Contract and The Law of Obligation under Kenya Contract Law

The law of contract forms part of the law of obligations, an obligation is a legalbond between two or more personsor parties, obliging the one party (the debtor) to give, do or refrain from doing something to or for the other party (the creditor). The right created byan obligation is personal, aius in personam, as opposed to a real right. If an obligation is enforceable by action in a court of law, it is a civil obligation, rather than the less common and unenforceable nautral obligation.

Contract and delict
The primary sources of obligations under the Kenya law of contract are contract and delict,the latter being wrongful and blameworthy conduct which causes harm to a person. There is a very close similarity between a breach of contract and a delict, in that both are civil wrongs and may give rise to a duty to pay damages as compensation. It is unsurprising, then, that certain conduct may constitute both a breach of contract and a delict (as when, inVan Wyk v Lewis, a surgeon negligently left a cotton swab inside a patient's body), in which case there will be concurrent liability, permitting the plaintiff to sue on either basis.

Contract and enrichment
Another source of obligations is unjustified enrichment, which occurs when there is a shift of wealth from one person's estate to another without good legal grounds or cause. Where a party transfers an asset to another in performance of a contract that is for some reason invalid, the shift of wealth is without good cause (orsine causa), and an enrichment action for the restitution of the asset will lie.