Cap 31 Laws of Kenya essential. Sale of goods is a specialised branch of the law of contract.

Only after there is a valid contract can one approach the sale of goods.  Unless there is a valid contract there can be no sale of goods contract.  The rules of the Sale of Goods Act Cap 31 must apply.  The provisions of The Sale of Goods Act must be seen to apply to be able to decide if there was a sale of goods contract.

There are many contracts that look like sale of goods contract that need to be distinguished from a sale of goods contract.  The distinction is crucial to be able to apply the sale of goods act provisions.

What are the sources of Sale of Goods Law in Kenya?

There are 3 sources of Law in the Sale of Goods

1.            Sale of Goods Act Cap 31 Laws of Kenya – it is fashioned after the English Sale of Goods statute of 1893.  It is basically a carbon copy of the English Statutes and therefore it is the Bible for our law.
2.            Case Law – Law, which has grown arising from court decisions.   Case Law is massive.  To understand case law as a source of law, one needs to understand the legal methods.  A decision in any given case depends on the hierarchy of decisions.
 Relevant case law that predates 1893 English Act on Sale of Goods.  Its importance is that on points that are not specifically covered by provisions of The Sale of Goods Act Cap 31 then the provisions made prior to 1893 are valid and can be relied on.

Bank of England V. Vagliano Bros 1891 A.C.  105 Page 144 through 145.  this case deals with principles of statutory interpretation.
This was laid down by Lord Herschell who observed that “I think the proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of the law, and not to start with inquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to  see if the words of the enactment will bear an interpretation in conformity with this view.  If a statute, intended to embody in a code a particular branch of the law, is to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed, and the very object with which it was enacted will be frustrated.  The purpose of such a statute surely was that on any point specifically dealt with by it, the law should be ascertained by interpreting the language used instead of, as before, by roaming over a vast number of authorities in order to discover what the law was, extracting it by a minute critical examination of the prior decisions.”  Therefore

1.            A judge examines the language of the statutes in its natural meaning uninfluenced by considerations from the previous state of the law before the legislation was enacted.  The purpose of legislation is to come up with a new concept of a particular area.  If legislation was to reinstate what existed, then why have it?

2.            Even where there are ambiguities in the statutes, you need to apply the same kind of principle to understand what it is that a particular word or words was supposed to convey.

3.            You try to look at the mischief that that particular law was meant to avoid.  The meaning of the words as stated in the statutes.  Where there is ambiguity, it is the duty of the courts to try and get the meaning of that ambiguity.  You must however not create your own ambiguity and then try to interpret it.  The ambiguity must have been there originally in the statutes.

In interpretation the idea is to find out the meaning of the language but not the meaning of the meaning.


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