Tuesday, March 18, 2025

COSTING AND BUDGETING (NOTES)

 

 

What is cost?

Cost is the amount of expenditure incurred on or attributable to a specified activity. Costs are usually ascertained in respect of cost units or cost objectives

 

Cost unit

A cost unit is a quantitative unit of a product or service in relation to which costs are ascertained e.g. kilowatt hours.

 

Cost object

A cost object is any activity for which a separate measurement of cost is desired. A cost unit is a cost objective. However, there are some cost objects which are not cost units. Examples of cost objects include a product, a service, a department or segment of the business, a function, a process or activity or indeed anything for which one wants to measure the cost of resources used. Sometimes it is impossible to trace some costs direct to cost units. Under such situations costs are first traced to cost centers for further spreading unto cost units.

 

Cost center

A cost center is a location, a person, an item of equipment (or a group of these in relation to which cost are ascertained and further related to cost units e.g. maintenance section, managing director and the plant. Cost centers are broadly classified into:

 

1. Production cost centers

2. Service cost centers

Cost can be classified variously for different objectives.

 

COST CLASSIFICATION

 

I. Classification According To Element of Cost

Costs can be classified by element. There are three basic elements of cost. These are materials, labor and other facilities or resources other than materials and labor. Thus when classified according to elements, there are the following classes of cost:

 

Materials cost: These are the costs of materials or commodity other than fixed assets, introduced into product or consumed in the operations of an organization. In other words, they are the cost of materials input into the production of goods and services. For example, the cost of: Raw materials, Component parts, Work in progress, Primary] packing materials and Stationary

 

Labor Cost: These are the cost of employee remuneration i.e. payments made to and on behalf of employees for offering labor services in the production function.

 

Expenses These are all other costs other than material cost and labor costs. For example

the cost of: hiring special equipment and maintaining such equipment, royalty payments, copyrights and patent payments, utilities such as electricity and water, rent etc.

 

II. Classification As Direct Or Indirect

Cost can also be classified either as direct cost or as indirect costs.

Direct Cost: These are cost that can be directly identified and charged to a cost unit without apportioning. Direct costs comprises of:

 

Direct material cost: These are the costs of material that can be physically identified with a specific cost unit. They are the cost of materials entering into and becoming constituent elements of a product or saleable service. Direct materials costs are allocated to cost units. Note Some materials which could qualify as direct materials may be treated as indirect materials for purposes of materiality and convenience. Examples: Materials specifically purchased for a particular job order or process, Materials requisitioned from from store for a particular production order, Work in progress and component parts and Primary packing materials.

 

Direct labour or wages cost: These are the cost of remuneration for employeesefforts and skill applied directly to a product or saleable service. Such wages are allocated directly to cost units. Examples of direct labour cost are: Wages of production operatives who are involved in transforming the raw materials into finished goods, Wages of waiters who serve meals at a hotel and Wages of sales assistants involved in selling goods in a retailing shop.

 

Direct Expenses: These are costs other than material cost, labour cost which can be identified with and charged or allocated to a cost unit. In other wards they are costs other than material cost and labour cost which are incurred for a specific product or saleable service. Examples of direct expenses are: the cost of hiring a special equipment for a particular production order, the maintenance cost of special equipment’s hired for particular production orders, royalty payments and traveling expenses

 

Indirect Cost

All costs that cannot be identified with and allocated to a cost unit but that has to be apportioned to a number of cost centres and further absorbed by cost units are described as indirect cost. Another term for all indirect costs is overhead costs. Indirect costs comprise of:

Indirect Material Cost: These are the cost of material items that cannot be identified with any one product because they are used for the benefit of all products rather than for any one specific product. In other words, these are materials cost which cannot be allocated to cost units but are apportioned and absorbed by cost units. For example; The cost of materials required for operating and maintaining plant & equipment such as , cost of stationary and cost of cleaning materials

Indirect labour cost: These are wages of employees who do not work on the product itself but who assist in the manufacturing process. Such costs cannot be allocated to cost units; rather they are apportioned to cost centres and further related to cost units through absorption. For example: salaries of factory supervisors, wages of the stores dept employees’

 

Indirect Expenses These are expenses incurred in general and not for the production of a specific cost unit. For example” Selling and distribution expenses, advertising, sales promotion and administrative expenses

COST CARD

Direct material cost                         xx

Direct labour cost                            xx

Direct Expenses                             xx

Prime cost                                    xxx

Indirect material cost                    xx

Indirect labour cost                       xx

Indirect expenses xx

Overhead cost                             xxx

Total cost                                     xxx

 

III. Classification According To Function

All the indirect costs, that is, overhead cost, can also be classified according to function. Thus, overhead can be classified as:

Production Overheads: These are the indirect cost of manufacturing a cost unit. It comprises of indirect materials consumed in the factory, indirect factory wages and other indirect expenses incurred in connection with production.

Selling Overheads: These are marketing costs incurred in securing orders, e.g. sales promotion cost.

Marketing Overheads: These are the costs incurred in publicizing and presenting to customers the products of the undertaking in suitably attractive forms at acceptable prices together with the cost of all relevant research work, the securing of orders and delivery of the goods to customers. It also includes the costs of after sales services or processes. Thus, marketing costs comprise of: selling costs, distribution costs and other connected costs.

Distribution Overheads: These are the costs incurred in making the finished goods ready for dispatch and the delivery of the product to customers, e.g. cost of carriage outwards. e. Administrative Overheads: These are the costs of formulating policy, directing and controlling operations not related directly to production, selling, distribution or research and development. Research and Development Overheads: These are the costs of seeking new ideas, materials, methods of production and improved products and the development and design of such ideas so that they can be applied to formal production.

 

Cost Card

Direct material cost                             xxx

Direct labour cost                                xxx

Direct expenses                                   xxx

Prime cost                                          xxx

Indirect production material cost       xxx

Indirect production labour cost          xxx

Indirect production expenses             xxx

Production overheads                        xxx

Production cost                               xxx

Selling overheads                             xxx

Distribution overheads                     xxx

Administrative overheads                xxx

Total cost xxx

Profit margin                                  xxx

Selling price                                  xxx

 

IV. Classification According To Behavior

Costs may be classified according to the way the cost behaves in relation to activity level. In this regard, cost may be classified as:

Fixed Cost These are costs that do not vary with changes in activity levels. They usually change with the passage of time. For example, rent and rates, the managing director’s salary etc

Variable Cost These are costs which vary in direct proportion with changes in activity levels. For example, the cost of raw materials, direct wages and direct expenses such as royalties.

Semi-fixed\semi-variable or mixed cost: These are costs which contain fixed and variable elements. That is, for a given range of activity level. The cost may remain constant and beyond the relevant ranges, costs may then vary in direct proportion with changes in activity level. For example, the cost of utilities such as electricity, water and telephone.

Stepped fixed cost: These are costs which are fixed for a given range of activity level but which change discretely for ranges of activity levels beyond the given ranges.

 

V. Classification as Product Costs or Period Costs

Product Costs These are the costs that are identified with goods produced or purchased for resale. These usually are the production or manufacturing costs. They are the costs used for the valuation of stocks and work in progress. Examples of product costs are: cost of raw materials, production wages and production overheads such as electricity, depreciation of plant, rent of factory premises etc. Product costs can be analyzed as expired costs or unexpired costs.

 

Period Costs These are the costs incurred and charged against profit for a period, and not included in cost for stock valuation purposes. These usually are non-manufacturing costs. Examples are selling and distribution overheads and administrative overheads. Period costs are charged in full to the profit and loss account for the period. They are not included for stock valuation purposes.

 

Relevant Costs/Revenue These are those future costs and revenues that can be altered by a given decision. Examples: Future costs Opportunity costs Avoidable costs Incremental costs etc.

Irrelevant Costs/Revenues These are those costs/revenues that will not be affected by a given decision. Irrespective of what decision is taken, the cost will not alter. Examples Past costs Sunk costs Unavoidable costs

 

VII. Other Classifications of Cost

Avoidable Costs These are costs that may be saved by the adoption of a given alternative option.

Non-Avoidable Costs These are costs that cannot be saved or eliminated by the adoption of a given alternative line of action.

Normal Costs These are costs planned for and expected at given levels of activity under specified conditions. For example, normal scrap and loss of materials cost of expected idle time etc.

Abnormal Costs These are costs not planned for and therefore not expected to be incurred at a given level of activity under conditions in which that level of activity is normally achieved, e.g. cost of excessive scrap and abnormal idle time pay etc.

Sunk Costs These are the costs of resources already acquired. They are costs created by decisions made in the past and cannot be altered by decisions to be made in the future.

For example the written down value of plant previously acquired.

Opportunity Costs These are the values of benefits forgone or sacrificed in favour of alternative courses of action.

Incremental Costs/Revenue They are the additional costs or revenues that arise from the production or sale of a group of additional units. These are sometimes termed differential costs.

Marginal Costs/Revenues These are the additional cost or revenue that arises from the production of one additional unit of output or service.

Future cost these are costs estimated and are reasonably expected to be incurred in the future.

Replacement Costs These are the estimated costs at which an identical item can be acquired or produced.

Conversion costs these are the cost of transforming raw materials into finished goods or the cost of converting raw materials from one stage of production cycle to the next. It is total cost of production less cost of bought in materials.

Policy Costs These are costs additional to normal requirement incurred in accordance with the policy of an undertaking. They are also termed discretional costs.

Development Costs These are costs of research into improving the production of goods and services.

Value Added This is the increase in market value of a product as a result of changing the form, location etc, of that product. It is the total market value of the product less cost of bought in materials and services.

Standard Costs These are cost estimated and expected to be incurred per unit of activity under efficient production conditions.

Budgeted costs these are costs estimated and planned for a given activity level, function or segment of the organization within a specified time horizon.

Actual costs These are the cost actually incurred in the production process. Actual costs are not estimates but are historical or past costs.

 

BUDGETING

What is budget?

A budget is " A financial and/or quantitative statement, prepared and approved prior to define period of time, of the policy to be pursued during that period for the purpose of attaining a given

Objective." According to Brown and Howard of Management Accountant "a budget is a predetermined statement of managerial policy during the given period which provides a standard for comparison with the results actually achieved." achieved."

Essentials of a Budget:

(1) It is prepared for a definite future period.

(2) It is a statement prepared prior to a defined period of time.

(3) The Budget is monetary and I or quantitative statement of policy.

(4) The Budget is a predetermined statement and its purpose is to attain a given objective.

A budget, therefore, be taken as a document which is closely related to both the managerial as well as accounting functions of an organization.

Requisites for Effective Budgetary Control

The following are the requisites for effective budgetary control:

(1) Clear cut objectives and goals should be well defined.

(2) The ultimate objective of realizing maximum benefits should always be kept uppermost.

(3) There should be a budget manual which contains all details regarding plan and procedures for its execution. It should also specify the time table for budget preparation for approval, details about responsibility, cost centers etc.

(4) Budget committee should be set up for budget preparation and efficient execution of the plan.

(5) A budget should always be related to a specified time period.

(6) Support of top management is necessary in order to get the full support and co-operation of the system of budgetary control.

(7) To make budgetary control successful, there should be a proper delegation of authority and responsibility.

(8) Adequate accounting system is essential to make the budgeting successful.

(9) The employees should be properly educated about the benefits of budgeting system.

(10) The budgeting system should not cost more to operate than it is worth.

(11) Key factor or limiting factor, if any, should consider before preparation of budget.

(12) For budgetary control to be effective, proper periodic reporting system should be introduced

As budgets serve different purposes, different types of budgets have been developed. The following are the different classification of budgets developed on the basis of time, functions, and flexibility or capacity.

(A) Classification on the Basis of Time

1. Long-Term Budgets: Long-term budgets are prepared for a longer period varies between five to ten years. It is usually developed by the top level management. These budgets summaries the general plan of operations and its expected consequences. Long-Term Budgets are prepared for important activities like composition of its capital expenditure, new product development and research, long-term finance etc.

2. Short-Term Budgets: These budgets are usually prepared for a period of one year.

Sometimes they may be prepared for shorter period as for quarterly or half yearly. The scope of budgeting activity may vary considerably among different organization.

3. Current Budgets: Current budgets are prepared for the current operations of the business.

The planning period of a budget generally in months or weeks. As per ICMA London, "Current budget is a budget which is established for use over a short period of time and related to current conditions."

 

(B) Classification on the Basis of Function

1. Functional Budget: The functional budget is one which relates to any of the functions of an organization. The number of functional budgets depends upon the size and nature of business.

The following are the commonly used:

(1) Sales Budget

(2) Purchase Budget

(3) Production Budget

(4) Selling and Distribution Cost Budget

(5) Labour Cost Budget

(6) Cash Budget

Budget

(7) Capital Expenditure Budget

2. Master Budget: The Master Budget is a summary budget. This budget encompasses all the functional activities into one harmonious unit. Master Budget is the summary budget incorporating its functional budgets, which is finally approved, adopted and employed.

(C) Classification on the Basis of Capacity

1. Fixed Budget: A fixed budget is designed to remain unchanged irrespective of the level of activity actually attained.

2. Flexible Budget: A flexible budget is a budget which is designed to change in accordance with the various level of activity actually attained. The flexible budget also called as Variable

Budget or Sliding Scale Budget, takes both fixed, variable and semi fixed manufacturing costs

into account.

COST STATEMENT/SHEET

Cost statement is an analytical statement of expenses relating to production of an article which informs regarding total cost, per unit cost and quantity of production. According to Weldon,

“Cost statements are prepared for the use of management and consequently, they must include all the essential details which will assist the manager in checking the efficiency of production “Cost sheet is a cost schedule or document which provides for the assembly of the estimated detailed cost in respect of a cost centre or cost unit” When cost per unit of production is not necessary to calculate then a statement of cost is prepared to ascertain total cost and profit or loss on production otherwise prepare cost sheet.

Example

The following figures have been extracted from the records of a manufacturing company for the

year ending 31st December, 2014. You are required to prepare a statement of cost showing: (a)

Cost of raw materials consumed (b) Prime Cost (c) Factory Cost (d) Cost of production (e) Cost

of goods sold (f) Total cost of goods sold and profit on sales.

Stock of Raw Materials    (1-1-14)                                                                          3,000.00

Stock of Raw Materials  (31-12-14)                                                                        2,400.00

Purchases of Raw materials                                                                                   14,000.00

Stock of work-in-progress (1-1-14)                                                                         1,000.00

Stock of work-in-progress (31-12-14)                                                                        800.00

Carriage inward                                                                                                           500.00

Manufacturing wages                                                                                                4,000.00

Other direct expenses                                                                                                   200.00

Indirect wages                                                                                                             1,000.00

Experiment expenses                                                                                                    400.00

Wastage of materials                                                                                                     50.00

Factory overhead                                                                                                          7,000.00

Establishment on costs                                                                                                   2,000.00

Selling overhead                                                                                                          4,000.00

Distribution overhead                                                                                                1,000.00

Stock of finished goods (1-1-14)                                                                             1,200.00

Stock of finished goods (31-12-14)                                                                         3,000.00

Sales                                                                                                                        40,000.00

 

Mr sifuna had the following trial balance on 31 march 2018

                                                                                                          Drsh’000             Cr sh’000

Capital                                                                                                                          1224000

Freehold Land and Buildings                                                         900000

Freehold Machinery (cost)                                                             870000

Plant and machinery provision for depreciation                                                       420000

Loose tools at valuation 1.4.2017                                                  72000  

Salesmen motor vehicles at cost                                                    24000

Salesmen motor vehicle provision for depreciation                                                 168000

Stock :Raw Materials                                                                   198000

           Finished goods                                                                   36000

Purchases:Raw materials                                                          1110000

                 Loose tools                                                                   48000

Sales                                                                                                                      3960000

Wages and Salaries :Factory                                                        818000

                                 Administration                                             324000

                                 Sales department                                          180000

Rates and Insurance                                                                        96000

Repairs and Maintainance to Buildings                                         60000

Sales Expenses ,including motor running expenses                       86000

Electricity and Power                                                                    360000

Industrial Training Levy                                                                18000

Administration Expenses                                                               168000

Provision for doubtful debts                                                                                   60000

Debtors and Creditors                                                                    496000             482000

Drawings                                                                                        120000      

Cash in Hand and Bank Overdraft                                                   6000               216000

                                                                                                     6530000              6530000

The following additional information is available

      i.         Closing stock 31 march 2018

Raw materials 168000000 Finished Goods 334000000 Loose Tools 96000000

     ii.         Provision is to be made for the following amounts owing  on 31 March 2018

Electricity and Power 48000000 New Machinery 150000000

 iii       Payments in advance on 31 March 2018  were as follow  Vehicle licences 630000 rates 3450000

iv Depreciation on Plant and Machinery and salesmen vehicles is to be provided at the rate of 20% and 25% respectively on cost at the end of the year

v Bad debts amounting to 6500000 are to be written off and provision for doubtful debts to be 10% of Trade Debtors

vi The following expenses to be apportioned two thirds to factory and one third to administration

Electricity and Power

Repairs and Maintenance

Rates and Insurance

 

Required: Manufacturing, Income Statement and Statement of Financial Position as at 31 March 2018

 

 

FINANCIAL PLANNING PROCESS

The process of generating short-term financial forecasts is depicted in Figure 11.1 below. A systems approach is necessary for development of the budgets. They input is the sales forecast, from productions are prepared then the cash budget and the pro-forma income statement and finally the pro-forma balance sheet. The steps are summarized as:

1.              Establish a sales projection.

The key input to preparation of cash budgets is the firms revenue (sales) forecast.  It is on the basis of this forecast that the manager predicts cash receipts, cash outlays, fixed asset requirements and the amount of outside financing that will be necessary.  The sales forecast could be eternally based (i.e. on the national GDP) internally based or a combination of the two.

 

2.              Determine a production schedule and the associated use of raw materials, labour, overheads and operating expenses. The number of units produced will depend on the beginning inventory, the sales projections, and the desired level of ending inventory

3.              Prepare the pro-forma income statement and the cash budget.

4.              Finally, develop the pro-forma balance sheet.

 

 

 

 

Figure 11.1

Short term financial planning process

Current period balance sheet

 
 

 


 

 

 

 

 

 

 

 

 


9.3 PREPARING FINANCIAL FORECASTS

 

Two key outputs of short-term financial planning are:-

 

(i)             cash budgeting

(ii)           Pro-forma financial statements

We will from now hence in this lecture concentrate on the preparation of these statements.

 

 

11.3.1  Cash Budgets

The cash budget is a statement of the firm’s planned cash inflows and outflows over a period of time.  Typically a cash budget may be for a year, divided into smaller time intervals. Its main uses are enable the firm foresee any future deficits in cash and hence make prior arrangement to obtain necessary bridging short term financing (overdraft and short term loans): in the case of a surplus cash, a plan can plan for beneficial short term investments (marketable securities).The general format of a cash budget is as follows:-

 

JANUARY

FEBRUARY

Cash receipts 

XXX

XXG

Less cash disbursements           

XXA

XXH

Net cash flow

XXB

XXI

Add beginning cash balance

XXC

XXD

Ending cash balance

XXD

XXJ

Less minimum balance

XXE

XXK

Required total financing

 

XXL

Excess cash balance

XXF

 

 

Let’s now examine the two main components of the cash budget.

 

Cash Receipts

Cash receipts include all of a firm’s cash inflows during the period. The most common sources of cash are cash sales, collections from debtors, other operating receipts and capital receipts from sales of fixed assets, borrowings and issue of shares. Depending on the credit terms offered to customers, and their payment habits, a schedule for collections from debtors could be necessary working for the preparation of the budget..

 

Cash Disbursement

The most common cash disbursements are cash purchases of stock, payment to creditors, payment of expenses like rent, wages, and utilities, purchase of fixed assets, interest payments, dividend distributions, repayment of loans and payment of taxes.  Depreciation and other non cash charges are not included in the cash budget.

 

Example

The actual sales and purchases for Sirikwa Importers Ltd. for September and October 2005, along with its forecast sales and purchases for the period November, 2005 through April, 2006, follows:-

 

MONTH

SALES

 Sh.‘000’

PURCHASES  Sh.‘000’

September (actual)

210,000

120.000

October (actual)

250,000

150.000

November

170.000

140.000

December

160.000

100.000

January

140.000

80.000

February

180.000

110.000

March

200.000

100.000

April

250.000

90.0000

 

The firm makes 20% of all sales for cash and collects on 40% of its sales in each of the 2 months following the sale.  Other cash inflows are expected to be Sh. 12 million in September and April, Sh. 15 million, in January and March and Sh. 27 million in February.  The firm pays cash for 10% of its purchases. It pays for 50% of its purchases in the following month and for 40% of its purchases 2 months later.

 

Wages and salaries amount to 20% of the preceding months sales.  Rent of Sh.20 million per month must be paid.  Interest payments of Sh.10 million are due in January  and April.  A principal payment of Sh.30 million is also one in April.  The firm expects to pay cash dividends of Sh.20 million in January and April. Taxes of Sh.80 million are due in April.  The firm also expects to make a Sh.25 million cash purchase of fixed assets in December.

 

The firm had a cash balance of Sh.22 million at the beginning of November and wishes to maintain a minimum balance of Sh.15 million

 

Required:

 

(a)        A cash budget for the six months November through April

(b)       If the firm were requesting a line of credit to cover needed financing for the period November to April, how large would this line of credit have to be?  Explain.


 END

Tuesday, February 11, 2025

DEMAND LETTER (SCOPE & PURPOSE, WITH SAMPLE )

 



1. INTRODUCTION:


· The demand letter is written after taking instructions from a client.

· Demand Letter: It is a formal notice demanding that the addressee perform a legal obligation, such as rectifying a problem, paying a sum of money or honouring a contractual commitment, on specific terms and within a specified time.

· No Court proceedings: The letter gives the recipient a chance to perform the obligation without being taken to Court.

2. SCOPE OF THE DEMAND LETTER:

· It is a letter sent to the person against whom a grievance is raised.

· It is sent before the commencement of the suit.

· The letter is intended to elicit a payment or compliance from the part of the prospective defendant.

· It serves to inform the adversary of a pending claim.

· The adversary is given a time-frame within which a response is required.

· It may be written by the person seeking redress, or by a legal representative on the person’s behalf.

· A copy is made and the original sent in a way that provides proof of delivery i.e., by: a) registered mail, or b) it can be served by a registered legal clerk.

3. PURPOSE OF A DEMAND LETTER:

· It is to afford both parties an opportunity to avoid embarking on unnecessary litigation or incurring additional costs, especially within the context of overburdened judiciary and the reality of a constricted economy.

· It serves as notice to the other party, that there is an issue against them.

4. DEMAND LETTER: WHETHER MANDATORY?

· In most types of legal proceedings, especially civil suits guided by the Civil Procedure Rules, 2010, a demand letter is mandatory.

· Order 2, Rule 10(3)(b) of the Civil Procedure Rules, 2010: Particulars of pleading: Where a party alleges as a fact that a person had knowledge or notice of some fact, matter or thing then, the Court may, on such terms as it thinks just, order that party to serve on any other party where he alleges notice, particulars of the notice.

· Order 3, Rule 2(d) of the Civil Procedure Rules, 2010 provides that all suits filed including suits against the Government, except small claims, must be accompanied by copies of documents to be relied on at the trial including a demand letter before action.

· Rule 53, the Advocates Remuneration Order, 1962: No advocate’s costs where suit brought without notice except on special order: If the plaintiff in any action has not given the defendant notice of his intention to sue, and the defendant pays the amount claimed or found due at or before the first hearing, no advocate’s costs shall be allowed except on a special order of the Judge or Magistrate. Thus, where a demand letter is excluded, a party may not be able to claim for costs in the suit.

5. REASONS FOR MAKING FORMAL DEMAND:

a) To avoid incurring additional costs of suit should the claim be admitted by the other party.

b) To avoid suits that may be vexatious or brought out of malice.

c) To give notice of intention to right a wrong against a legal right.

6. CONTENTS OF A DEMAND LETTER:

a) Date.

b) Authority giving the advocate to act for the claimant i.e., “I HAVE BEEN INSTRUCTED BY …”

c) Summary of the matter in issue.

d) Demand for a specific relief or payment sought.

e) Deadline by which the matter must be settled.

f) It should be addressed to the person against whom the complaint is made, or the recipient’s lawyer, or if the person has an advocate to whom s/he has donated power, to such person holding the power of attorney.

g) The term “DEMAND LETTER” stated in the body of the letter to direct the recipient to act accordingly

h) Clear intimation that payment is required. It must be of a peremptory character and unconditional.26

i) Reasonable duration to respond i.e., 7 days, where debtor resides in the same town as advocate, 10 days, where he resides in a different town in Kenya and 15 days, where he resides outside East Africa.

j) Consequences of default or non-adherence to the demand of claim.

k) Name and signature of the advocate. It is a document that is chargeable under the Advocates (Remuneration) Order, 2009 and it therefore attracts the prohibition under Sections 34 and 35 of the Advocates Act, Cap 16, i.e., it should not to be drawn by an unqualified person, or remuneration thereof accepted by an unqualified person. In Singh v. Munshi Ram27 it was held that “signing in the name of the Firm is not sufficient and not safe. It may lay the demand letter open to challenge as not being given either by the party or by an advocate as his representative on his behalf.”

l) A threat that criminal proceedings would be initiated against the debtor in event of non-payment: A demand letter should not demand from the debtor the costs of the advocate giving notice.28 There is both a statutory and professional bar to making such a demand. Rule 11 of the Advocates (Practice) Rules, 1966 provides that no advocate may request in a letter of demand before action payment from any person other than his client of any costs chargeable by him to his client in respect of such demand before action, or in respect of professional services connected with the demand. But, if subsequent to the original letter of demand, the debtor requests to be allowed to make payment of demand sum by installments, and the terms are accepted, then it is permissible to add the advocate’s costs to the principal sum owing. This must be done at the time of accepting the proposal of payment by installments. This is permissible because fresh consideration is being given by the creditor, for adding those costs to the principal amount.

m) It should contain sufficient facts that would enable the other party to understand what the case is all about. In other words, it should be long enough to convey the material facts.

n) In a defamation case, it should set out the specific words complained of and the language used in the words.

· It is important to note that the demand letter will later become highly relevant in subsequent applications and hearings in the suit, as well as to an assessment of the conduct of parties.29 Express provisions is made in the Civil Procedure Rules, 2010 for a Court to order that particulars of any notice earlier pleaded to be supplied to the opposite party.

· The demand letter should be in consonance with the plaint. In Abdulla v. Esmail30 and Jared Benson Kangwana v. Attorney-General31 it was held that where the plaint is at variance with the demand letter, particulars in explanation must be given by the plaintiff.

· After receiving the response to a demand letter, an advocate should:

a) seek the client’s opinion on the next course of action;

b) advise the client on settling the matter out of Court;

c) advise the client on the economics of going to Court.

7. ‘WITHOUT PREJUDICE’ COMMUNICATION’:

· The legal phrase “Without Prejudice” should not be written in a Demand Letter. However, in Millicent Wambui v. Nairobi Botanica Gardening Limited,32 it was held that once the person who is being claimed against responds, an advocate should quote the legal phrase “Without Prejudice” to protect the sender with regard to the contents of the letter.

· Scope of protection: The protection goes only in so far as protecting the communication between parties that genuinely attempts to resolve the disputes between the parties. Thus, the doctrine protects admissions, concessions or offers made by parties in communication.

· The words ‘without prejudice’ impose upon the communication an exclusion of use against the party making the statement in subsequent Court proceedings.

· A party making a ‘without prejudice’ offer does so on the basis that they reserve the right to assert their original position, if the offer is rejected and litigation ensues. However, the ‘without prejudice’ communication could be admissible if:

a) the issue was whether or not the negotiation resulted in an agreed settlement or whether the communication was made at all;33

b) waiver by the parties;

c) there is need to prove that there was fraud or perjury;

d) there is need to explain some delay in proceedings, especially where one of the parties seeks to have the suit dismissed.

· How to show that communication is without prejudice: The words should be inserted at the top of the correspondence. However, there is no rule that requires the words to be at the top. It can also be inferred by the conduct and can be oral.

8. WHEN DEMAND LETTER WOULD NOT BE ADVISABLE:

a) Anton Pillar Order.34

b) Mareva Injunction.35

· Initial application for the above is usually made ex parte without notice to the defendant.

· Knowledge by defendant that the application is pending may defeat the very object which the plaintiff is trying to achieve, through dissipation of the subject matter of the suit, or removal of assets of the debtor from the Court’s jurisdiction, etc.

· A demand letter would thus adversely affect the element of surprise and the efficacy of the Court orders.

9. ILLUSTRATION:

MPOLE & SAMU COMPANY ADVOCATES MUTULA HALL, SECOND FLOOR,

P.O. BOX, 100356-00100, NAIROBI, KENYA

Tel: 0723321654 / 020-2586987

Email: mpole75@gmail.com

……………………………………………………………………………………………………………………...

Our Ref: DL/10/2017 Your Ref:

TBA

20th July 2017



“WITHOUT PREJUDICE”

TO

SAMUEL BITOO,

P.O. BOX 1289-00100, “BY REGISTERED

POST” NAIROBI.

Dear Sir,

DEMAND LETTER



We have been instructed by our client Mrs. Moses Limutu to address you as follows:



On 19th June 2017, our client painted your home for a contract price of Ksh.1,500,000. While you made the first two of the contract payments as agreed, you have delayed and/or refused to make the final payment of Ksh.500,000.


Our client has made repeated attempts to collect, but you have not come forward with the money.

Our instructions are to DEMAND from you, which we HEREBY DO, the immediate arrangements to make the final payment of Ksh.500,000 to my client.



TAKE NOTICE that unless you comply within the next 30 days from the date hereof, we shall commence proceedings without further reference to you whatsoever and at your risk as costs and other attendant consequences.



Yours faithfully,



MPOLE KAVITA

FOR: MPOLE & SAMU COMPANY ADVOCATES



Cc: Client