 All rights and obligations are based on legal rules

and principles and doctrines

 The application of these rules and principles

depend on the legal status and recognition of the

individual or entity seeking to enforce those rights
and principles
 The capacity to act or engage in any legal process

depends on whether one is recognised as a legal

person by the law.
 This is known as LEGAL CAPACITY
 Lack of legal capacity invalidates the
relationship that has been entered into. The
relationship cannot be recognised by law

 A person in law is defined as “an entity or

being which is recognised by law as having
certain defined rights and obligations which
can be enforced by the law.” This entity is
thus said to have LEGAL PERSONALITY (It is a
legal person)
 There are two types of legal persons: NATURAL
persons and ARTIFICIAL or JURISTIC persons.
 Natural persons – human beings
 Artificial persons – corporations
 The legal personality of a legal person is

determined by the law of that land. Legal

personality is granted by the State.
 Examples: slaves were considered “non persons”;

unborn children in some jurisdictions are not

considered as persons.
 These are human beings
 They are subject to the rules of law

depending on their legal standing before

the law
 Example: when a man and a woman enter

into a voluntary union to the exclusion of

all others, this kind of arrangement
changes their legal status.
 The man becomes a HUSBAND and the
woman becomes a WIFE.
 They become subject to rules that regulate its

formation and its dissolution (its start and

end)
 Any non – compliance with these rules

invalidates that marriage

 Another example: the legal status of a man who
has fathered a child is granted by the law.
 the legal status of an infant or a minor is also

granted by the law

 a minor is any person under the age of 18 years
 Examples of legal status and hence legal

capacities: a minor cannot enter into an

enforceable contract unless for necessaries; nor
right to vote; criminal liability – 8 years;
marriage – 16 years
 For a mentally disordered person
– lack capacity to do certain
things
 Example: Bankrupt persons –

they lack the capacity to go

certain things due to their legal
status
 This is an artificial person created by the law
 It is a group of persons who have come together

unified by a particular objective but with a

personality distinct from its members
 Characteristics of a corporation

1. It has a legal personality of its own separate

from its members
2. The individual members have rights and duties
of their own separate from the corporation
3. The corporation has perpetual succession
4. It has a common seal by which it authenticates
its actions
5. It can own both moveable and immoveable
property
6. It can enter into contracts
7. It can sue and be sued in its own right and name
See the case of Salomon v Salomon & Co Ltd (1897)
 Examples of corporations:

1. Companies registered under the Companies Act

(Cap 486, Laws of Kenya)
2. Cooperative societies – registered under the
Cooperative Societies Act No 12 of 1997
3. Public corporations also known as statutory or
chartered corporations – created by specific Acts
of Parliament -
 This refers to an association of natural persons
other than a partnership, which has not been
incorporated.
 The distinction between an unincorporated
association and a partnership is that the former
is formed to carry out a social purpose and not
a commercial or business venture.
 A partnership is an unincorporated body that
has the main objective of carrying on business
to make a profit
 Unincorporated persons are not considered legal
persons (although trade unions have a quasi – legal
personality because they can sue and be sued)

 A non – existent person cannot be granted rights and

responsibilities by law

 Since these associations lack legal capacity they cannot

be held liable in law for wrongs done
 Liability will then rest on their officers, or on the
members themselves or on their boards of trustees
 Examples of unincorporated
associations:
1. Societies – registered under the
Societies Act (Cap 108, Laws of Kenya)
2. Trade Unions
3. Non – governmental organizations, etc
 The law of persons also must take into
account the issue of nationality and
citizenship
 It must also consider domicile and place

of residence of a person
 Nationality and citizenship enable a

person to enjoy certain rights and be

subject to certain responsibilities
 Nationality or citizenship – this is a person’s
political allegiance to some state in return for the
protection by that State and also for being
granted certain rights and being subjected to
certain obligations in that State

 Acquisition of citizenship can be in two different

ways: by birth and by registration. Article 13(1)
of the Constitution
a) Citizenship by birth – Article 14 of the
Constitution
 If on the day of a person’s birth, whether
they are in Kenya or not, the mother or
father is a citizen
 Children who is less than 8 years of age
and whose nationality or parents are not
known is presumed to be a citizen by birth
b) Citizenship by registration – Article 15 of
the Constitution
 Applies to a person who has been married

to a citizen for a period of at least 7 years is

entitled on registration to be registered as a
citizen
 Applies to a person who has been lawfully

residing in Kenya for continuous period of

at least 7 years
A child who is not a citizen but is
adopted by a citizen
 Parliament can enact legislation

setting out the conditions under

which citizenship can be granted
 DUAL CITIZENSHIP – Article 16 of

the Constitution
 Revocation of citizenship – Article 17 of the
Constitution
 For citizenship by registration:
 If acquired by fraud, false representation, or

concealment of any material facts

 During any war has dealt with the enemy
 Has within five years after registration been

convicted of an offence and sentenced to

imprisonment for a term of three years or longer
 Treason
 Or has been convicted of an offence for which

the penalty is imprisonment of a period of at

least 7 years or longer or a more severe
punishment may be imposed (e.g. life
imprisonment; death by hanging)
 Domicile – this is the country that a person
treats as his permanent home; the place to
which he has the closest legal attachment
 In principle, one should not have more

than one place of domicile at a given time

 No person can be without domicile
 Domicile can be of origin (the domicile of

his parents) or domicile of choice

 Can also be domicile of dependence – in the
case of a minor – changes with the domicile
of the parents.
 An illegitimate child – takes the domicile of

his mother
 Legitimized child – takes the domicile of his

father at the time of legitimation

 The law of domicile is governed by Law of

Domicile Act (Cap 37, Laws of Kenya)

 Difference between Domicile and Nationality
 Nationality has to do with political allegiance to

a State; domicile has to do with the legal system

to which this person is subject at any given time.
A person’s family relations in matters like
marriage or divorce; his moveable property are
governed by his place of domicile
 Another distinction: one can lose one’s

nationality but one cannot be without a place of

domicile
 It is possible for a person to have
dual citizenship but one cannot
have dual domicile
 It is possible for a person to be a

national of one state but be

domiciled in another
 Residence – this is the place where a person has
his home whether it is permanent or temporary
 One may be a resident of more than one

country
 For companies, the domicile and place of

residence is important for an individual and for

a company, the registered office and principal
place of business – for purposes of knowing
whether a civil suit can be instituted against
them
 THE END

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