises and identifies its legal standards and principles in different ways.

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General Principles Commercial Law Kenya Free Pdf

CA12 Business Law/Commercial notes

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General Principles and Commercial Law of Kenya. Ashiq Hussain. Mentally Disordered Persons. Private Companies. Selected Examination Questions. The Law of Contract.

There is no universally accepted definition of commercial law. Some examples of definitions:. It is the special rules which apply to contracts for the sale of goods and such contracts as are auxiliary thereto , namely contracts for the carriage of and insurance of goods and contracts the main purpose of which is to finance the carrying out of contracts of sale. Disney, The Elements of Commercial Law , p1. According to Prof. Sir Roy Goode, commercial law is that branch of law, which is concerned with rights and duties arising from the supply of goods and services in the way of trade. Goode on Commercial Law, p 8.


General principles and commercial law of Kenya. Responsibility: Ashiq Hussain. Imprint: Nairobi: Heinemann Educational Books, c Physical description.


General Principles and Commercial Law of Kenya

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The United Kingdom established its influence in Kenya in the 19th century. In , the European powers gathered at the Berlin Conference and partitioned East Africa into spheres of influence. In , Kenya became a British protectorate, and the highlands were opened to white settlers.

Law is a system of rules created and enforced through social or governmental institutions to regulate behavior, [2] with its precise definition a matter of longstanding debate. Private individuals may create legally binding contracts , including arbitration agreements that adopt alternative ways of resolving disputes to standard court litigation. The creation of laws themselves may be influenced by a constitution , written or tacit, and the rights encoded therein. The law shapes politics , economics , history and society in various ways and serves as a mediator of relations between people. Legal systems vary between countries, with their differences analysed in comparative law.

BUSINESS LAW THE KENYAN LEGAL SYSTEM THE NATURE OF LAW

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