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FAQs on the Breach and Enforcement of Contracts in Kenya

By 23 July 2021September 5th, 2021No Comments


Breach and Enforcement of Contracts in Kenya

How do I prove a verbal contract?

Verbal/Oral contracts can be proved by extraneous evidence e.g., conduct, exchange of invoices and receipts, bank transfers, WhatsApp communication, email correspondence etc.

Remedies for breach of contracts in Kenya?

Include: Damages, Rescission, Specific Performance, Restitution.

What is ‘specific performance’ of a contract?

This is a limited remedy granted by courts where damages alone would not be adequate compensation for a breach of contract; and the court therefore orders that the contract be performed by the party in breach.

What is a plaint for breach of contract in Kenya?

A plaint sets out the facts of the breach to be litigated upon in court and the remedies sought; and it is filed alongside witness statements and accompanying annexures.

Breach of contract cases in Kenya?

  1. Kenya Industrial Estates Ltd v Lee Enterprises Ltd NRB CA Civil Appeal No. 54 of 2004 [2009]eKLR on general damages
  2. Bid Insurance Brokers Limited v British United Provident Fund [2016] eKLR on oral contracts.

What constitutes frustration of  a contract  in Kenya?

Frustration of a contract discharges the obligation of a party to perform a contract when there is a supervening event that amounts to a frustration under law. E.g., if there is an employment contract to be performed in Kenya by a foreigner and the foreigner fails to obtain a work permit from the Kenyan government, then that contract is frustrated by a supervening event outside the control of the parties discharging them from the contract.

A frustrating event is an outside event or extraneous change of situation  that takes place without blame or fault on the side of the party that releases a party from the duty to perform a contract.

However, mere hardship in performing your obligations under law does not impute frustration. E.g., the fact that your business has collapsed and you are unable to repay a loan is not frustration.

A force majeure event stipulated in a contract is also a frustrating event.

Are illegal contracts enforceable in Kenya?

Courts will not enforce a contract arising out of a transaction which is illegal. For instance, a contract between parties that is used to facilitate money laundering; or an agreement to share proceeds of corruption between parties etc.


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