1. Is force majeure a recognised concept and how is it defined?
Yes it is. The Kenyan law under the Law of Contract Act adopts the common law of England relating to Contracts as modified by the doctrines of equity. There is no statutory definition of force majeure. Typically, however, force majeure would be defined as acts, events or circumstances beyond the reasonable control of the party concerned which have the effect of preventing a party from fulfilling its obligations under a contract.
2. Is it only available if it is specified in a contract?
Yes. It must be provided for in the contract. In addition, the contract will also specify the remedy(ies) available on the occurrence of a force majeure event.
3. What are the key requirements, such as notification, to claim force majeure?
These would differ from contract to contract. The contract would specify in detail what the specific requirements are for a party to successfully rely on and benefit from a force majeure event.
4. What is the effect of a force majeure certificate issued by a government body?
No such certificate is issued in Kenya either by the Government or any Government body.
5. What remedies are available if a party is able to rely upon force majeure?
This would depend on specific contractual provisions. Examples of remedies include:
- Termination and/or repudiation of the contract;
- Suspension of contractual obligations for the duration of the force majeure event.
- Extension of time to perform contractual obligations.
6. What are the risks of claiming force majeure incorrectly?
The claimant will expose itself to a claim of breach of contract or repudiation of contract by the other party which could lead to an award of damages, and order for specific performance and termination of contract.
Alternatives
7. Are there alternatives to force majeure such as frustration of contract or “change in circumstances”?
Yes. There is an alternative claim for ‘frustration of contract’, a common law principle. Whether this principle can successfully be relied on must be determined on a case by case basis.
Access to Justice
8. How can you find out if courts or other types of tribunals have been closed or suspended?
The Judiciary, through the National Council on the Administration of Justice, has been issuing routine press statements as to access to courts. Additional information can be obtained from the website of the Kenyan Judiciary (www.judiciary.go.ke) and twitter handle (@KenyaJudiciary). The National Council for Law Reporting website (www.kenyalaw.org), which would ordinarily contain cause lists for the various courts within the Kenyan Judicial structure, is regularly updated and notices regarding access to the various courts and tribunals are uploaded.
9. Are you aware of arbitration proceedings held in your jurisdiction being suspended?
Arbitrations are considered separate processes from the ordinary courts and therefore, whether or not to suspend arbitrations depends on parties participating in the arbitrations and the arbitrator. It is likely however that recent government directives on working from home and keeping social distance have affected arbitrations. I am involved in one arbitration where I sit as an arbitrator. The scheduled hearing last week was deferred to July 2020 on the request of parties and their counsel.
FAQs researched and answered by Jomo Nyaribo.
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