A Proposal to De-colonise Sale of Goods Law in Kenya: Why the Kenyan Sale of Goods Act is a Hopeless Legislation
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Date
2023
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Publisher
Mount Kenya University Law Journal
Abstract
When members of the Legislative Council of the Kenya Colony met in July 1930 to pass the Sale of Goods Ordinance, the Kenyan Colony was not represented by any African. White missionaries were the African representatives because it was felt that they knew a lot about Africans that they would best protect African interests in the Act. The Sale of Goods Act, Chapter 31 Laws of Kenya (The Act) was adopted from the English Sale of Goods Act, 1893. There are good reasons to believe that the Act was passed to protect colonial interests in sale of goods Law in the country. This Act has substantively remained unamended since 1893. With the dynamic nature of the commercial environment, it is expected that the Law governing such an environment also keeps the momentum. This has not been the case in Kenya. The current study seeks to critically examine the extent to which the doctrine of freedom of contract is entrenched in the Act. The study examines the topic under four themes: elements of the doctrine of freedom of contract in the Act, formation of the contract of sale of goods, implied conditions and warranties, and exclusion clauses. The study then makes recommendations on how these provisions should be amended or repealed to reflect the modern commercial environment in Kenya.
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Keywords
Law Merchant, Codification, Sale of Goods, Freedom of Contract, Implied Terms, Exclusion Clauses
Citation
Mbila. M.A. (2024). A Proposal to De-colonise Sale of Goods Law in Kenya: Why the Kenyan Sale of Goods Act is a Hopeless Legislation. Mount Kenya University Law Journal. 3(1).