One can claim dues or compensation from a verbal agreement in Kenya, as long as the agreement is proven and the terms are enforceable. Verbal contracts, also known as oral contracts, are legally binding in Kenya.
Proving 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.
To prove a verbal agreement, one can use evidence like witness testimonies, conduct of the parties, and other relevant documents.
Key points to note for Verbal contracts:
Legally Binding: Verbal agreements are legally enforceable in Kenya.
Proof is Crucial: Establishing the existence and terms of the verbal agreement is essential.
Evidence Matters: You can use various forms of evidence to prove the agreement, such as witness testimonies, conduct of the parties, and relevant documentation.
Enforcement: If a party breaches a verbal agreement, the other party can seek legal remedies, including compensation or specific performance.
Specific Performance: In certain cases, the court may order the breaching party to fulfill the terms of the agreement (specific performance) instead of awarding damages.
Consideration: For a contract to be valid, there must be consideration, which is something of value exchanged between the parties.
How to prosecute/claim:
1. Gather Evidence:
Collect any evidence that supports the existence and terms of the verbal agreement.
2. Consult a Lawyer:
Seek legal advice from a qualified advocate to understand your rights and options.
3. File a Claim:
If you believe there has been a breach, you can file a claim in court, seeking appropriate relief.
4. Present Your Case:
Court process:
In court, you will need to present evidence to prove your claim and the breach of the verbal agreement.
Examples of Evidence:
Witness testimonies from people who were present when the agreement was made.
Conduct of the parties, such as actions that show they understood and intended to be bound by the agreement.
Correspondence, such as emails, texts, or WhatsApp messages that refer to the agreement.
Bank transfers or invoices that relate to the agreement.
Any other relevant documents or records.
Remedies for breach of contracts:
Include: Damages, Rescission, Specific Performance, Restitution.
'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?
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 example of case laws:
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?
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.
Are illegal contracts enforceable?
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.
Important Note:
While verbal agreements are legally binding,
they can be more difficult to prove than written contracts. It's always
advisable to document your agreements in writing whenever possible.
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