MBA Theses and Dissertations (2024)

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Browsing MBA Theses and Dissertations (2024) by Author "Mmbogori, A. G."

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    Analysing the forms of contract and the role that written and unwritten contracts play in the resolution of commercial disputes in Kenya
    (Strathmore University, 2024) Mmbogori, A. G.
    As the world develops, so do business dealings and interactions. These interactions can give rise to disputes, and the resolution of these commercial disputes is becoming more important to many businesses. In essence, a commercial dispute can be viewed as a dispute between two or more business people or entities. Commercial disputes generally arise when a term to a contractual undertaking is breached or there is a disagreement between parties regarding how contractual terms are interpreted. Once a commercial dispute emerges, parties can use a number of ways to resolve such disputes including negotiation, mediation, arbitration, or Court-based litigation. Regardless of the dispute resolution method chosen, contractual claims are easier to enforce when a written contract exists, yet, many businesses enter into contracts by word of mouth. This study aimed to analyse the legal contractual environment of conducting business in Kenya and determine the role of both written and unwritten or oral contracts in commercial dispute resolution. The study adopted a descriptive research design which targeted individuals and entities involved in commercial litigations for dispute resolution. Ten litigations were selected and analysed using the doctrinal legal research method. This study found that parties who conducted commercial transactions on the basis of oral or unwritten contracts had great difficulty in proving the terms of their agreement or even proving that a contract between them and their counterpart existed in the first place. In contrast, the study found that where a written agreement was provided, the Court tended to stick to the express terms of the agreement and did not allow parties to vary the agreed terms, even when one party argued that the terms of the agreement had been orally renegotiated. The particulars of the manner in which Courts look at contracts in Kenya have been explored throughout this study. Based on the findings, this research recommends observing the requirements of a valid contract and making sure the terms of the agreement are written and related records preserved including communication between parties being documented in writing.