CPA
Foundation Leval
Introduction to Law and Governance August 2021
Suggested Solutions

Examples of criminal offenses include theft, assault, murder, and fraud.

Civil Law

Civil law deals with disputes between individuals, organizations, or entities. It focuses on resolving conflicts and providing compensation to the injured party. The goal is to restore the affected party to their original state before the dispute.

Examples of civil cases include contract disputes, personal injury claims, and family law matters.

2. Gender Bias: Traditional customs and practices embedded in African Customary Law may exhibit gender bias, disadvantaging certain groups, especially women. This can conflict with modern principles of equality and human rights.

3. Inflexibility: Customary laws may be resistant to change, making it challenging to adapt to evolving societal norms and values. This lack of flexibility can hinder the legal system from keeping pace with social developments.

4. Limited Legal Expertise: The reliance on oral traditions and community leaders for the interpretation and application of customary law may result in inconsistent decisions. There might be a lack of legal expertise and training in the formal aspects of law.

5. Conflict with National Laws: African Customary Law may conflict with national laws and constitutions, leading to legal inconsistencies. Harmonizing traditional practices with modern legal frameworks can be a complex and contentious process.

6. Lack of Legal Certainty: Due to the informal and decentralized nature of customary law, there may be a lack of legal certainty and predictability, making it difficult for individuals to know and understand their legal rights and obligations.

2. Potential for Abuse of Power: Critics argue that the broad powers granted in delegated legislation can be abused, allowing authorities to create laws without sufficient checks and balances. This may lead to arbitrary decision-making.

3. Insufficient Parliamentary Scrutiny: Delegated legislation may not receive the same level of scrutiny as primary legislation passed by the legislature. This can result in laws being made without thorough examination by elected representatives.

4. Complexity and Lack of Transparency: The use of delegated legislation can result in complex and technical regulations that are challenging for the public to understand. This lack of transparency may hinder citizen awareness and participation.

5. Erosion of Separation of Powers: Delegated legislation can blur the lines between the legislative and executive branches of government, potentially undermining the principle of separation of powers, which is essential for a healthy democracy.

6. Inadequate Consultation: Critics argue that the process of creating delegated legislation may not involve sufficient consultation with affected parties or the public, leading to regulations that do not adequately address diverse interests.

2. Terms of Delivery: The agreement specifies that the delivery should be in boxes containing 50 tins each. However, some boxes supplied contained 30 tins, and others contained 55 tins. This raises concerns about the adherence to the agreed-upon terms of delivery.

3. Quantity Discrepancy: Tunda Tamu Fruits Company Ltd. made a delivery of 1,100 kgs of canned fruits instead of the agreed-upon 1,000 kgs. Wesley Patel may have grounds for complaint due to the variance in quantity delivered.

4. Non-Conformity with Specifications: The variation in the number of tins per box and the excess quantity delivered may constitute a non-conformity with the specifications agreed upon in the contract. This could be a breach of contract on the part of the supplier.

5. Remedies for Breach of Contract: Wesley Patel may be entitled to remedies for the breach of contract, including seeking compensation for any losses incurred due to the non-conformity with the agreed specifications and quantity.

6. Communication and Resolution: Wesley Patel should communicate his grievances to Tunda Tamu Fruits Company Ltd. and attempt to resolve the issue amicably. This may involve negotiations for compensation or a correction of the non-conformities in the delivered goods.

• Agency Relationship: Chief Kingi likely had an agency relationship with Oakland Company Ltd.
• Termination of Employment: The termination of Chief Kingi should comply with employment laws.
• Obligation to Inform Customers: The company has an obligation to inform customers about significant changes, especially if Chief Kingi was involved in financial transactions.
• Customer's Payment to Former Employee: Legal implications depend on the nature of the payment and Chief Kingi's authority post-termination.
• Conversion and Misappropriation: Chief Kingi's failure to remit the money may constitute conversion or misappropriation.

Advice:

For Jimmy Brian:

• Responsibility of the Company: The company has a responsibility to inform clients of changes in personnel, especially those handling financial transactions. If they failed to do so, it may impact their case.
• Terms of Agreement: Review the terms of Jimmy Brian agreement with the company. If there were no specific clauses requiring Jimmy Brian to verify the employment status of the salesperson, it may strengthen Jimmy Brian's position.
• Cooperate with the Company: If Jimmy Brian was unaware of Chief Kingi's dismissal, he should cooperate with the company in the investigation and recovery process.
• Retain Proof of Payment: If Jimmy Brian has evidence of the payment, such as receipts or bank records, it can be crucial in establishing his innocence.
• Counterclaims: Depending on the circumstances, Jimmy Brian may explore the possibility of counterclaims, such as negligence on the part of the company for not adequately informing him of the Chief Kingi's termination.

For Oakland Company Ltd.:

• Duty to Inform: Companies generally have a duty to inform clients or customers of significant changes, especially if those changes could impact ongoing transactions. If the company failed in this duty, it may weaken their position in a legal dispute.
• Review Termination Procedures: Ensure that the termination of Chief Kingi followed proper procedures as per employment laws.
• Inform Customers: Take appropriate steps to inform customers, including Jimmy Brian, about Chief Kingi's dismissal and the company's position regarding transactions made after his termination.
• Consider Legal Action Against Chief Kingi: Pursue legal action against Chief Kingi for conversion or misappropriation of funds.

• Creation: A statutory corporation is created by a specific statute or law enacted by the government.
• Legal Status: It is a separate legal entity distinct from the government and individuals, possessing legal personality.
• Objectives and Functions: The objectives and functions are outlined in the enabling legislation, serving specific public or quasi-public purposes.
• Government Control: It may have varying degrees of government control and oversight, with key personnel appointments and regulatory scrutiny.
• Powers and Functions: The powers and functions are defined by the governing legislation, and it operates to fulfill specific statutory mandates.

Registered Corporation:

• Creation: A registered corporation is created by filing with the relevant government authorities and complying with the requirements of company registration laws.
• Legal Status: It is a separate legal entity distinct from its owners (shareholders) and possesses legal personality.
• Objectives and Functions: The objectives and functions of a registered corporation are outlined in its articles of incorporation and bylaws, generally for profit-making purposes.
• Government Control: While subject to regulations, a registered corporation operates with greater autonomy and is not directly controlled by the government in its day-to-day activities.
• Powers and Functions: The powers and functions are determined by the corporation's internal documents, and it has flexibility in conducting its business within legal and regulatory boundaries.

2. Return of Possession: If the tenant voluntarily returns possession of the leased premises to the landlord and the landlord accepts it, there may be an implied surrender of the lease.

3. Conduct Indicating Intent: Actions or conduct by both parties that clearly indicate an intention to terminate the lease can lead to an implied surrender. This could include the tenant vacating the premises and the landlord accepting new tenants.

4. Abandonment: If the tenant abandons the leased premises without an intention to return, and the landlord acts in a manner consistent with accepting the surrender, it may be implied that the lease is terminated.

5. Key Return: The tenant returning keys or access devices to the landlord without an explicit agreement for a sublease or assignment might be considered an act of surrendering the lease.

6. Non-Payment and Acceptance: If the tenant fails to pay rent, vacates the premises, and the landlord accepts the keys or takes possession without pursuing further rent payments, it may imply a surrender of the lease.

7. Agreement for New Tenancy: If the parties enter into a new lease agreement for the same premises with different terms, it may imply the termination of the original lease.

8. Permanent Alterations: If the tenant makes permanent alterations to the property with the landlord's knowledge and consent, it may be interpreted as surrendering the lease, especially if the alterations are inconsistent with the lease terms.

9. Conduct Inconsistent with Lease: If either party engages in conduct inconsistent with the continuation of the lease, it may imply a surrender. For example, the landlord repossessing the premises without objection from the tenant.

10. Acts of Both Parties: Acts, statements, or behavior by both the landlord and tenant that demonstrate a clear understanding that the lease is terminated may lead to an implied surrender.

(ii) Rights of a Buyer

The buyer in a sale of goods contract is entitled to various rights, including:

• Right to Transfer of Ownership: The buyer has the right to obtain ownership of the goods in exchange for payment.
• Right to Conformity: The goods must conform to the contract description, be of satisfactory quality, and fit for the purpose for which they are intended.
• Right to Delivery: The seller is obligated to deliver the goods to the buyer as per the terms of the contract.
• Right to Reject Defective Goods: If the goods do not meet the agreed-upon standards, the buyer has the right to reject them within a reasonable time.
• Right to Remedies: In case of breach of contract, the buyer has various remedies, including the right to seek damages or specific performance.
• Right to Inspect: The buyer has the right to inspect the goods before accepting them, ensuring they meet the contractual specifications.
• Right to Terminate the Contract: In certain circumstances, the buyer may have the right to terminate the contract if the seller fails to fulfill their obligations.

(iii) Rules Governing the Passing of Risk

In a sale of goods contract, the passing of risk from the seller to the buyer is governed by several rules:

• Rule of Property Transfer: The general rule is that risk follows the transfer of property. If the property has passed to the buyer, the risk also passes to the buyer.
• Agreement of the Parties: The parties may agree to specific terms regarding the passing of risk in the contract. Such terms may determine when the risk is transferred, regardless of property transfer.
• Delivery to a Carrier: If the contract involves the goods being delivered to a carrier for transportation, the risk may pass to the buyer upon delivery to the carrier, even if property transfer occurs later.
• Goods in Transit: If the goods are damaged while in transit, the party bearing the risk is determined by the terms of the contract, the applicable trade usage, or the default rules under relevant sale of goods laws.
• Unascertained Goods: For unascertained goods, the risk remains with the seller until the goods are ascertained and appropriated to the contract.

1. Communication of Acceptance: Acceptance must be communicated to the offeror. Silence generally does not constitute acceptance unless there is a clear indication by the parties or the nature of the offer implies acceptance through silence.
2. Authorized Means of Communication: The acceptance must be communicated through the means specified or implied by the offeror. If the offer specifies a particular method of acceptance (e.g., email, post), the offeree must adhere to that method.
3. Acceptance by Performance: In unilateral contracts, acceptance may be through performance. The offeree accepts by performing the requested act, and communication of acceptance may not be necessary unless the offeror specifies otherwise.
4. Acceptance Must Be Unconditional: Acceptance must be absolute and unconditional. Any attempt to vary the terms of the offer is considered a counter-offer and does not constitute acceptance.
5. Mirror Image Rule: The acceptance must mirror the terms of the offer. Any deviation from the offer's terms may be considered a rejection and a new offer (counter-offer).
6. Acceptance Must Be Intentional: The offeree must intend to accept the offer. If acceptance is a mistake or made under duress, it may be voidable.
7. Acceptance Must Be within the Timeframe: The offeree must accept within the time specified in the offer or within a reasonable time if no timeframe is specified. Failure to do so may result in the lapse of the offer.
8. Acceptance of Unilateral Contracts: In unilateral contracts, acceptance is typically complete upon performance of the specified act. Notification of performance is generally not required unless the offeror requests it.
9. Revocation of Acceptance: Once accepted, an offer cannot be revoked by the offeror. However, if the offeror becomes aware of the acceptance before communication, they may prevent a contract's formation by promptly communicating the revocation of the offer.
10. Mode of Acceptance in Instantaneous Communication: In cases of instantaneous communication (e.g., telephone, instant messaging), acceptance is typically effective when received by the offeror, not when sent.

1. Truth or Justification: A complete defense is proving that the statement is substantially true. If the defendant can demonstrate that the statement reflects the truth, they may be protected from a defamation claim.
2. Privilege: Certain communications are considered privileged and are protected from defamation claims. Privilege can be either absolute or qualified. Absolute privilege typically applies to statements made in specific contexts, such as judicial proceedings, legislative bodies, or certain official reports. Qualified privilege may apply to situations where there is a legitimate interest in the communication, such as employment references or statements made in the public interest.
3. Fair Comment or Honest Opinion: Expressing an honest opinion on matters of public interest is a defense. To succeed, the defendant must demonstrate that the statement was a genuine expression of opinion, based on true facts, and not maliciously made.
4. Consent: If the plaintiff consented to the publication of the allegedly defamatory statement, it can be a defense. However, the consent must be genuine and informed.
5. Offer of Amends: In some jurisdictions, the defendant can make an offer of amends by apologizing and offering to publish a correction or retraction. This may limit the damages the plaintiff can claim.
6. Public Interest Defense: If the statement was made in the public interest and the defendant can demonstrate that they acted responsibly, this may serve as a defense. This often applies to statements made by journalists or in the context of investigative reporting.
7. Triviality: In some cases, the defendant may argue that the allegedly defamatory statement is so trivial that it does not harm the plaintiff's reputation.
8. Statutory Defenses: Some jurisdictions have specific statutory defenses that defendants can rely on, such as the defense of innocent dissemination, which applies to distributors or intermediaries who were not aware of the defamatory nature of the statement.

1. Principle of Insurable Interest: The principle of indemnity is closely tied to the concept of insurable interest. To claim indemnity, the insured must have a genuine financial interest in the subject matter of the insurance. This means that the insured should suffer a financial loss if the insured event occurs. Without insurable interest, the contract might be considered a wager and could be void.
2. Principle of Proximate Cause: The principle of proximate cause determines which event or chain of events is the primary or dominant cause of the loss. In applying the principle of indemnity, the insurer is liable for losses directly resulting from a covered peril. If the proximate cause is covered, the insurer indemnifies the insured. However, if an excluded peril is the proximate cause, indemnity may be denied. This principle helps in determining the extent of the insurer's liability based on the closest and most direct cause of the loss.

These two principles work in conjunction to ensure that insurance contracts operate in a manner consistent with the principle of indemnity, providing financial protection to the insured without encouraging moral hazard or overcompensation for losses.

Jurisdiction

• Original and appellate jurisdiction.
• Exclusive jurisdiction over disputes related to presidential elections.
• Appellate jurisdiction over appeals from the Court of Appeal and other designated courts.
• Appeals as a matter of right for constitutional interpretations or matters of general public importance.
• Advisory opinions on matters concerning County Governments.
• Determination of the validity of a state of emergency, its extension, or related legislation.

Composition

• Seven judges, including the Chief Justice (President), Deputy Chief Justice (Vice-president), and five other judges.
• Judges, including the Chief Justice, serve until mandatory retirement at 70 years.
• Chief Justice limited to a maximum of 10 years in the position.
• After 10 years as Chief Justice, the individual may continue as a judge, potentially exceeding the seven-member limit.

1. Payment of the Full Price: The hirer can terminate the contract by making full payment of the agreed-upon purchase price. Once the entire amount is paid, ownership of the goods is transferred to the hirer.
2. Voluntary Surrender: The hirer may choose to voluntarily surrender the goods to the owner (the hire purchase company) if they are unable to continue with the payments. In such cases, the hirer may lose any prior payments made but is relieved of further financial obligations.
3. Early Termination Clause: Some hire purchase contracts include early termination clauses that allow the hirer to end the agreement before the scheduled completion date. However, there may be penalties or additional fees associated with early termination.
4. Agreement Between Parties: The owner and hirer may mutually agree to terminate the hire purchase contract. This could involve renegotiating terms, settling outstanding amounts, or reaching a compromise that is acceptable to both parties.
5. Default and Repossession: If the hirer defaults on payments, the owner may have the right to repossess the goods. Repossession is often a remedy available to the owner when the hirer fails to fulfill the contractual obligations. After repossession, the contract may be terminated, and the goods may be resold.
6. Legal Proceedings: In cases of persistent default or breach of contract, the owner may resort to legal proceedings to terminate the hire purchase contract. This typically involves seeking a court order for repossession or other appropriate remedies.

Legal Principles Applicable:

1. Contract Law: The purchase of the house from Nick Investments Limited constitutes a contract. Once a contract is formed, both parties have legal obligations, and the terms of the contract govern their rights and duties.
2. Cheque Issuance: Issuing a cheque creates a legal obligation to pay the specified amount to the payee. In this case, Onesmus Mwamburi issued a banker's cheque payable on 5 January 2021 for Sh.2.5 million to Nick Investments Limited.
3. Stop Payment Order: Onesmus Mwamburi instructed his bank, Mbasta Finance Ltd, not to honor the cheque by issuing a stop-payment order on 2 January 2021. However, the cheque was presented and paid by the bank to Nick Investments Limited.
4. Value of the House: Onesmus Mwamburi's realization that the house was not worth the price raises questions about the quality and representation of the property. The value and condition of the property are crucial considerations in a purchase contract.

Legal Advice:

Given the circumstances, Onesmus Mwamburi may consider the following steps:

1. Review Contract Terms: Carefully review the terms of the purchase contract with Nick Investments Limited to assess if there are any provisions regarding the quality or representation of the property.
2. Consult with Nick Investments Limited: Engage in communication with Nick Investments Limited to discuss concerns about the value of the house. Explore the possibility of renegotiating the terms or finding an amicable resolution.
3. Legal Remedies: Depending on the contract terms and the nature of the misrepresentation, consider to explore potential legal remedies, such as rescission of the contract or seeking damages.
4. Bank Liability: Explore the possibility of holding Mbasta Finance Ltd liable for honoring the cheque despite the stop-payment order. This may involve discussing the matter with the bank on potential remedies.

1. General Partnership Liability: In a general partnership, each partner is personally and jointly liable for the debts and obligations of the partnership. This means that Simon Peter, as a general partner, may be personally responsible for the loan borrowed by Andrew Jones and Mark Jones in the firm's name.
2. Notice of Demand: The letter of demand from Mapeni Bank Ltd. indicates that the partners, including Simon Peter, are required to service a loan of Sh.1 million. The bank is exercising its right to seek payment from the partners based on the partnership's liability.
3. Joint and Several Liability: Partners in a general partnership are often jointly and severally liable. This means that each partner can be individually held responsible for the full amount of the debt. Simon Peter may be required to contribute to the repayment of the entire loan amount, even if other partners default.
4. Partnership Agreement: The terms of the partnership agreement, if any, should be reviewed. It may outline the specific responsibilities of each partner and the procedures for handling partnership debts. Simon Peter should check for any provisions addressing the borrowing of loans in the firm's name.

Legal Advice:

Given the circumstances, Simon Peter may consider the following steps:

1. Review Partnership Agreement: Examine the partnership agreement, if one exists, to understand the terms and obligations regarding partnership debts. It may provide insights into the rights and responsibilities of each partner.
2. Consult with Partners: Engage in communication with Andrew Jones and Mark Jones to discuss the situation and potential solutions. Cooperation among partners is essential in addressing partnership liabilities.
3. Negotiation with the Bank: Explore the possibility of negotiating with Mapeni Bank Ltd. to establish a repayment plan or seek favorable terms. Banks may be open to discussions to avoid legal disputes.

1. Policy Voidance: Non-disclosure may lead to the entire insurance policy being declared void ab initio (from the beginning). The insurer can treat the contract as if it never existed, and the insured may lose coverage.
2. Claim Denial: If non-disclosure is discovered after a claim is made, the insurer may deny the claim based on the failure to disclose material information. This can result in the insured not receiving compensation for the loss or damage.
3. Return of Premium: In some cases, the insurer may choose to return the premium paid by the insured if the policy is voided due to non-disclosure. However, this is not always a guaranteed outcome.
4. Legal Action: The insurer may have the right to take legal action against the insured for fraudulent or negligent non-disclosure. This can result in financial penalties or other legal consequences for the insured.
5. Loss of Insurability: A history of non-disclosure may make it more challenging for the insured to obtain insurance coverage in the future. Insurers may view the individual as a higher risk.
6. Impact on Third Parties: Non-disclosure can have consequences beyond the insured and insurer, especially if third parties are involved. For example, if a third party relies on the insurance coverage that becomes void, they may suffer financial losses.
7. Regulatory Action: In some jurisdictions, insurance regulators may take action against insurers or individuals for non-disclosure-related violations. This can include fines or other regulatory measures.

1. Interpretation of Laws: The judiciary interprets and applies laws, including the constitution. Courts play a crucial role in clarifying the meaning of legal provisions and ensuring consistency in their application.
2. Adjudication of Disputes: One of the primary functions of the judiciary is to resolve disputes brought before the courts. This includes civil and criminal cases, as well as administrative and constitutional matters.
3. Protection of Rights and Freedoms: The judiciary safeguards individual rights and freedoms by adjudicating cases involving violations of constitutional rights. Courts may issue judgments and orders to protect citizens from unlawful actions by the state or private entities.
4. Review of Executive Actions: The judiciary has the authority to review the actions of the executive branch to ensure they comply with the law. This includes assessing the constitutionality of government decisions and administrative actions.
5. Precedent Setting: Judicial decisions create precedents that serve as legal references for future cases. Precedents contribute to the development and evolution of legal principles, ensuring consistency in the application of the law.
6. Ensuring Fair Trials: The judiciary is responsible for guaranteeing fair and impartial trials. This includes protecting the rights of defendants, ensuring due process, and overseeing the conduct of legal proceedings.
7. Legal Interpretation in Statutory Matters: Courts interpret statutes and regulations, providing guidance on their application. This involves analyzing legislative intent and resolving ambiguities in the law.
8. Judicial Review: The judiciary has the power of judicial review, allowing courts to review the constitutionality of laws and government actions. This ensures a system of checks and balances among the branches of government.
9. Resolution of Constitutional Issues: The judiciary is often the final arbiter in matters of constitutional interpretation. Courts decide on constitutional challenges and provide authoritative interpretations of the constitution.
10. Guardian of the Rule of Law: The judiciary plays a critical role in upholding the rule of law by ensuring that all individuals, including government officials, are subject to and accountable under the law.