Kenya - Law of Persons

7/22/2019 Kenya - Law of Persons

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13) Law of Persons

i) Natural and artificial persons

ii) Individual persons and corporations

iii) Persons of unsound mind

iv) minors

INTRODUCTION

The word person is derived from the Latin word persona which has a long history but

eventually came to be used in the sense of a being who is capable of sustaining rights and duties.The layman has a different concept of what is meant by the term persons from the concept

which eist at law. ! layman thin"s only of natural persons# but the law also thin"s of legal

persons. In the legal sense# a person is not necessarily a human being. Legal persons are personswho are given legal personality by the law. The term also includes certain artificial entities#

which are given fictitious legal personality by law. $ne of the main purposes of giving these

artificial persons a legal personality is to enable easier enforcement of rights and liabilities.

Personality therefore has a wider significance than %ust humanity. &enya laws recognise twopersons upon whom it confers rights and imposes obligations. These are' (

( Natural Persons.

( !rtificial persons.

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The natural persons are human beings li"e you and me. -e eist in fact and in law. -e arecapable of having rights and obligations under the law. owever# in law there may be men and

women who are not persons at law e.g. in earlier *oman law# slaves were considered as mere

things /chattels) without rights and duties. Li"ewise# in *oman law# an eile or a captiveimprisoned by the enemy forfeited his rights but if he was pardoned or freed# his personality

returned to him. In +nglish law# if a person became an outlaw# he lost his personality and became

incapable of rights and duties. !ccording to olland# the re0uisites of a normal human beinginclude the fact that he must be recogni1ed as possessing a sufficient status to enable him topossess rights and duties and must be born alive.

!*TI2I3I!L P+*,$N,These are those to whom the law has given a fictitious legal personality. They are real or

imaginary beings to which personality is attributed by law by way of fiction where it does not

eist in fact. The legal personality given on these entities enables them to incur rights andliabilities# which may be en%oyed as in the case of natural persons.

They are also called 4uristic persons. They only eist in contemplation of the law# not by fact.

These persons are referred to as a corporations or incorporated associations. The maindistinguishing feature between natural person and artificial person is perpetual succession. -hen

a natural person dies his rights and obligations die with him but an artificial entity with legal

personality of its own never dies. +ample' The occupant of the office of the president may die#but the office never dies.

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! corporation consists of a body of persons who collectively form one# but who have a separate

eistence distinct from that of the corporation itself. The corporation has therefore# a legal

personality of its own distinct from that of its members. The individual members have rights andliabilities of their own apart from those of the corporation. The corporate body is different in that

it has perpetual succession# it never dies and has a common seal by which to authenticate its acts#

it can sue and be sued and own and transfer property in its name. nli"e human beings# acorporation can only act through its agents. The members may change but the corporate body

does not. There are three essential re0uirements for the eistence of a corporation i.e. there must

be a group or a body of human beings associated for certain purposes# there must be organsthrough which the body or the group acts and a will is also attributed to the corporation by legal

fiction. There are two classes of corporation namely' (

a. ! corporation sole and5

b. ! corporation aggregate.

Corporation Sole

! corporation sole consists of a legally established office distinct from the holder. It consists of

an incorporated series of successive persons having perpetual succession. It can be held by onlyone person at any time# after which he is succeeded by another person who will henceforth

occupy the office and discharge the duties# and eercise the powers of the office e.g. $ffice ofthe President# Public trustee# 6ishop etc. They have powers and obligations conferred upon them

by statute# but these are distinct from the person who occupies the office. +ven though a

corporation sole is perpetual# there may be periods in which there may be no one in eistence inwhom the corporation resides and is visibly represented. ! corporation sole does not re0uire a

seal but a corporation aggregate can act or epress its will only by a deed under a common seal.

Corporation aggregate

3orporations aggregate consist of a group of persons such as a limited company or statutory

corporation# or co(operatives registered under their respective !cts of Parliament. The statute

creating the state corporation would give it a name# stipulate its composition# prescribe itspowers and duties etc. ! corporation aggregate is an incorporated group or body of persons

united for the purpose of advancing certain ends or interests. $nce a corporation has been

registered it confers on the corporation legal rights# duties# and obligations /i.e. it ac0uires legalpersonality) and so it can sue and also be sued. This will then be regardless of whether it is a

state corporation# public or private company# or a co(operative society. ! good eample is often

by reference to the celebrated case of5

Salomon Vs Salomon Co. Ltd. 1897

,alomon was a sole proprietor operating a leather merchants business. ,alomon sold his

business for 78#888 Pounds to a company where he and si of his family members wereshareholders. ,alomon was the ma%ority shareholder holding 98#888 Pound of fully paid up

shares worth : Pound each wherein his wife and ; of his sons held : share each. ,alomon also

too" debentures of :8#888 Pounds charged on the company.s assets. The company later becameinsolvent and its assets were not enough to pay in full either the debenture holder or creditors. !s

a result ,alomon paid himself :8#888 Pounds on the debentures he held and nothing remained for

the unsecured creditors. The creditors claimed that they were entitled to be paid first before

,alomon paid himself the debentures on the ground that ,alomon and company were one and the


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same thing as he practically owned and managed the company single handedly. The court held

that accompany once formed becomes a legal entity of its own and as a secured creditor ,alomon

had a preferential right to be paid first.

3orporations may sue and be sued in their own names for tort. They are liable for torts

committed by their servants or agents. This is because corporate bodies have legal and separatepersonality of their own which is distinct from that of the individual members constituting them.

owever# if a servant of a corporation commits a tort# which is Ultra Vires/beyond powers) the

corporation# then the corporation is not liable. ? laws of &enya. Persons who wish to form limited companies have to

register the company with the registrar of companies. 3ertain documents must be delivered to theregistrar of companies during registration'(

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crash while wor"ing for the company. The 0uestion was whether he was a wor"er. It was held

that since he and the company were distinct legal persons# they were capable of establishing a

contractual relationship# hence he was a wor"er. 6esides# the 3ompany.s eistence could not beterminated by the death of Lee.

9. Limited Liability' ! member can.t be sued or made liable for the debts of a limited liability

company ecept the unpaid amount that remains unpaid on the shares held. If it is limited byguarantee# then a member can only be called to contribute to the assets of the company the

amount he had underta"en to contribute if the company is to be wound up during his

membership.7. ,ue and be sued' ! company can sue and be sued in its name. Therefore a wrong to Aby a

company is a wrong toAby its members. In 2oss Ds. arbattle# two members of a company filed

proceedings against the directors and others claiming that the company.s property had been

misused by them. The court dismissed the case holding that the proper person to sue is thecompany.

=. ,eparate Legal +ntity' pon incorporation# a company becomes distinct from the members

who compose it. This is advantageous for the corporation as it remains free from the ha1ards of

all personal misfortunes of the members. This is "nown as the rule in ,alomon Ds. ,alomon F3o. Ltd. /:>EG)# where Lord


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provisions of the law relating to adoption of a child and also guardianship as contained in the

!doptions !ct and the Cuardianship of Infants !ct respectively.

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Kenya - Law of Persons