By Wachira Muthee and Sharon Chebet (African Times Guest Writers)
In the wake of the year 2020, a pandemic struck
the world, including Kenya. The World Health
Organization (WHO) labeled it Corona Virus 2
(COVID-19). The pandemic saw the country and
the world, in general, impose hard regulations to
curb the fast-spreading respiratory illness.
These included among others; travel, import,
export, and travel restrictions.
As such, it is imperative that commercial
contracts would be rendered impossible to
perform either permanently or temporarily.
Ordinarily, failure to perform one’s end of the
bargain in a contract amounts to a breach of
contractual terms or warranties. This may
either lead to the defaulting party being ordered
to remedy the situation if the breach is seen to
be of a warranty or termination of the contract
as a whole and payment of damages where the
breach is of a condition. As such, the remedies
under the contractual agreement and the Law
of Contract Act (Chapter 23) Laws of Kenya
begin to accrue against the party in default.
A greater force “Force Majeure” clause in such
contracts that operates under the Common Law
Doctrine of “Frustration” may offer relief to
contractual parties subject to various
conditions. “Force Majeure” is a French term
that means ‘greater force’. It is highly linked to
the concept of “Act of God”, an event for which
no party can be held accountable. Therefore, it
is imperative that a Force Majeure clause may
offer relief to contractual parties subject to
various conditions. Force Majeure is basically a
clause which states that one or both parties will
not be liable for any delay in performance or for
non-performance of its obligations upon the
occurrence of certain events. The clause acts
as a shield for its parties that are unable to
perform their obligations.
The Burden of proof “Onus Oparandi” lies on
the person alleging that the non-performance or
the delay in performance is due to Force
Majeure. In the particular case of COVID-19,
where three conditions must be met:
Impossibility of performance- it must be clear
that from the complications and laws imposed
by the Coronavirus pandemic, it is no longer
possible to perform the contract.
The impossibility is linked to COVID-19- it must
be proved that the impossibility is not just as a
result of other inconveniences and not as a
result of the unforeseeable circumstances of
COVID-19. e.g. when you are unable to transport
goods from Nakuru to Kisumu, its difficult to
claim that its as a result of COVID-19 because
there are no travel restrictions between the two
towns as a result of the pandemic. The close
link between your inability to perform and
Corona Virus is key.
The occurrence could not reasonably be
foreseen- this is mostly governed by the time of
the contract. For example, a contract entered
into in 2019 can have the corona virus as an
unforeseeable occurrence. However, when
parties entered into the contract in March of
2020, it would be unreasonable to claim that
the occurrences of COVID-19 were
Reliance on a greater force “Force Majeure”
clause does not necessarily mean that the
contract stands terminated but rather that the
performance could be suspended for a certain
prescribed duration of time, what is exactly
happening within the corridors of Justice in
Kenya, with more hearing cases being
suspended until further notice due to the deadly
Cororavirus pandemic .
In most cases, greater force “Force Majeure”
clause will be interpreted in the interpretation
clause of the Agreement to contract. In most
cases it will be construed narrowly within the
meaning of how it was interpreted in that
particular clause. COVID-19 will therefore
qualify as Force Majeure if the contract defines
it to include things such as ‘pandemics’,
‘epidemics’ or ‘state of emergency’.
It is therefore very important to ensure that
when drafting commercial contractual
agreements, the definition clause is drafted in
such a way to include as many possible
occurrences as possible.
Foreseeability: Force Majeure and generally the
doctrine of Frustration requires that at the time
of the contract, the events leading to its
invocation be unforeseeable. It is inherent that
no party should use it ultimately
or its own unfair advantage.
Impossibility and Impracticability
Performance will only be excused due to greater
forces “Force Majeure” if performance of the
same is impossible or impracticable.
Impossibility means that performance cannot
physically occur, for example, a contract to
install air conditioners in a house would be
excused if the house is destroyed by a fire.
Impracticability on the other hand means that
performance can only occur at an excessive
and unreasonable cost that was not bargained
Impossibility may occur where government
orders make it illegal to perform under the
contract. For example, in Kenya, a contract that
requires cross-border travel may be excused
following the COVID-19 government orders and
interventions which make it illegal and
ultimately impossible to travel across most
It is important to carefully review contract to
see what kind of notice or warning to provide to
other parties involved in the contract before
considering the invocation of a greater force
Most contracts will have in them a defined
notice period and requirement. It is vital that it
be observed while invoking the clause of
greater force .
Kabathi & Co. Advocates offers competent legal
advice and legal services which will enable
clients to make informed decisions in every
contractual relationship. Further, the firm make
well-sealed agreements that protect clients
best interest in every contract. They are also
involved in Alternative Dispute Resolution for
out of court settlements where need arises,
firm well-founded on Court based litigation to
ultimately seek justice in Courts of Law.
Kabathi & Co. Advocates. The Firm has
established a comprehensive network of
carefully selected correspondent law firms. And
has 13 branches spread within the Country
from Murang’a, Embu, Meru, Kerugoya,
Nyahururu, Mwea, Gikomba, Kangari, Nanyuki,
Nyeri, Chuka, Juja to Kangema.
HEAD OFFICE – NAIROBI
Muringa Court, House No. B12 –
Kirichwa Road, Hurlingham.
P.O Box 21413-00100, Nairobi.
Office Tel: +254 722 556 028.
Office Mobile: 0725 900 166.