There are two key types of goods under Kenya law
1. Specific
2. Unascertained goods.
The crux of Sale of Goods Contract is the passing of the property in the goods from seller to buyer. This can only happen where the goods are unascertained, property cannot pass.
18. Where
there is a contract for the sale of unascertained goods, no property in
the goods is transferred to the buyer unless and until the goods are
ascertained.”
Specific
goods under Kenya law are goods which have been identified, agreed upon and set aside
by the parties for the contract and the goods can be specific either at
the time the contract is entered into or they can be made specific in
the course of dealing. For instance when talking of a
motor vehicle, you will be talking about the engine number and the
chassis number being what you specified so only that vehicle is the
specific goods subject of the contract. Only the property in specific
goods will pass. No other goods will do.
19. (1)
Where there is a contract for the sale of specific or ascertained
goods, the property in them is transferred to the buyer at such time as
the parties to the contract intend it to be transferred.
(2) For
the purpose of ascertaining the intention of the parties, regard shall
be had to the terms of the contract, the conduct of the parties and the
circumstances of the case.
An identified part of a specific whole.
Kursell V. Timber Operators & Contractors Ltd.
The
Plaintiff sold to the defendant all the trees in a Latvian forest which
conformed to certain measurements namely 15 meters on the date of the
contract. The Buyer would have 15 years on which to cut and remove the timber. Almost immediately afterwards, the Latvian Parliament passed a law confiscating the forest. The matter went to court and went to the House of Lords primarily on one issue. Had
the property in the trees passed from the Seller to the Buyer or as one
of the Judges did “whose forest and therefore the trees was confiscated
by Parliament? Remember he who has the property bears the risk. The court held as follows
“the
property in the goods had not passed to the defendant the buyer as the
goods were not sufficiently identified since not all the trees were to
pass to the buyer but only those conforming to the stipulated
measurements namely 15 metres.”