KASNEB REVISION: INTRODUCTION TO LAW AND ETHICS

1). What is the standard of proof in civil cases?

A. Proof beyond reasonable doubt

B. Proof on a balance of probability 

C. Proof to the satisfaction of the other party

D. Proof to the satisfaction of both parties 

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The standard of proof in civil cases is typically "proof on a balance of probability." This means that the party making a claim or asserting a particular fact must show that it is more likely than not that their claim or assertion is true. It is a lower standard of proof compared to the criminal standard of "proof beyond reasonable doubt" used in criminal cases. In civil cases, the burden of proof is on the party bringing the claim, and they must convince the court or the jury that their version of events is more probable than the opposing party's version. The standard of proof may vary slightly in different legal systems, but "proof on a balance of probability" is the general standard in civil cases.

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2). Which one of the following is NOT a type of a writ under common law?

A. Harbeas Corpus

B. Mandamus

C. Certiorari 

D. Stare Decisis 

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The correct answer is D. Stare Decisis. 

Stare Decisis is not a type of writ under common law. It is a legal principle that refers to the practice of courts following precedents established in previous cases. It is a Latin term meaning "to stand by things decided." Stare Decisis helps ensure consistency and predictability in the application of law.

On the other hand, the other options listed are indeed types of writs under common law:

A. Habeas Corpus is a writ that protects against unlawful detention or imprisonment by requiring the custodian to bring the detained individual before a court to determine the legality of their detention.

B. Mandamus is a writ that orders a public official or government agency to perform a specific duty or act that they are legally obligated to perform.

C. Certiorari is a writ that is typically issued by a higher court, such as a supreme court, to review the decision of a lower court. It allows the higher court to determine if the lower court's decision was made correctly and should be upheld.

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3). ..................... is a principle of the rule of law.

A. Equality before the law and participation in decision making 

B. Adherence to moral and ethical principles 

C. Respect for authority and religious autonomy 

D. Freedom from slavery and forced labor 

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The correct answer is A. Equality before the law and participation in decision making.

The principle of equality before the law ensures that all individuals, regardless of their social, economic, or political status, are subject to the same laws and are treated equally by the legal system. It means that no one is above the law and that all individuals should have equal access to justice.

Participation in decision making is also an important aspect of the rule of law. It means that individuals should have the right to be involved in the creation, implementation, and review of laws and policies that affect them. This principle emphasizes the importance of democratic processes and the inclusion of diverse perspectives in decision-making processes.

Adherence to moral and ethical principles (option B) is a broader concept that relates to personal values and codes of conduct but does not specifically pertain to the rule of law.

Respect for authority and religious autonomy (option C) may be important principles in certain contexts, but they are not fundamental to the rule of law. The rule of law focuses on the equal application of laws and the protection of individual rights, rather than deference to authority or religious autonomy.

Freedom from slavery and forced labor (option D) is an important human rights principle, but it is not specific to the rule of law. The rule of law primarily deals with the fair and just application of laws, while freedom from slavery and forced labor falls under broader human rights frameworks.

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4). One of the following is not a way in which the Constitution of Kenya can be amended.

A. By popular initiative 

B. By parliamentary initiative 

C. By the people and parliament 

D. By County Assemblies 

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The correct answer is D. By County Assemblies.

In the Kenyan context, the Constitution of Kenya can be amended through several methods, but amending the constitution solely by County Assemblies is not one of them. Let's explore the other options to understand why.

A. By popular initiative: The Constitution of Kenya allows for amendment proposals to be initiated by the people through a popular initiative. This method requires collecting a certain number of signatures from registered voters in at least half of the counties in Kenya. Once the signatures are collected, the proposed amendment is presented to the Independent Electoral and Boundaries Commission (IEBC) for verification. If the IEBC confirms that the threshold of signatures has been met, the proposed amendment is then subjected to a referendum for public approval.

B. By parliamentary initiative: Amendments to the Constitution of Kenya can also be initiated by members of parliament. This method involves a member of parliament introducing a bill to amend the constitution in either the National Assembly or the Senate. The bill must go through the legislative process, including multiple readings, committee deliberations, and voting. For the amendment to pass, it requires the support of at least two-thirds of the members in each house.

C. By the people and parliament: This refers to a combination of both the popular initiative and parliamentary initiative. If a proposed amendment through a popular initiative successfully goes through the signature collection and verification process, it is then submitted to the county assemblies for consideration. The county assemblies can either approve or reject the proposed amendment. If at least 24 out of the 47 county assemblies approve it, the proposed amendment is forwarded to parliament. In parliament, the amendment bill must be supported by at least two-thirds of the members in each house for it to pass.

D. By County Assemblies: Unlike the other options, amending the Constitution of Kenya solely through County Assemblies is not a recognized method. While county assemblies play a role in the amendment process through the "people and parliament" method (as mentioned in option C), they do not have the power to independently initiate and pass constitutional amendments.

In summary, the Constitution of Kenya can be amended by popular initiative, parliamentary initiative, or a combination of both through the involvement of the people, county assemblies, and parliament. However, County Assemblies alone cannot amend the constitution.

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5). Which one of the following is not a type of judicial precedent?

A. Distinguishing Precedent 

B. General Precedent 

C. Declaratory Precedent 

D. Original Precedent 

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B. General Precedent

General Precedent is not a recognized type of judicial precedent. The other options mentioned are all valid types of judicial precedents:

A. Distinguishing Precedent: This occurs when a court finds that the facts of a current case are sufficiently different from those of a previous case, such that the legal principles established in the previous case do not apply to the current one.

C. Declaratory Precedent: This refers to a precedent that declares the law without actually applying it to a specific case. It typically involves a higher court making a definitive statement of legal principles that lower courts must follow.

D. Original Precedent: This refers to a precedent that is established by a court for the first time in a particular jurisdiction or on a particular issue. It arises when there is no existing binding precedent to rely on.

It's worth noting that the concept of "general precedent" is not widely recognized in legal systems. Precedents are typically specific to the facts and issues of particular cases rather than being considered as "general" in nature.

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6). In relation to the law of persons, one of the following is false.

A. An infant found in Kenya without parents automatically acquires the domicile of Kenya

B. A Kenyan citizen by birth who acquires the citizenship of another country loses the Kenyan citizenship 

C. A foreigner can acquire Kenyan nationality by registration 

D. A person who is a national of Kenya can lose his nationality by revocation

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The false statement is:

D. A person who is a national of Kenya can lose his nationality by revocation.

Kenya does not currently have provisions for revoking the nationality of its citizens. Once a person is recognized as a national of Kenya, they generally retain their citizenship unless they voluntarily renounce it or acquire citizenship of another country through naturalization, which could potentially result in the loss of Kenyan citizenship (option B). However, there is no automatic revocation of Kenyan nationality by the government.

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7). .................. is an out of court dispute resolution mechanism in civil disputes.

A. Litigation 

B. Arbitration 

C. Judicial Adjudication 

D. Judgement 

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The correct answer is B. Arbitration.

Arbitration is an out-of-court dispute resolution mechanism in civil disputes. It involves the submission of a dispute to one or more impartial individuals, known as arbitrators, who make a binding decision called an arbitration award. The process is less formal than litigation and allows the parties to resolve their dispute privately, without going to court. Arbitration is often used as an alternative to litigation when the parties want a more streamlined and efficient resolution process.

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8). Which one of the following correctly describes the distinction between a juristic person and a natural person? 

A. A juristic person is an extra terrestrial person while a natural person is one who is naturally found on earth 

B. A juristic person is non existent in the eyes of the law while a natural person is a human being with intrinsic rights

C. A juristic person is an abstract creation of the law granted rights of a natural person 

D. A juristic person is a fictional person with no legal rights while a natural person is a fictional person with rights 

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The correct option that describes the distinction between a juristic person and a natural person is:

C. A juristic person is an abstract creation of the law granted rights of a natural person.

A juristic person, also known as a legal person or artificial person, is an entity created by law that is recognized as having legal rights and duties similar to those of a natural person. Examples of juristic persons include corporations, nonprofit organizations, government bodies, and other entities that are treated as separate legal entities.

On the other hand, a natural person refers to an individual human being. Natural persons have inherent rights and responsibilities by virtue of their existence as human beings.

So, option C accurately captures the distinction between the two.

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9). A tort is ...........................

A. A civil wrong whose common law remedy is action for damages 

B. A breach of contract whose remedy is damages

C. A criminal wrong whose remedy is imprisonment or fine

D. Both a civil wrong and a breach of contract whose remedy is an action for damages 

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A tort refers to a civil wrong that causes harm or injury to another person or their property. It is a legal concept that exists to protect individuals from the harmful actions or omissions of others. When someone commits a tort, they have violated a duty owed to another person, resulting in harm or damage.

The most common remedy for a tort is an action for damages, which means that the injured party can seek compensation for the harm they have suffered. Damages may include medical expenses, property damage, loss of income, pain and suffering, and other losses caused by the tortious act.

Option A states that a tort is a civil wrong whose common law remedy is an action for damages. This means that when someone commits a tort, the injured party can bring a civil lawsuit against the wrongdoer seeking monetary compensation for the harm caused. The concept of a tort is based on common law, which means that it has developed through court decisions rather than being created by legislation.

Options B and C are not correct because they describe breaches of contract and criminal wrongs, respectively, which are distinct from torts. A breach of contract occurs when one party fails to fulfill their obligations under a contractual agreement, and the usual remedy is damages. Criminal wrongs involve violations of criminal laws and can result in punishments such as imprisonment or fines imposed by the state.

Option D is not entirely accurate either because it suggests that a tort can also be a breach of contract, which is not the case. While some actions may involve both a tort and a breach of contract, they are separate legal concepts with distinct elements and remedies.

In summary, option A is the correct answer because it accurately describes a tort as a civil wrong that gives rise to a remedy in the form of an action for damages.

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10). Which one of the following is not a requirement in the rule of Rylands-V-Fletcher.

A. The defendant must have brought something on to his land

B. The thing brought into one's land must be one likely to cause mischief 

C. The use of the land must be non-natural 

D. The defendant must have been negligent 

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D. The defendant must have been negligent.

In the rule of Rylands v. Fletcher, negligence is not a requirement. The rule holds that a person who brings something onto their land, which is likely to cause harm if it escapes, will be liable for any damage caused when it does escape. The key elements of the rule are:

A. The defendant must have brought something onto their land.

B. The thing brought onto the land must be one likely to cause mischief or harm if it escapes.

C. The use of the land must be non-natural, meaning it goes beyond the ordinary uses of land.

Negligence, which refers to the failure to exercise reasonable care, is not a necessary element in establishing liability under the rule of Rylands v. Fletcher. The rule imposes strict liability, holding the defendant responsible for any damage caused by the escape of something they brought onto their land, regardless of their level of care or fault.

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11). Which of the following contracts needs not be in writing?

A. A contract for the sale or transfer of an interest in land

B. A contract of insurance 

C. A contract of guarantee 

D. A contract for the sale of motor vehicle 

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C. A contract of guarantee.

A contract of guarantee does not necessarily need to be in writing to be legally binding. While it is generally recommended to have written agreements for clarity and enforcement purposes, a contract of guarantee can be formed orally or even implied through the conduct of the parties.

Under normal circumstances, contracts for the sale or transfer of an interest in land (Option A) generally need to be in writing to be enforceable. However, it's important to note that contract laws can vary by jurisdiction, so there may be specific exceptions or variations to this general rule based on local laws.

On the other hand, contracts of insurance (Option B), contracts of guarantee (Option C), and contracts for the sale of motor vehicles (Option D) typically do not need to be in writing to be legally binding. These types of contracts can be formed orally or even implied through the conduct of the parties involved.

It is worth mentioning that while these contracts can be valid without being in writing, having a written contract is always recommended as it provides a clear record of the agreement, helps prevent disputes, and makes it easier to enforce the terms if any issues arise. Therefore, even if not required, it is often advisable to have written agreements for such contracts to protect the interests of all parties involved.

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12). A change, variation or modification of a term of an offer is referred to as..............

A. An acceptance 

B. A cross offer 

C. A counter offer 

D. A standing offer

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C. A counter offer.

A counter offer is a response made by the offeree (the person receiving an offer) that includes a change, variation, or modification to the terms of the original offer. When the offeree proposes different terms, it is considered a rejection of the initial offer and becomes a new offer in itself.

Here's an example to illustrate the concept:

Let's say Person A offers to sell a car to Person B for 3,500,000KES. If Person B responds by saying, "I'm willing to buy the car, but I can only pay 2,800,000KES," that response from Person B is a counter offer. Person B has changed the price term of the original offer from 3,500,000KES to 2,800,000KES.

In this scenario, the counter offer by Person B acts as a rejection of the original offer made by Person A. Person A can then decide whether to accept the new terms proposed by Person B, reject them, or propose another counter offer. The negotiation process can continue until both parties reach an agreement or decide not to proceed with the transaction.

It's important to note that a counter offer creates a new offer and terminates the original offer. It essentially shifts the power of acceptance from the original offeror (Person A) to the offeree (Person B), who becomes the new offeror. Therefore, the party who made the counter offer (Person B in this case) has the power to accept or reject subsequent offers made by the other party (Person A).

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13). Which one of the following is false with reference to time limitations of a claim or award in Kenya?

A. A claim for rent based on a rental contract must be enforced within 6 years

B. A claim based on a breach of contract must be enforced within 6 years 

C. An arbitral award must be enforced within 6 years

D. A claim for the recovery of land must be enforced within 6 years

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The false statement regarding time limitations of a claim or award in Kenya is:

D. A claim for the recovery of land must be enforced within 6 years.

In Kenya, a claim for the recovery of land must be enforced within 12 years, not 6 years. The Limitation of Actions Act in Kenya sets the time limit for bringing a claim for the recovery of land at 12 years from the date the right to bring the claim arose.

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14). Which one of the following best describes a contract of sale?

A. It is a contract where goods are exchanged for goods

B. It is a contract under which goods are delivered by one party to another where that other person holds them as directed 

C. It is a contract whereby the seller transfers or agrees to transfer the property in the goods to the buyer for a monetary consideration 

D. It is a contract whereby the seller transfers or agrees to transfer property in the goods to the buyer for no consideration 

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C. It is a contract whereby the seller transfers or agrees to transfer the property in the goods to the buyer for a monetary consideration.

A contract of sale is a legal agreement between a seller and a buyer regarding the transfer of goods. In this context, "goods" refer to any tangible, movable items that can be bought or sold, such as products, merchandise, or personal property.

Option C correctly describes a contract of sale. It states that it is a contract whereby the seller transfers or agrees to transfer the property in the goods to the buyer. This means that the ownership and legal rights associated with the goods are transferred from the seller to the buyer. The seller relinquishes their ownership rights, and the buyer acquires the property rights to the goods.

Additionally, option C mentions that this transfer of property occurs for a monetary consideration. This means that the buyer provides payment to the seller in exchange for the goods. The consideration can be in the form of money, checks, credit card payments, or any other agreed-upon method of payment.

It's important to note that the contract of sale is not limited to a specific type of transaction. It can involve the sale of goods between businesses (B2B), businesses and consumers (B2C), or even between individuals (C2C). The key elements are the transfer of property in the goods and the exchange of monetary consideration.

Options A, B, and D do not accurately describe a contract of sale:

- Option A suggests that goods are exchanged for goods, which is a barter system rather than a contract of sale. In a contract of sale, the exchange is based on monetary consideration, not a direct exchange of goods.

- Option B refers to a situation where one party holds the goods on behalf of another but does not address the transfer of ownership and the consideration aspect, which are essential elements of a contract of sale.

- Option D suggests a transfer of goods without any consideration. However, a contract of sale typically involves an exchange of goods for a monetary consideration, as mentioned in option C.

In summary, option C best describes a contract of sale by encompassing the transfer of property in the goods from the seller to the buyer in exchange for a monetary consideration.