JULIUS LAW SCHOOL GUIDE

Cause of action RE: CAUSE OF ACTION. In AUTO GARAGE Vs MOTOKOV(1971)EA392 defines a cause of action as; i) that right of relief is enjoyed by the plaintiff, ii) that the right was violated and hence damages, iii) that the defendant is liable for the said violation, In A.G Vs MAJ. GEN. TINYEFUZA SCCA NO.1/1997 adopting the definition in Mulla on Code of Civil Procedure,Vloume 1,14 th Edition  at page206,WAMBUZI,CJ stated that “’ A cause of action’ means every fact,which,if traversed,it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In otherwords, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. The court went on to say that”… it must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. That it is not limited to the actual infringement of the ri...

DEFENCES IN NEGLIGENCE Causation is considered when determining whether or not the claimant has accepted a risk of harm or voluntarily taken it or indeed has otherwise contributed to his own damage by taking insufficient care for his own safety. If the claimant has contributed so much to the damage suffered as to be entirely responsible, then this will probably result in a successful plea of Novus actus interveniens. Therefore, the following defences are available for the defendant in negligence. CONTRIBUTORY NEGLIGENCE This is where the claimant contributes to his/her ow injury, in other words, it is a failure by the claimant to take reasonable care for his/her own safety thus contributing to the damage which he/she complains about. It also applies to situations where the claimant’s behavior does not cause the accident itself but contributes to the amount of damage done. Thus in Butterfield v Forrester 1 , it was held that if the defendant could establis...

DEATH AS A CAUSE OF ACTION Introduction. A cause of action may arise as a result of the wrongful death of one party caused by the negligence of the defendant. When a person dies or is killed due to the negligence of another, including murder, the surviving members of the victims family may sue for wrongful death. Most wrongful death claims follow in the wake of criminal trials, using similar evidence but with a lower standard of proof. Regardless, someone found liable for wrongful death may or may not be convicted of a crime associated with the death. A suit for wrongful death may only be brought by the personal representative of the decedent’s estate. Every state has a civil “wrongful death statute” or set of statutes, which establish the procedures for bringing wrongful death actions. Actions for personal injury, conscious pain and suffering, or expenses incurred prior to the defendant’s death are also brought by the personal representative. What are ...

MORTGAGES • S.2 Mortgage Act also gives a definition of a mortgage • In the case Matambulire v Yozefu Kimera [1975] HCB 150 a mortgage was defined as a transaction where the owner uses his/her interest in land as security for the repayment of a loan. • Santley v Wilde [1899]12 Ch.474 A mortgage is a conveyance of land or an assignment of chattels as a security for the payment of a debt or discharge of some other obligation for which it is given.Cont’d Who can create a mortgage • S.3( 1) Types of mortgages i) Legal mortgages ii) Equitable mortgages ( Informal)Legal Mortgages • This is a mortgage that is registered as provided under s.3(4) of the Mortgage Act • A legal mortgage is created by deed. It is created by signing a mortgage deed which is then registered as an encumbrance on a certificate of title.Advantages of a registered mortgage • Rights are automatic e.g sale without recourse to court • Third party is put on notice of the legal interest. • Creates rights in rem and priority ...

LEASES • S.3(5) of the Land Act defines a leasehold tenure as a form of tenure where one party grants to another exclusive possession of land for a period usually but not necessarily in return for a monetary consideration called rent.Fixed term lease v Periodic lease • A fixed term lease is one whose duration is fixed by the parties at the onset so that once the term expires the lease comes to an end. • A periodic lease is a lease which continuously renews from one term to another until terminated by proper notice served by either party.Tenancy at will v Tenancy at sufferance • A tenancy at will is implied where a landowner allows another person to enter into possession as a tenant without specification of the terms of the tenancy agreement • Either party may terminate such a tenancy at any time. • A tenancy at sufferance is implied where a former tenant remains in possession after the expiration of a fixed term without the consent and without the objection of a land owner. It is termi...

VARIOUS FORMS OF LAND RECORDINGS • Most countries use one of three basic systems of land conveyancing or land ownership and transfer. These are:  Private conveyancing  Registration of deeds  Registration of title ( The torrens system)  Private conveyancing • Conveyancing is the transfer of legal title of property from one person to another. • A system of conveyancing is usually designed to ensure that the buyer secures title to the land together with all the rights that run with the land. • The conveyancer’s role is to carry out due diligence – known as searches – about the transacted property. • These are designed to uncover factors that they may not know about, which could impact the buyer’s enjoyment of the property.Cont’d • The purchaser in a private conveyance can acquire only the title the vendor held, which depends on the title held by the vendor's predecessors. • Under Private Conveyancing, the ownership of land was to be proved by long complicated instruments (docume...