1

LEGAL SYSTEMS AND METHODS

CHAPTER 1
NATURE AND SCOPE OF LAW DEFINITION
OF LAW

Several scholars and practitioners have made

several attempts to define law. The term law
usually refers to a concept or process. No
definition of law could satisfy everyone; no
definition could be ‘true’ or ‘false’ except by
some outside standard based on an ethical
feeling, or an experience. Definitions of law are,
in short, conventional. They are good or bad,
adequate or inadequate, depending on the
purpose of the definition. Law refers to limits
upon various forms of behaviours. Some laws
are descriptive i.e. they simply describe how
people or even natural phenomenon usually
behave. Other laws are prescriptive – they
prescribe how people ought to behave
(normative laws).
At times the word law has been used rather
narrowly to mean a book of rules, or set of
norms. For instance when lawyers say they
must ‘look up the law,’ they mean that they
intend to look in their books for some formal
written rule.
The word law is also used to refer to processes
and institutions which carry out or enforce
legal rules. When a person is caught or
arrested, we sometimes say that person ‘fell
into the hand of law’. The anthropologist,
Hoebel, defines a norm as legal ‘if its neglect
or infraction is regularly met, in threat or in
fact, by the application of physical force by
an individual or group possessing the
socially recognized privilege of so acting.’
Max Weber calls a rule law if, “it is externally
guaranteed by the probability that coercion, to
bring about conformity or avenge violation, will
be applied by a staff of people holding
themselves specially and ready for the
purpose.”
John Austin defines law as “the body of rules
for the guidance of human conduct which is
imposed upon and enforced among the citizens
of a given state.”
Law: set of rules that govern a society,
acceptable by the society for discerning wrong
and right,
breach of which results in sanctions.
Salmonds' definition of law: set of rules that
are used to govern a society which are backed
by
sanctions.
Savigny's definition of law: law is the people's
will
2
Three aspects of the definition can be
recognized;
1. Imposed upon: Generally speaking laws are
imposed from above by some person or
collective body which has seized power or
reserved to itself the right to make laws. The
body is called a ‘sovereign’ body. The sovereign
body in Kenya is parliament which is
the sole legislative body.
2. Enforced among: Law has to be enforced for
it to be obeyed and this means we must
have some sort of police authority, with powers
or arrest where it appears that the law has
been broken. Since law is a very wide book of
rules, embracing matters of both public
and private interest, it is usually prudent to
enforce only those matters which are of public
interest by powers or arrest.
3. The citizens of a given state: The law has
to be applied within a given country. It has to
apply within a nation state. A state is a lightly-
knit community of people often of
common descent, inhabiting a territory
bounded by defined limits and forming a
society
under a single government and obeying a body
of laws which have been imposed upon,
and are enforced among, the citizens. This
means that a state has to be sovereign with
some law-making powers.
From these definitions, it is clear that at the
heart of the law we find authoritative rules or
norms, institutions, processes and people that
deal with them – those who make rules, or give
orders to other people or interpret rules and
norms, or try to carry them out.
The world of law is the world of authoritative
rules, the institutions that carry them our, and
their
impact on society. The rules are those having
behind them at least as a possibility, some
chance to legitimate public sanction.
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LAW AND MORALITY
The issue of concern here is the relation
between law and morals. Two questions
warrant our
address.
• Has the development of law been influenced
by morals?
• Must some reference to morality enter into an
adequate definition of law or legal systems?
Morality defined is a set of beliefs, values,
principles and standards of behavior found in
social groups.
A debate has been raging over time as to
whether law and morals are related. The
answer to this query must be in the affirmative.
This is so because morality has determined the
course of the law, sometimes, covertly and
slowly through the judicial process and at
times openly and slowly through legislation.
For instance in the case of: Shaw v. Director
of Public Prosecutions (1962) A.C. (House of
Lords Decision)
The Defendant, Shaw, published a booklet
called the 'Ladies' Directory', which advertised
the names and addresses of prostitutes,
included their pictures, and a description of
services they would perform. Shaw was
charged with 'conspiracy to corrupt public
morals.' Shaw argued that the charge was
illegal because no law criminalizing conspiracy
to corrupt the public morals existed.
Held
Courts have a residual power to superintend
offenses which are prejudicial to the public
welfare. Further, courts are "guardians of
public morals" and therefore ought to restrain
and punish, regardless of whether the common
law has a particular law against such immoral
acts. It is however, worthy of note that there
are certain instances where law and morals
part ways.
This is founded on the belief that there must be
a realm of morality and immorality which is not
the law’s business.
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Morality is however connected to law in many
ways;
1. The suppression of vices is as much the
law’s business as the suppression of subversive
activities.
2. Conditions under which a person may be
held liable in law may be seen as based on the
moral idea of ‘blame’ or ‘fault’.
3. Some of the underlying principles in
liability in law are rooted in conceptions of
morality and the way in which these moral
principles are incorporated into the law may
best be appreciated by means of the criminal
law.
4. Both law and morality have their origins in
mysterious revelations through religious
visionaries and re firmly rooted in social
conditions and practices. Law and morality are
human constructions having their foundation
in scriptures as written and interpreted at
various times, in traditions or cultural patterns
or in the conditions of social life prevailing at
different periods which are influenced and
underpinned by historically specific economic
and political formulations. Rules both moral
and legal arise as responses to social or
political problems and crisis.
ROLE OF LAW IN SOCIETY
One of the many ways in which human
societies can be distinguished from animal
groups is by reference to social rules. The
social rules are applied until they acquire legal
status to become legal rules. A rule can be
defined as a general norm guiding conduct or
action in a given type of situation. It prescribes
what activity may, should or should not be
carried out, or refers to
activities which should be carried out in a
specified way. Rules of law may forbid certain
activity, or they may impose certain
connotations under which may be carried out.
At the same time, law contains some rules
which are ‘power-conferring’ rules, i.e. rules
which enable certain activities to be carried out
with some form of legal backing and protection.
Because a rule guides us in what we may,
ought or ought not to do, it is said to be
normative.
An understanding of law cannot be acquired
unless the subject matter is examined in close
relationship to the social, economic and
political contexts in which it is created,
maintained and
implemented. Society is usually used to depict
a loose collection of people institutions and
other
social phenomena in the midst of which law
occupies a central place, holding these social
arrangements together in an orderly fashion. It
exhibits certain regular patterns of behavior,
relationships and benefits. Law then acts as
social glue holding us all inside a boundary of
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legality and punishing those who try to
extricate themselves. It is one component of the
overall
social structure, having links and dependence
with other social elements and forces.
Law plays the following important roles in
society:-
1. It defines and regulates all kinds of social
relationships, between individuals and between
groups.
2. It identifies and allocates official authority
e.g. it is through legal rules that specific
powers are vested in parliament to enact laws,
and in courts to administer the law and to
mete out sanctions and remedies in criminal
and civil cases.
3. Law is also used to provide institutional
setting for the resolution of disputes between
private individuals.
4. It can also be used to achieve certain
positive objectives of social or economic policy
e.g.
through the intervention of law to ensure that
business transactions are protected.
5. It fulfills the function of maintaining the
boundaries between acceptable and
unacceptable behaviour, thus it helps to
maintain the collective conscience and hence
the
cohesion of the group.
6. Law also takes on the form of compensating
rules, where the object is not to punish, but
to solve grievances by trying to restore the
aggrieved person to the position he / she was
in prior to the dispute.
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CLASSIFICATION OF LAW
a) International and Municipal Law
International law falls into two divisions
namely; public and private international law.
Public international law is concerned with
regulating the relationships between different
states and international organizations.
Private international law relates to disputes
between nationals of different countries
arising out of civil wrongs or business
arrangements.
Sources of international law include treaties,
convention, customs, writing of legal
academicians, and opinion of the Court of
Justice etc.
Municipal law on the other hand is law of a
national state. It is this law that supports the
citizens in their day –to-day activities
circumscribing their actions. This law has no
extra-territorial effect and is passed by the
sovereign body of the nation states. Its
primary source includes the constitution and
Statutes/Acts of Parliament.
b) Public and Private law
Public law is concerned with the enforcement of
a code of conduct upon the citizens and
one of the most important of its branches is
criminal law. Private law is concerned with
the settlement of disputes between citizens.
c) Criminal and Civil Law
A crime is defined as a wrong which is
considered to be sufficiently important to
society
as a whole that society itself should punish it.
The prosecution is commenced in the
name for the state and the sentence awarded is
either punitive, deterrent or reformative.
The case is instituted in the name of the
republic on behalf of the sovereign authority.
Civil law on the other hand deals with matters
which are of a private nature. Whoever
feels that their private rights have been abused
may bring the matter before an appropriate
court by a simple procedure. The grievance is
said to be actionable at the suit of the
‘aggrieved party’. Usually after the findings, an
award for damages which is
compensatory is nature is made.
d) Substantive and Procedural Law
Substantive law is that branch of law that
defines the various rights and obligations
available to the citizens and the state, between
individuals etc. For instance, substantive
law will define or proscribe conduct that would
amount to a crime.
Accordingly, if any person does such conduct,
he / she is convicted of the alleged crime.
Substantive law also defines what amounts to
civil wrongs. Upon such definition, the
law proceeds to prescribe the sentence
available. In criminal cases, substantive law
will
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for instance provide for imprisonment or in the
alternative, the payment of a fine. In civil
cases, a finding is made followed by an award
which is in monetary form. Examples of
substantive law in Kenya include, the Penal
Code Cap 63, Law of Contract Act Cap. 23
etc.
Procedural law on the other hand is that law
that prescribes the procedure to be followed
in an attempt to enforce one’s rights in a court
of law. It lays down the procedures by
providing or stating how to commence
proceedings in court, the steps to be followed
during the hearing and the steps to be followed
in enforcing the judgments. Examples of
procedural law include, the Criminal Procedure
Code, the Civil procedure Act and the
Appellate Jurisdiction Act among others.
CONCLUSION
Law is a tool that oils the social, political and
economic machine. It affects virtually all
spheres
of human life. A deliberate attempt to
appreciate its role in life should be made.
REVISION EXERCISE 1
1. Analyze three definitions of ‘law’.
2. What is in your consideration opinion in the
source of law?
3. Examine the role of law in society.
4. Can society be more orderly without law?
5. How has the development of law been
influenced by morals?
6. Analyze the various categories of laws.
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CHAPTER 2
COMMON LAW SYSTEMS
The term ‘common law’ has 3 widely used
meanings;
(a) In its general sense, the term refers to the
entire body of English Law other than
Acts of parliament which is unwritten in
nature.
(b) Sometimes the term is used more broadly to
refer generally to the English
approach of law thus the common law system
of England as contrasted to the civil
law system of continental Europe. Civil law
system has all laws codified into
statutes known as codes.
(c) In a narrower sense, ‘common law’ is
contrasted with ‘equity’.
Historical development of Common Law
The earliest English laws, for which there is
documentary evidence date back to the Anglo-
Saxon period of English history, before the
Norman Conquest in 1066. England was
divided
into various tribal areas, each populated by
settlers who had come from various parts of
Europe.
Dane law prevailed in the coastal areas of the
North and North-east; Mercian law around the
Midlands; and Wessex law applied in south and
West England. These laws were based on the
age-old customs the settlers had brought with
them. There were marked discrepancies and
diversities between the different tribal laws, but
for convenience they are now collectively
referred to as the Anglo-Saxon Laws.
The Norman Conquest eventually replaced the
above system with a strong central government
which drew its authority from the feudal
system of land tenure. This gave a strong
central
authority to the King, and the country was run
personally by him, advised by the Curia Regis
(Kind council). The council was legislature,
administration and judiciary. The chief method
of
control was the general ‘eyre’ – a system of
travelling commissioners who administered
justice,
collected taxes and gradually established a
common law and common procedures
throughout the
country. The eyre eventually became purely
judicial until crown court systems were
introduced.
The Norman Conquest changed the ancient
custom of the realm into the ‘common law of
England’. This was achieved by the use do the
general eyre that evolved to be known as the
Royal justices. The King appointed judges
known as ‘itinerant justices in eyre.’ They
travelled all over the country solving disputes.
9
The feature of this system which was to lead to
the ‘common law of England’ was that the
decisions of judges were binding upon one
another. The doctrine was known as stare
decisis –
let the decision stand. Since most of the cases
heard by the judges were local case, based on
customs, if a judge found a local custom to be
good and upheld it, it became law, because all
other judges has to follow it. Stare decisis
promoted certainty, uniformity and consistency
in the
new common law.
The royal justices were then expected to travel
back to London and met formally or informally
to
solve any problem that arose in the process of
deciding cases brought before them. They met
at
Westminster’s Hall where all the three common
law courts has their headquarters.
The accumulation of precedents soon
established a considerable body of common law
which
grew more comprehensively and detailed as the
years passed. Common law thus developed
based on judicial decisions.
Defects of Common Law and Subsequent
Development of Equity
As already observed, common law consists of a
body of principles built up from the precedents
of the old courts of common law. There were
three common law courts:-
(a) The Court of Exchequer.
(b) The court of common pleas.
(c) The court of King’s Bench.
Those who sought justice purchased a writ
form the writ office of Chancery. The
Chancellor
was the religious advisor to the King.
The original writs were simply noticed in
writing, addressed to some person against
whom a
complaint was being made notifying him or her
of the complaint and requiring him or her to
come into court and show why the plaintiff
should not have the justice sought. Unless a
claimant
could find an appropriate form of action, his /
her claim was not recognized by law.
10
The defects of the common law included:-
1. No writ, no remedy:
Only certain matters were dealt with so that if
there was not writ dealing with your
matter, you could not even get into court to
have redress. This occasioned injustice.
2. Money damages the only remedy
As far as common law was concerned, money
damages were the only remedy. Whatever
your complaint, the judge who upheld it would
order a sum of money as compensation
for the injustice done. However, money is not a
satisfactory remedy for many
complaints. People started looking for
alternative remedies.
3. Bias in High Places.
Judges were rich and powerful people and in
their journeys around the country they
naturally stayed with friends and relatives who
were also rich and powerful. The trouble
was that in the courts next day many of the
cases were either brought by these rich and
powerful people or were complaints against
them of unfair behaviour. A judge who was
in good terms would obviously favour his peers.
4. Non-recognition of Trusts
Under common law some rights were not
recognized. For instance; beneficiaries could
not benefit from a trust under common law.
This was unfair.
Equity is born
People unable to obtain any remedy form the
common law courts petitioned the King who
was
the symbol or foundation of justice. Since the
King and his council could not deal with the
everincreasing
number of petitions themselves, there were
forwarded to the Lord High chancellor
who was considered the keeper of the King’s
conscience. The chancellor, with his ability to
judge things from God’s point of view, was
clearly the best person to being in remedies
which
were improvements upon the common law
remedy of damages. By the end of the 15th
century
the chancellor had set up his own court, the
court of chancery to deal with these petitions
seeking
relief. In deciding these petitions, he was not
bound by common law, nor by the writ system
Equity’s remedy included specific performance,
injunctions, rescission of contract, revision of
contract etc.
The growth of equity was a long one and
involved a process which took two to three
hundred
years. By the end of 14th century the equity
side of the law had been developed into a
separate
court i.e. the court of chancery.
11
A number of equity principles also known as
the maxims of equity, were developed to settle
disputes which arose from bickering between
lawyers in the two types of courts. Equity
remedies were very popular compared to
common law and this caused problems.
Litigants felt that they were more likely to get
justice in chancery rather than in the common
law
courts. It must be noted that all equitable
remedies are discretionary and one cannot
insist on
them as a matter of right. They were available
at the discretion of the judge.
The maxims included:-
(a) Equity always follows the Law
Held that equity would apply the common law,
unless it was unconscionable to do so.
Thus if a case could be handled by the common
law courts, and money damages was an
adequate remedy, you couldn’t get anything
better from equity.
(b) Equity Looks on that as done which
ought to be done
Sometimes parties who make a contract refuse
to proceed with the formal procedure
which alone can affect the contract. Equity will
compel the party to execute the contract.
(c) He who comes to equity must come with
clean hands
If you seek to help of equity in some matter
where you allege improper conduct by
another, your own conduct must be above
reproach.
Other famous maxims of equity include delay
defeats equity; equity looks to the intent
rather than to the form; and equity will not
suffer a wrong to be without a remedy.
The advantage of equity was that it was less
formal and less legalistic than common law.
It was a reasonable business; it viewed cases
on their merits and was more flexible than
common law.
Equity has been described as a ‘gloss upon the
law’. It has been described as providing
the flesh over the dry bones of the common
law. Others describe it as providing clothing
over the naked body represented by common
law. Equity is not a full system of law, but
only a number of adjustments to the law to
clarify its meaning where the circumstances
under discussion are such that the law in
unclear, or makes less sense than it should in
the
circumstances. Currently, judges have power to
give either legal or equitable remedies
after the merger of the common law courts and
the equity court.
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ROMAN LEGAL SYSTEM
It will be recalled that many of the
characteristic institutions of Rome had
emerged
during the monarchy and had survived the
expulsion of the Kings in 510BC. Much the
same was true of early Roman law.
(a) Custom
Custom was ius non-scriptum – law that was
not written down. It consisted of those
practices which had become so firmly
established as to acquire obligatory force. The
recognition of custom however was hardly an
exact science. Roman jurists were
altering to debate whether custom could be
properly termed law or whether it was
only indirectly binding i.e. needing formal
recognition through justice’s interpretation
or some other agency. But there was no doubt
that Roman law was almost entirely
customary in origin. Many of the most
important and long lasting customs in the
realm of civil law were concerned with family –
its creation, structure and operation.
(b) Royal Decrees
The decrees of the kings (aegus regree) had
direct binding force as law but doubt
exists about the manner and extent of this
form of primitive legislation. It seems that
decrees were made periodically throughout the
legal period, sometimes in substantial
numbers as in the reigns of Romanus and
Tullins. The decrees were mainly
prescriptive or condemnatory laws on the other
hand laid down severe penalties for
various wrongs. These penalties sometimes
consisted of self-help or private redress
against the wrong doer e.g. retaliation was
allowed in some circumstances as
satisfaction for certain types of personal injury.
The most serious wrongs were
punished by more public forms of sanction,
including ritual execution.
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CIVIL LAW SYSTEM
Civil law (or civilian law) is a legal system
inspired by Roman law, the primary
feature of which is that laws are written into a
collection, codified, and not (as in
common law) interpreted by judges.
Conceptually, it is the group of legal ideas and
systems ultimately derived from the
Code of Justinian, but heavily overlaid by
Germanic, ecclesiastical, feudal, and local
practices, as well as doctrinal strains such as
natural law, codification, and legislative
positivism.
Materially, civil law proceeds from abstractions,
formulates general principles, and
distinguishes substantive rules from
procedural rules. It holds legislation as the
primary source of law, and the court system is
usually inquisitorial, unbound by
precedent, and composed of specially trained
judicial officers with a limited
authority to interpret law. Juries separate from
the judges are not used, although in
some cases, volunteer lay judges participate
along with legally trained career judges.
Principle of Civil Law
The principle of civil law is to provide all
citizens with an accessible and written
collection of the laws which apply to them and
which judges must follow. It is the
most widespread type of legal system in the
world, applied in various forms in
approximately 150 countries and oldest
surviving legal system in the world. Colonial
expansion spread the civil law system and
European civil law has been adopted in
much of Latin America as well as in parts of
Asia and Africa.
The primary source of law is the legal code,
which is a compendium of statutes,
arranged by subject matter in some pre-
specified order; a code may also be described
as "a systematic collection of interrelated
articles written in a terse, staccato
style."
Law codes are usually created by a legislature's
enactment of a new statute that
embodies all the old statutes relating to the
subject and including changes necessitated
by court decisions. In some cases, the change
results in a new statutory concept.
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Civil law systems may be subdivided into
further categories:
• Countries where Roman law in some form is
still living law and there has
been no attempt to create a civil code -
Andorra and San Marino.
• Countries with mixed systems in which
Roman law is an academic source of
authority but common law is also influential -
Scotland and the Roman-
Dutch law countries (South Africa, Zambia,
Zimbabwe, Sri Lanka and
Guyana)
• Countries with codes intended to be
comprehensive, such as France: it is this
last category that is normally regarded as
typical of "civil law" systems, and is
discussed in the rest of this article.
• The Scandinavian systems are of an
intermediate character, as they have a
background of Roman and customary law
together with partial codification.
The laws of Louisiana and Quebec may also be
considered as hybrid
systems, in that a French-type civil code
coexists with pre-revolutionary
French customary law and considerable
common law influence.
A prominent example of civil law would be the
Napoleonic Code (1804), named
after French emperor Napoleon Bonaparte.
The Code comprises three components:
the law of persons, property law, and
commercial law. Rather than a catalog of
judicial decisions, the Code consists of
abstractly written principles as rules of law.
Civil law is sometimes referred to as neo-
Roman law, Romano-Germanic law or
Continental law. The expression civil law is a
translation of Latin jus civile, or
"citizens' law", which was the Late Imperial
term for its legal system, as opposed to
the laws governing conquered peoples (jus
gentium).
This is contrasted with the Common Law
system in that it is not based on judicial
decisions. It is largely codified hence the law in
such a system is found in written
codes. This is the typical scenario in
continental Europe in countries like France
and
Germany.
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CUSTOMARY LEGAL SYSTEM
Although custom was an important source of
law in early time, it’s importance
continuously diminished as the legal system
gained. As an instrument of the
development of English law in particular, it has
almost ceased to operate, partly
because it has to a large extent been surpassed
by legislation and precedent and partly
because of the stringent limitation imposed by
law upon its law creating efficacy.
There is more than one reason for thus
attributing to custom the force of law.
(a) Custom is the embodiment of those
principles which have commended themselves
to the
national conscience as principles of justice and
public utility. The fact that any rule has
already the sanction of custom raises a
presumption that it deserves to obtain the
sanction
of law. Custom is to society what law is to the
state.
(b) The existence of an established usage is the
basis of a national expectation of its
continuance in the future. Justice demands
that unless there is good reason to the
contrary, rational expectations shall so far as
possible, be fulfilled rather than be
frustrated.
Kinds of Customs
All customs which have the force of law are of
two kinds which are essentially distinct in their
mode of operation. The first kind of custom is
operative as a binding rule of law, independent
of
any agreement on the part of those subject to
it. The second kind consists of custom which
operates only indirectly through the medium of
agreements whereby it is accepted and adopted
in
individual instances as conventional law
between the parties.
These two kinds of customs may be
conveniently distinguished as;
(a) Legal
(b) Conventional
Legal custom: - this is one whose legal authority
is absolute and possesses the force of law.
Conventional custom: - is one whose authority is
conditional on its acceptance.
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SOCIALIST / COMMUNIST LEGAL SYSTEM
In 1917 Russia began to build a new type of
society. The society to be created was a
communist one under the aegis of fraternity,
where there will be no more state and no
more law. These will have been made
superfluous by a new feeling of social solidarity
developed through the disappearance of the
capitalist world’s antagonisms. The need for
coercion will have disappeared, and social
relations to be ruled primarily by communist
morality, will only be subject to simple rules of
economic organization and necessity.
The present law as applied in the communist
world has an undoubted affinity to the
Romanist laws. It has to a large extent retained
the terminology of these laws and, in
appearances, at least their structure; it has a
concept of the legal rule which seems no
different from that of French or German jurists.
According to socialist scholars / jurists, law is
nothing more than a superstructure; the
reflection of a certain economic structure; it is
unscientific and contrary to all reason to
ignore the bond of fundamental importance
uniting the law and the economy and to
fasten on resemblances of differences which in
the last analysis, are purely formal.
Marxism is the basic doctrine of socialist laws.
Marxism has discovered the laws which
rule the development of society and the
ultimate formula which will make possible the
advent of a society founded on peace and
harmony, victorious over misery and free from
crime. Those who do not adhere to this doctrine
and who reject, or even put in doubt, the
postulates of Marxism are, whether consciously
or not, the enemies of mankind whose
false ideas must be eliminated. Marxism is an
explanation of the world. It is a guide for
action, indicating the path to follow in order to
create a supposed better world.
Marxists further argue that originally there
existed a classless society in which all people
enjoyed the same position with respect to the
means of production; individuals were
equal and independent of each other, because
productive forces were free and at the
disposal of all. They respected rules of conduct
but these rules, being founded simply on
habits and corresponding to current behavior,
were not legal rules, law and state only
appears when society is divided into social
classes, one of which economically exploits
the other. In such a situation, the ruling class
has recourse to law and the state in order to
strengthen and perpetuate its domination. The
law is an instrument which in the class
struggle, safeguards the interests of the ruling
class and maintains the social inequality for
its own profit. It can be defined as that series of
social norms which regulate the
dominating relationship of the ruling class to
the subjugated class, in those areas of this
relationship which cannot be maintained
without recourse to the oppression wielded by a
solidly organized state.
17
ISLAMIC LEGAL SYSTEM
Muslim law is not an independent branch of
knowledge or learning. It is only one of
the facts of Islamic religion itself. This religion
includes first of all a theology which
establishes dogma and states exactly what a
Muslim must believe and it also includes
the sharia which lays down rules of behaviour
for believes. The ‘sharia’ literally ‘the
way to follow’ constitutes what can be called
Muslim law. It specifies how the
Muslim should conduct himself in accordance
with his religion, without making any
distinction in principle between duties towards
others and those towards God. It is
therefore centered on the idea of man’s
obligations or duties rather than on any rights
he might have. The law is only applicable to
dealings between Muslims.
The fundamental principle of Islam is that of an
essentially theocratic society, in
which the state is only of value as the servant
of revealed religion. Instead of simply
proclaiming more principles or articles of
dogma to which Muslim communities
would have to make their laws conform,
Muslim jurists and theologians have build up
a complete and detailed law on the basis of
divine revelations, the law of an ideal
society which one day will be established in a
world entirely subject to Islamic
religion.
Sources of Islamic law include:-
▪ The Koran(Quran)
▪ The Suna – the traditional or model behaviour
of the prophet, God’s
messenger
▪ The Ijuria or consensus of scholars of the
Muslim community
▪ The Kiyas (Quyas) – Juristic reasoning by
analogy.
18
HINDU LEGAL SYSTEM
Hindu law is the law of a community which in
India and other South East Asian
countries and parts of Africa, and observes the
Hindu religion i.e. Hinduism.
Hinduism propounds a concept of this world
which has spiritual and moral
implications, with considerable latitude but in
respect to dogma. This concept implies
a special social structure (the caste system)
and a particular way of life, with the result
that religious precepts in large part assume the
rule which, in other societies, fall to
the legal system. A large sector of social affairs
is however governed today by
legislation national in scope and rooted in
English ideas.
According to Hindu community law, ‘man’ is no
more than an abstraction; there are
only ‘men’ each marked by the social category
to which he belongs. The different
categories of men are both complementary and
hierarchical, such that distinct rights,
duties and even moralities are attached to
each. The rules governing the behaviour of
men are explained in texts known as satras
which correspond to the virtue, interest
and pleasure of men. Some satras teach man
how they must behave to be righteous;
this is the science of Dharma; that showing
men how to enrich themselves and
instructing princes in the art of governing is
Artha, i.e. the science of what is
expedient and of politics. Others deal with the
sense of pleasure, or Kama.
Dharma is founded on the belief that there
exists a universal order inherent in the
nature of things, necessary to the preservation
of the world, and of which the gods
themselves are merely the custodians. Dharma
is the expression of the external laws
which uphold the world. Accordingly, Dharma
embraces the whole of man’s
behaviour. It does not distinguish between
religious duties and legal obligations.
One must forego observance of a rule of
conduct consecrated by the texts in cases
where it is reproved or spurned by the world.
Customary rules, the product of
contingencies of time and place, nevertheless
have no connection with the divine
behest which is the basis of Dharma.
Reason and equity are other elements which
can supplement custom in the regulation
of Hindu conduct. The satras call upon the
individual to act, and the judge to decide,
according to his good conscience, justice and
equity in cases where strict rules of law
do not apply.
19
CONCLUSION
Emphasis should be laid on the English Legal
System being the one whose features
are part and parcel of the Kenyan Legal
System. However, one should note that there
is a correlation between all the systems.
REVISION EXERCISE 2
1. Briefly state the features of three major legal
systems.
2. Examine equity’s development
3. State and explain three maxims of equity.
20
CHAPTER 3
SOURCES OF KENYAN LAW
INTRODUCTION
The first port of call when interrogating the
sources of Kenyan law is section 3(1) of the
Judicature Act (Chapter 8 Laws of Kenya). The
Act provides as follows:
“3. (1) The jurisdiction of the High Court, the
Court of Appeal and of all subordinate courts
shall be exercised in conformity with -
(a) the Constitution;
(b) subject thereto, all other written laws,
including the Acts of Parliament of the
United
Kingdom cited in Part I of the Schedule to this
Act, modified in accordance with Part II of that
Schedule;
(c) subject thereto and so far as those written
laws do not extend or apply, the substance of
the
common law, the doctrines of equity and
the statutes of general application in force
in
England on the 12th August,1897, and the
procedure and practice observed in courts of
justice in England at that date;
but the common law, doctrines of equity and
statutes of general application shall apply so
far
only as the circumstances of Kenya and its
inhabitants permit and subject to such
qualifications as those circumstances may
render necessary.
(2) The High Court, the Court of Appeal and all
subordinate courts shall be guided by African
customary law in civil cases in which one or
more of the parties is subject to it or
affected
by it, so far as it is applicable and is not
repugnant to justice and morality or
inconsistent
with any written law, and shall decide all
such cases according to substantial justice
without undue regard to technicalities of
procedure and without undue delay.”
21
THE CONSTITUTION
INTRODUCTION
A constitution is a set of fundamental
principles or established precedents according
to which a
state or other organization is governed. These
rules together make up, i.e. constitute, what
the
entity is. When these principles are written
down into a single or set of legal documents,
those
documents may be said to comprise a written
constitution.
Within a state, a constitution defines the
principles upon which the state is based, the
procedure
in which laws are made and by whom. Some
constitutions, especially written constitutions,
also
act as limiters of state power by establishing
lines which a state's rulers cannot cross such
as
fundamental rights.
The constitution defines the principal organs of
government and the checks and balances
which
have been developed to determine their
relationships one with another and with the
ordinary
citizen. It is the framework of law within which,
for that particular society, the rule of law
prevails. Kenya has achieved two constitutions
since attaining here independence from the UK
in
1963. We shall highlight on the two
constitutions in turn.
The Independence Constitution
This document contains the peace terms
negotiated during the Lancaster House
conferences of
the early 1960’s. The independence
constitution reflected the desires of the diverse
communities
living in Kenya at the time it was written.
Kenyan Africans were desirous of a country in
which
the basic freedoms were guaranteed, while the
whites living in Kenya at the time might have
had
the question of protection of property top on
their minds.
The independence constitution (as amended)
was divided into Eleven Chapters as follows:-
Chapter 1 Declared Kenya to be a Republic
and that the constitution is the supreme law of
the land.
Chapter II Executive
The executive authority of the Republic was
vested in the President who was both
the Head of State and Commander in chief of
the armed forces. It also established
the office of the vice-president and the cabinet.
Section 23 vested the executive
authority of the government in the President.
Section 26 established the office of
the Attorney General.
22
Chapter III Legislature
Section 30 provided to the effect that the
legislative power of the Republic vested
in the Parliament of Kenya which consisted of
the President and the National
Assembly.
Section 41 Established the Electoral
Commission of Kenya which consisted of a
chairman
with not less than four and not more than
twenty-one commissioners.
Section 46 Spelt the procedure to the followed
for purposes of enacting any law. It provided
that the legislative power of Parliament would
be exercisable by bills passed by
the National Assembly.
Section 47 provided the procedure to be
followed for purposes of altering the
constitution. It
required that any bill purporting to alter the
constitution shall not be passed by the
National
Assembly unless it has been supported on the
2nd and 3rd readings by the votes of not less
than
65% of all the members of the National
Assembly.
Section 58-59 gave the President power to
summon, prorogue and dissolve parliament any
time.
Chapter IV Judiciary
Sections 60 and 64 established the High
Court and Court of Appeal. Section 61
establishes the office of the Chief Justice and
other judges of the High Court and
Court of Appeal.
Section 62 provided for security of tenure of
judges.
Section 65 and 66 established other courts
including Kadhi’s courts. It also established the
office of the chief Kadhi.
Section 68 establishes the judicial service
commission.
Chapter V Fundamental rights and
Freedoms
Dealt with the protection of fundamental rights
and freedoms of the individual.
Individual rights were however to be exercised
subject to respect for the rights
and freedoms of other and for the public
interest.
Section 84 provided for the procedure for
enforcement of these protective provisions. The
chief
justice was empowered to make rules with
respect to the practice and procedure of the
High
Court in relation to the jurisdiction and powers
conferred upon it in respect of the enforcement
of
such rights.
Chapter VI Citizenship
It provided for three categories of citizenship as
follows:-
• Citizenship by registration
• Citizenship by birth
• Citizenship by naturalization
23
The independence constitution did not allow
dual citizenship.
Chapter VII Finances
All revenues or other moneys raised for the
purposes of the government of Kenya
were to be paid into and form a consolidated
fund. Such money can only be used
upon approval by parliament after presentation
of an estimated expenditure by the
government (budget).
Section 105 established the office of the
Controller and Auditor General whose office is
an
office in the public service.
Chapter VIII Public Service Commission
To appoint and discipline public officers.
Chapter IX Trust Land
Trust lands were vested in the county council
within whose area of jurisdiction it
is situated.
Chapter X General Matters
For instance about resignations from office, re-
appointments, concurrent
appointments and interpretation of terms as
used in the constitution.
Chapter XI Transitory
It provided for appeals against decisions of the
public service commission,
compulsory retirement to facilitate local
appointments etc.
Between 1963 and 2008, the Kenya
government spearheaded several amendments
to the
independence constitution that led to the
creation of an overbearing executive arm of
government
as juxtaposed with the legislature and the
judiciary. Major amendments during that
period
included:-
• 1964 – The constitution was amended to
make Kenya a Republic, and to establish the
office of an executive President who was to be
the Head of State and Government, and
also the Commander in Chief of the Armed
Forces.
• 1964 and 1965 - The Majimbo (federal
system legislature was dismantled through
three
constitutional amendments.
• 1966 - The constitution was amended to
reduce the parliamentary control over the
presidential exercise of emergency powers.
• 1966 - The bicameral legislative system was
dismantled by abolition of the senate and
cooption
of the senators into lower house.
24
• 1974 – The constitution was amended to
allow the President powers to pardon civil
offenders under the presidential prerogative of
mercy.
• 1982 - The constitution was again hastily
amended to make Kenya a de jure one party
state (inclusion of Section 2A in the
constitution).
• 1986 – Security of tenure for the offices of the
Attorney General and Auditor General
were removed.
• 1988 - Security of tenure for the judges of the
High Court and the Court of Appeal were
removed.
• 1990 - The tenure of offices of judges and AG
was restored.
• 1991 - Kenya became a multi-party state
(repeal of section 2A of the constitution).
• 2008 – Creation of the office of Prime Minister
in the executive arm of government with
shared executive with the President.
The various amendments to the constitution
since independence coupled with grievances
arising
out of the failures of the constitution led to a
clamor to overhaul the independence
constitution. It
is this clamor that resulted in the passage of a
new constitution for Kenya in August 2010.
The Kenya Constitution, 2010
• Preamble
• Chapter 1 – Sovereignty of the people and the
supremacy of the constitution.
• Chapter 2 – Declaration of the Republic.
• Chapter 3 – Citizenship – allows for dual
citizenship.
• Chapter 4 – Bill of rights – includes
economic, social and cultural rights.
• Chapter 5 – Land and Environment.
• Chapter 6 – Leadership and Integrity – Not
present in the independence constitution
• Chapter 7 – Representation of the people.
• Chapter 8 – The Legislature – National
Assembly and Senate.
• Chapter 9 – The Executive
• Chapter 10 – The Judiciary – Includes the
Supreme Court.
• Chapter 11 – Devolved government – 47
counties.
• Chapter 12 – Public Finances
• Chapter 13 – Public Service.
• Chapter 14 – National security
• Chapter 15 – Commissions and independent
offices
• Chapter 16 – Amendment of the constitution
• Chapter 17 – General provisions
• Chapter 18 – Transitional and Consequential
provision
25
Drafting process for the 2010 Constitution
The Constitution of Kenya was the final
document resulting from the revision of the
Harmonized
draft constitution of Kenya written by the
Committee of Experts initially released to the
public
on November 17, 2009 so that the public could
debate the document and then parliament
could
decide whether to subject it to a referendum in
June 2010.
The public was given 30 days to scrutinize the
draft and forward proposals and amendments
to
their respective Members of Parliament, after
which a revised draft was presented to the
Parliamentary Committee on January 8, 2010.
The Parliamentary Select Committee (PSC)
revised the draft and returned the draft to the
Committee of Experts who published a
Proposed
Constitution on February 23, 2010 that was
presented to Parliament for final amendments
if
necessary. After failing to incorporate over 150
amendments to the proposed constitution,
parliament unanimously approved the
proposed constitution on April 1, 2010. The
proposed
constitution was presented to the Attorney
General of Kenya on April 7, 2010, officially
published on May 6, 2010, and was subjected
to a referendum on August 4, 2010. The new
Constitution was approved by 67% of Kenyan
voters.
GOVERNMENT STRUCTURE
The key changes imposed by the new
constitution released are in the following areas:
Separation of Powers between the Three arms
of government i.e. Executive, Legislature and
Judiciary.
• The Executive - who holds executive authority
and the qualifications?
• The Legislature - the composition, and
representation of the people. An introduction of
an upper house - the Senate.
• The Judiciary - qualifications to hold office
and appointment.
• Devolution Only two levels of Government:
National and Counties.
• Citizenship - among other issues, gender
discrimination was ended, and citizens who
acquire foreign citizenship will not lose their
Kenyan citizenship.
Gains achieved
• An advanced Bill of Rights that among other
things recognizes Socio-Economic rights of
the Kenyan citizens. (Chapter Four).
• The removal of age limit of 35yrs to run for
President. The new Constitution allows
people to run as long as they are of adult age.
Article 137(b)
• Right to Recall legislators(Senators and
Members of the National Assembly).(Article
104)
26
• Representation in elective bodies has to
effectively meet a gender equity constitutional
requirement, namely that no more than two-
thirds of members shall be from either gender
in its makeup. Chapter 7, Article 81(b)
• Integrity Chapter, requires an Independent
Ethics Commission to be set up that will
monitor compliance with Integrity in all
government institutions and make
investigations,
recommendations to the necessary authorities
i.e. Attorney General and any other
relevant authority.(Chapter Six)
• An advanced Human Rights and Equality
Commission that will also have power to
investigate and summon people involved in
Human Rights abuses within the government
and with the public.(Article 252)
• Equitable Sharing of resources between the
National government and the County
government through a resolution of Parliament.
Chapter 12- Part 4.
• An Equalization Fund to improve basic access
to basic needs of the marginalized
communities. (Article 204).
• Any member of the Public has a right to bring
up a case against the government on the
basis of infringement of Human Rights and the
Bill of Rights - Article 23(1)(2). The
courts and government institutions are bound
to the Bill of Rights as per the constitution
Article 2(1), Article 10(1).
• The Salaries and Remuneration Commission
that is an Independent entity and has the
power of regularly reviewing salaries of all State
officers to ensure the Compensation bill
is fiscally sustainable. Article 230(5).
• Independence of the Judiciary is affirmed
Article 160.
• An Independent National Land Commission
created to Maintain oversight and manage
all Land (Public) belonging to National and
County Government and recommend policy
on addressing complaints from public, advise
the National government on ways of
improving National and County land
management, planning, dispute resolution.
Article
67.
• Environmental Rights are recognized under
Chapter 5(Part 2)
• Freedom of Media establishment from penalty
on expression, by the State on any
Opinion and dissemination of media. Article 34.
This is subject to the Article 33.
27
THE EXECUTIVE
The executive at the top most levels will be
constituted of a President, Deputy President
and
the Cabinet.
Key functions of the President
• Shall be the Head of state & Head of
government of the Republic of Kenya.
• Shall not be a Member of Parliament
• Commander-in-Chief - and will declare war
and state emergency upon approval by the
National Assembly and Cabinet respectively.
• Head of Government - will yield executive
authority and will co-ordinate and supervise
all major sections of the executive branch.
• Shall nominate, appoint with prior approval
of the national assembly, and dismiss
Cabinet Secretaries.
• Preside over Cabinet meetings.
• Shall assent bills into law or refer them back
to parliament for further review.
• Shall nominate, and after approval of
Parliament, appoint a Chief Justice (The
President
will however need to consult with the PM on
this appointment during the Transitional
period).
• Shall nominate, and after approval of
Parliament, appoint an Attorney General
• Shall nominate, and after approval of
Parliament, appoint Director of Public
prosecutions.
• Shall appoint Judges to the Superior Court
recommended to him/her by an independent
Judiciary Service Commission.
• Shall appoint Ambassadors/High
Commissioners to Kenyan embassies abroad.
THE LEGISLATURE
The Legislative branch will constitute of the
following
• An upper house - the Senate
• Each of the 47 counties will have a Senator
• A senator will be elected by the voters.
• Tentative total number of Senators will be 60.
• A lower house - the National Assembly
• Each constituency (290) - currently there are
210.
• Majority of the Members of National Assembly
will be directly elected by voters
• Each county assembly will elect a woman MP
- therefore guaranteeing a minimum of 47
women MPs in the National Assembly.
• Tentative total number of MPs will be 347.
28
County Assemblies and Executive
• The country will be divided to approximately
47 counties - the counties are comparable
to the current districts.
• Each county will have a County Executive
headed by a county governor elected directly
by the people and;
• A county assembly elected with
representatives from wards within the county.
JUDICIARY
There will be three superior courts:
Supreme Court
• Highest judiciary organ consisting of the
Chief Justice, the Deputy Chief Justice and five
other judges.
• This court will handle appeals from the Court
of Appeal and Constitutional courts. It will
also preside over Presidential impeachment
proceedings.
Court of Appeals
• Will handle appeal cases from the High Court
and as prescribed by Parliament. It will
constitute not less than 12 judges and will be
headed by a President appointed by the
Chief Justice.
Judiciary Service Commission
• Will be set up to handle the appointment of
judges. They will recommend a list of
persons to be appointed as judges by the
President. The commission will consist of the
following:
• A Supreme Court judge - elected by members
of the Supreme Court to chair the
commission
• Court of Appeal judge - elected by members of
the Court of Appeals to chair the
commission
• The Attorney-General
• Two advocates, one a woman and one a man,
each of whom has at least fifteen years'
experience, nominated by the statutory body
responsible for the professional regulation of
advocates
• One person nominated by the Public Service
Commission.
• Attorney-General
• Shall be appointed by the President - with
approval from the National Assembly
29
• Hold office for only one term of not more than
6 years.
DEVOLUTION
Devolution to the county governments will only
be autonomous in implementation of distinct
functions as listed in the Fourth Schedule (Part
2). This is in contrast with the Federal System
in
which Sovereignty is constitutionally divided
between the Federal government and the
States.
The Kenyan Devolution system still maintains a
Unitary Political Concept as a result of
distribution of functions between the two levels
of government under the Fourth schedule and
also as result of Article 192 which gives the
president the power to suspend a county
government
under certain conditions.
A conflict of laws between the two levels of
government is dealt with under Article 191
where
National legislation will in some cases override
County legislation. The relationship between
the
National Government and the Counties can be
seen as that of a Principal and a limited
autonomy
Agent as opposed to an Agent and Agent
relation in the Federal System. More checks
and
balances have been introduced as
requirements for accountability of both levels of
government.
The Parliament (Senate and National Assembly)
has much discretion on the budgetary
allocations to the County Governments. Every
Five years the Senate receives
recommendations
from the Commission of Revenue Allocation
(Article 217) and a resolution is passed on the
criteria for Revenue allocation.
The National Government is constitutionally
barred from intruding with the county
government
roles under the Fourth Schedule unless in
certain cases which may require parliament’s
approval.
Article 191 and 192. The National Government
has a role to play in the County level by
performing all the other functions that are not
assigned to the County Government as listed
on
the Fourth Schedule (Part 1).
CITIZENSHIP
The new constitution makes important reforms
to the previous framework on citizenship, in
particular by ending gender discrimination in
relation to the right of a woman to pass
citizenship
to her children or spouse; by ending the
prohibition on dual citizenship; and by
restricting the
grounds on which citizenship may be taken
away. The text has been criticised, however, for
not
providing sufficient protections against
statelessness for children or adults.
• A person is a citizen by birth if on the day of
the person’s birth, whether or not the person
is born in Kenya, either the mother or father of
the person is a citizen (Art 14(1)).
• A person who has been married to a citizen
for a period of at least seven years is entitled
on application to be registered as a citizen (Art
15(1)).
30
• A person who has been lawfully resident in
Kenya for a continuous period of at least
seven years, and who satisfies the conditions
prescribed by an Act of Parliament, may
apply to be registered as a citizen (Art 15(2)).
• A person who is a citizen does not lose
citizenship by reason only of acquiring the
citizenship of another country (Art 16) and
persons who are citizens of other countries
may acquire Kenyan citizenship (Art 15(4)).
• A person who as a result of acquiring the
citizenship of another country ceased to be a
Kenyan citizen is entitled, on application, to
regain Kenyan citizenship (Art 14(5)).
LEGISLATION / STATUTE LAW
Statute law is a body of written laws drawn up
by a legislative body. The individual laws are
called statutes or Acts of Parliament. In Kenya
parliament is the supreme law-making body. It
can make any law it likes, it can cancel any law
it dislikes etc. so long as an Act of parliament
has passed through the accepted processes
and has become law a Kenyan Court must
interpret
and apply the law as it stands.
Stages in Legislation.
Section 109 of the 2010 constitution provides
that the legislative power of parliament shall be
exercised by Bills passed by Parliament. A Bill
is a draft document (proposed legislation
presented to parliament outlining policy on
some particular matter of interest.
(i) The First Reading
It is a formality. The name of the Bill is read to
draw it to the attention of members and
the bill is them printed and published, copies
being sent to all interested parties.
Reference of the Bills to departmental
Committees
This requirement was introduced in 1997. All
bills stand committed to the relevant
Departmental committees for a period of 7 days
after first reading. This requirement
does not apply to Consolidated Fund,
Appropriation, Supplementary Appropriation
and
Constitution (amendment) Bills.
(ii) The Second Reading
This is a debate on the principle of the Bill
rather than the detail. The minister or the
member responsible for the bill outlines its
purpose, the policy on the matter concerned
and the proposals for putting the policy into
effect. A full debate is allowed and the
31
house finally votes upon the Bill. If the Bill
passes the second reading it moves on to
detailed discussion in the committee stage.
(iii)The Committee stage
It is in the Committee stage that the real work
of parliament is done. Most Bills are
considered by a relatively small committee, but
major legislation is dealt with by a
committee of the whole House. A select
committee is one which reflects the party
system with some care taken to ensure that
members with a special interest in a particular
Bill are present. A standing committee is one
which consists of members with a wide
knowledge of public affairs, and vets Bills not
dealt with by a select committee.
By the end of the committee stage the Bill has
approached its final form, and is a more
polished document than before. There is a
procedure called the ‘guillotine’ procedure
which may be used by a government which
wishes to force a Bill through the committee
stage against the delaying tactics of an
opposition party. The procedure cuts off debate
at
a certain time when large sections of a Bill may
still be in their original form.
(iv) The Report Stage
This stage is parliament’s last real chance to
amend the Bill. The chairman of the
committee reports back to the whole house on
the amendments made in committee and a
further opportunity for amending the Bill is
given.
(v) The Third Reading
This is a final review of the Bill with a very
limited opportunity to amend the bill
verbally. It is not an opportunity for members
to air their views on the principle of the
Bill.
(vi) Presidential Assent
After the passage of a Bill the speakers of the
respective houses of Parliament shall
refer the passed Bill to the President for assent
within 7 days (Section 113(3).
Section 115. (1) Within fourteen days after
receipt of a Bill, the President
shall—
(a) assent to the Bill; or
(b) refer the Bill back to Parliament for
reconsideration by Parliament, noting any
reservations that the President has concerning
the Bill.
32
(2) If the President refers a Bill back for
reconsideration, Parliament may, following the
appropriate procedures under this Part—
(a) amend the Bill in light of the President’s
reservations; or
(b) pass the Bill a second time without
amendment.
(3) If Parliament amends the Bill fully
accommodating the President’s reservations,
the
appropriate Speaker shall re-submit it to the
President for assent.
(4) Parliament, after considering the President’s
reservations, may pass the Bill a second
time, without amendment, or with amendments
that do not fully accommodate the
President’s reservations, by a vote supported—
(a) by two-thirds of members of the National
Assembly; and
(b) two-thirds of the delegations in the Senate,
if it is a Bill that requires the approval of
the Senate.
(5) If Parliament has passed a Bill under clause
(4)—
(a) the appropriate Speaker shall within seven
days re-submit it to the President; and
(b) the President shall within seven days assent
to the Bill.
(6) If the President does not assent to a Bill or
refer it back within the period prescribed in
clause (1), or assent to it under (5) (b), the Bill
shall be taken to have been assented to on
the expiry of that period.
116. (1) A Bill passed by Parliament and
assented to by the President shall be published
in the Gazette as an Act of Parliament within
seven days after assent.
(2) Subject to clause (3), an Act of Parliament
comes into force on the fourteenth day
after its publication in the Gazette, unless the
Act stipulates a different date on or time at
which it will come into force.
(3) An Act of Parliament that confers a direct
pecuniary interest on members of
Parliament shall not come into force until after
the next general election of members of
Parliament.
(4) Clause (3) does not apply to an interest that
members of Parliament have as members
of the public
33
SUBSIDIARY/DELEGATED LEGISLATION
Section 2 of the Interpretation and General
Provisions Act defines subsidiary legislation as
‘any
legislative provision (including a transfer or
delegation of powers or duties’ made in exercise
of
any power in that behalf conferred by any
written law by way of by-law, notice, order,
proclamation, regulation, rule of court or other
instrument’. They by-laws, notices, orders,
regulations, rules and other ‘instruments’
constitute the body of the laws known as
subsidiary
legislation.
Although Section 94 of the Constitution
provides that ‘the legislative authority of the
Republic
(of Kenya) is derived from the people, and at the
national level, is vested in and exercised by
Parliament’, it is not possible for Parliament
itself to enact all the laws that are required to
rum
all the affairs of this country. Many acts of
parliament require much detailed work to
implement
and operate them. In such a case the Act is
drafted so as to provide a broad framework
which
will be filled in later by subsidiary legislation
made by government Ministers or other
persons
under powers conferred on them by the Act.
Advantages
Some of the advantages of delegated legislation
are:-
1. Compensation of lost Parliament time
Parliamentarians are politicians who have to
spend much of their time in their
constituencies in order to initiative various
harambee projects, explain relevant party or
government programmes to the people and
listen to the problems of their electors. The
time so spent constitutes a significant
reduction of the time required by parliament for
legislation and this reduction can only be
compensated for by delegating some of
Parliament’s legislative powers.
2. Speed
Sometimes an urgent law may be needed.
Parliament may not respond to this need, first,
because of the slow and elaborate nature of
parliamentary legislative procedure and
second, because it is not in session at the
material time.
3. Technicality of subject matter
Parliamentarians are not experts on all matters
that may require legislation. It may
therefore be advisable if not inevitable, for
Parliament at times to delegate the enactment
34
of laws of a technical nature to Government
ministers who will be assisted by the
technical officers in government Ministries and
the Attorney general’s chambers.
4. Flexibility
The procedure adopted by Ministers to enact
laws is flexible and, as stated above,
responsive to urgent needs. The flexibility is a
consequence of the fact that they are not
governed by the elaborate standing orders that
are an essential feature of parliamentary
legislative procedure. A Minister is free to
discuss with his officers, and adopt, the
procedure that appears most appropriate in the
circumstances.
Disadvantages
Subsidiary or delegated legislation has been
criticized for a variety of reasons, the main
ones
being that it is:
1. Despotic
The real or ultimate makers or subsidiary
legislation are the technical officers in the
various government ministries. These officers
have not been elected by the people
affected by the laws they make and cannot
therefore be made accountable for any
undesirable law that they make. To that extent,
delegated legislation lacks the democratic
spirit that usually inspires, and manifests itself
in, parliamentary legislation. The people
of Kenya can always refuse to re-elect
parliamentarians who enacted a law that they
fee
should not have been enacted but they cannot
dismiss the civil servants. Lord Hewart has
called this situation “the new despotism.”
2. Uncontrollable
Although Parliament is theoretically supposed
to control subsidiary legislation this is not
so in practice. The various rules or regulations
made by government ministries are so
numerous that parliament cannot check
whether their makers conformed to its
intentions
or objectives all the time. The question that
usually comes to the mind is that, if
Parliament is too busy to make the law, how
can it have the time to scrutinize it?
Judicial control
The court can declare any law made as
subsidiary legislation to be invalid under the
ultra vires
doctrine. The law may be declared either
substantively or procedurally ultra vires.
35
(a) Substantive Ultra Vires
A law may be declared substantively ultra
vires if the maker has no powers to make it.
This may occur in a number of ways. For
example, the Minister or authority may have:
(i) Exceeded the powers given by the Act;
(ii) Exercised the power for another purpose
rather than the particular purpose for
which it was given, or
(iii) Acted unreasonably, in the sense explained
by Greene, M. R. in Associated
Provincial Picture Houses v Wednesbury
Corporation [1947] 1 KB 223
This is an English law case which set down the
standard of unreasonableness of public body
decisions which render them liable to be
quashed on judicial review. This special sense
is
accordingly known as Wednesbury
unreasonableness.
The court stated three conditions on which it
would intervene to correct a bad administrative
decision, including on grounds of its
unreasonableness in the special sense later
articulated in
Council of Civil Service Unions v Minister
for the Civil Service [1985] AC 374 by Lord
Diplock:
“ So outrageous in its defiance of logic or
accepted moral standards that no sensible
person
who had applied his mind to the question to be
decided could have arrived at it. ”
Facts
"Associated Provincial Picture Houses" were
granted a licence by the defendant local
authority
to operate a cinema on condition that no
children under 15 were admitted to the cinema
on
Sundays. The claimants sought a declaration
that such a condition was unacceptable, and
outside
the power of the Wednesbury Corporation to
impose.
Judgement
The court held that it could not intervene to
overturn the decision of the defendant
corporation
simply because the court disagreed with it. To
have the right to intervene, the court would
have
to form the conclusion that:
• the corporation, in making that decision, took
into account factors that ought not to have
been taken into account, or
• the corporation failed to take into account
factors that ought to have been taken into
account, or
• the decision was so unreasonable that no
reasonable authority would ever consider
imposing it.
36
The court held that the condition did not fall
into any of these categories. Therefore, the
claim
failed and the decision of the Wednesbury
Corporation was upheld.
(b) Procedural Ultra Vires
A law will be declared procedurally ultra vires if
the mandatory procedures prescribed in
the enabling Act for its enactment are not
followed, such as failure to publish it in the
Gazette. An example is the case of Mwangi v
R., in which Mwangi and another person
were prosecuted and convicted in the Special
Magistrate’s Court, Nairobi, for charging
one shilling instead of fifty cents for a haircut,
contrary to Price Controller’s Order No.
20 of 1948 which had been made pursuant to
Regulation 11 (1) of the Defence (Control
of Prices) Regulations, 1945.
On appeal, the convictions were set aside when
the court’s attention was drawn to the fact
that the Order had not been published in the
Gazette as should have been done. The order
was therefore void and nobody could be
charged for allegedly violating its provisions.
Types of Subsidiary Legislation
The definition of subsidiary legislation in S.2 of
the Interpretation and General Provisions Act
reflects the great variety of nomenclature used
by lawyers in relation to delegated legislation.
However, the following are the two major
groups into which they fall:
(i) By-laws
By-laws are usually made by Local Authorites,
such as the Mombasa Municipal Council,
under the Local Government regulations Act,
1963. Another example is the by-laws
made by the members of co-operative societies
under Rule 7 of the Cooperative Societies
Rules 1969.
(ii) Rules
Rules are usually made by Government
Ministers with the assistance of technical
officers
employed by their Ministries. An example is the
Cooperative Societies Rules, 1969
which were made by the Minister for Co-
operative Development under powers conferred
on him by S. 84 of the Co-operative Societies
Act, 1966.
Rules made by Government Ministers may also
be called Regulations, Orders, Notices or
Proclamations.
37
STATUTORY INTERPRETATION
Statutes have difficult passages in them with
certain words having wide meanings. The
burden
on such occasions has been on courts to decide
on such difficulties and determine what
construction to place upon the wording. The
word ‘construction’ is derived from the word
‘construe’ i.e. the art of combining words
grammatically to give a clear meaning. The
main
principle in statutory interpretation is that it is
the duty of the court to arrive at the true
intention
of the legislators, so far as that is possible from
the actual wording of the statute. Courts are to
interpret and apply the law.
There are certain rules of those courts rely
upon in the process of giving meaning to any
statues.
These includes:-
(i) The ‘literal’ rule
It states that words of an Act of Parliament
have their ordinary, literal meaning in their
normal, grammatical sense. If this
interpretation of the word does not give rise to
any
absurdity, ambiguity or inconsistency then it
says what parliament intend and the courts
will not adopt or accept arguments in favour of
some more refined interpretation.
(ii) The ‘Golden’ Rule
The rule is to the effect that parliament never
intends to enact a manifest absurdity, and if
words used amount to an absurdity, or an
interpretation that is at odds with the intention
of the statute, then the courts will modify the
wording just enough to get round the
difficulty, but not further.
In Re Sigsworth, the common law rule that a
person cannot benefit from the estate of a
person he / she has murdered was used to
overrule the Administration of Estates act
1925.
This Act said that the estate should be divided
among the dead persons issue and the
murderer was his only child. It was held that is
would be a manifest absurdity to follow
the statute.
38
(iii)The ‘Mischief’ Rule
It is also known as the rule in Heydon’s case.
The rule was laid down in 1584 and call
on judges to discover the following:-
(a) What was the common law before the Act
was passed?
(b) What was the mischief in the common law
which the Act was passed to solve
(c) What remedy had parliament resolved upon
to cure the mischief?
(d) What is the true remedy? If the wording
complained of is defective then the court
must interpret the wording so as to defeat the
mischief and advance the remedy.
In deciding these four points the following rules
apply:-
(a) Look at the whole enactment because courts
must interpret what the intention of
parliament was when it passed the Act.
(b) Consult the preamble of the Act to discover
if parliament’s intention is entitled.
(c) Marginal notes appear in many Acts to give
gist of a section.
(iv) The ‘Ejusdem Generis’ rule
Ejusdem Generis means ‘of the same class or
genus’. It is to the effect that if a word
used as a general word and a dispute arises as
to whether this general word includes a
particular class, the decision must depend on
whether the word in dispute is of the same
class clearly covered by the Act. In Evans Vs v
Cross, it was held that the word ‘devise’
used in the context of signals, warning
signposts, direction posts, signs and other
devices
did not include a white line painted on the
road.
(v) The ‘Express Word’ Rule
The rule is to the effect that where parliament
uses an express word the Act only applies
to the express item, but where it uses a general
word the courts will construe the meaning
in a wider sense
(vi) The ‘Noscitur a Sociis’ Rule
It says that the meaning of a word may be
known by the company it keeps, in other words
the context in which it is used. If parliament
uses the word ‘nuts’ we shall find from the
context whether it is an engineering term, a
biological term or a slang reference to
insanity.
39
Besides these rules of interpretation, there are
internal and external aids to interpretation.
The former include:-
(a) Marginal notes
(b) Interpretation section in the Act
(c) Preamble
(d) The title
The latter include
(a) Interpretations contained in the
Interpretation and General Provisions Act
(b) Memorandum accompanying the Bill
(c) Reports of committees.
(d) Books, dictionaries and other written
materials.
There are also other minor rules or
presumptions that courts apply. They include:-
(a) Legislation is not deemed to be retrospective
unless the Act specifically states so;
(b) No change in the law is presumed beyond
that expressly stated in the legislation;
(c) The Government is not bound unless the Act
specifically makes it so;
(d) Any change in law affecting the rights and
freedoms of individuals must be expressly and
specifically stated;
(e) Any liability for a criminal offence must be
on the basis of fault, unless the statute clearly
intended otherwise.
(f) If the provisions of two Acts conflict, the
court will try to reconcile them. If this is not
possible the courts will give effect to the most
recent Acts of the two.
40
STATUTES OF GENERAL APPLICATION IN
FORCE IN ENGLAND ON 12TH
AUGUST 1897
These laws are applicable only if:
(a) They do not conflict either with the
constitution or any of the other written laws
applicable in Kenya, and
(b) The circumstances of Kenya and its
inhabitants permit. In I v. I the High Court
held that
the English Married Women’s Property Act
1882 was applicable in Kenya because, in the
court’s view, the circumstances of Kenya and
its inhabitants do not generally require that
a woman should not be able to own property.
A statute of general application which was in
force in England on 12th August, 1897 but
has been repealed by an English statute
enacted after the date presumably remains a
prima facie source of Kenya Law unless the
repealing statute has been specifically
incorporated into Kenya Law. An example is the
Infants Relief Act 1874 which was
repealed by the Minors’ Contract Act 1987
which has not been made applicable to
Kenya.
UNWRITTEN SOURCES
(i) Common law
Common law may be described as the branch
of the law of England which was developed
by the English courts on the basis of the
ancient customs of the English people.
Osborn’s
law dictionary defines the common law as “that
branch of the law of England formulated,
developed and administered by the old common
law courts on the basis of the common
custom of the country”.
(ii) Equity
The word “equity” ordinarily means “fairness”
or “justice”. As a source of Kenya law,
the phrase “doctrines of equity” means the
body of English law that was developed by the
various Lord Chancellors in the Court of
Chancery to supplement the rules and
procedure
of the common law. The Lord Chancellors
developed equity mainly according to the
effect produced on their own individual
conscience by the facts of the particular case
before them.
Equity was developed as a result of the defects
of the common law. NB: these two
sources apply only if the circumstance of Kenya
and its inhabitants permit.
41
(iii)African Customary Law
African customary law may be described as the
law based on the customs of the ethnic
groups which constitute Kenya’s indigenous
population. Section 3 (2) of the Judicature
Act 1967 provides that the High Court, the
court of Appeal and all subordinate courts
shall be guided by African customary law in
civil cases in which one or more of the
parties is subject to it or affected by it, so far as
it is applicable and is not repugnant to
justice and morality or inconsistent with any
written law.
These provisions of the Judicature Act may be
explained as follows:-
(a) The courts are to be ‘guided’ by African
customary law. This provision gives a judge
discretion whether to allow a particular rule of
customary law to operate or not. The
judges is not bound by any rule of customary
law and may therefore refuse to apply it
if, for example, he feels that it is repugnant to
justice or morality.
(b) Customary law is applicable only in civil
cases. The Magistrate’s Court’s Act
restricts the civil cases to which African
Customary Law may be applied to claims
involving any of the following matter only:
(i) Land held under customary tenure
(ii) Marriage, divorce, maintenance or dowry
(iii)Seduction or pregnancy of an unmarried
woman or girl.
(iv) Enactment of, or adultery with a married
woman
(v) Matters affecting status, particularly the
status of women, widows and children,
including guardian-ship, custody, adoption and
legitimacy.
(vi) Intestate succession and administration of
intestate estates, so far as it is not
governed by any written law.
In KAMANZA CHIWAYA vs. TSUMA
(unreported High Court Civil Appeal No. 6 of
1970)
the High Court held that the above list of
claims under customary law was exhaustive
and
excludes claims in tort or contract.
(c) One of the parties must be subject to it or
affected by it. If the plaintiff and the
defendant belong to the same ethnic group, the
may be said to be ‘subject’ to the
customs of the ethnic group which could then
be applied to settle the dispute. For
example, a dispute between Kikuyus relating to
any of the matters listed in (b) above
cannot be settled under Kamba, Luo or any
other customary law except Kikuyu
customary law.
42
However, if there is a dispute involving parties
from different ethnic groups it may be
determined according to the customs of either
party, since the other party would be
‘affected’ by the custom.
(d) The customary law will be applied only if it
is not repugnant to justice and morality.
Although the Act uses the phrase ‘ and’ and
relation to ‘justice and morality’, it
appears that ‘or’, rather than ‘and’ was
intended.
In Maria Gisege Angoi Vs. Macella Nyomenda
(see Civil Appeal No. 1 of 1981
being the judgment of Aganyanya J. delivered
at Kisii on 24-5-1982) the High Court
held that Kisii customary law which allows a
widow who has no children or who only
has female children to enter into an
arrangement with a girl’s parents and take the
girl
to be her wife and them to choose a man from
amongst her late husband’s clan who
will be fathering children for her (i.e. the
widow), was repugnant to justice because it
denied the alleged wife the opportunity of freely
choosing her partner.
The Court refused to follow the custom and
declared that there had been no marriage
between the appellant and the respondent. A
rule of customary law that might be
declared to be repugnant to morality is the
Maasai custom that a husband returning
home and finding an age-mate’s spear stuck at
the entrance to his hut, as a means of
informing him that the owner of the spear is at
the moment having an affair with his
wife and he should not interrupt. The husband
cannot take divorce proceedings under
Masai customs against his wife for adultery. In
the event of such a declaration, a
Masai man would be able to petition the court
for divorce on the ground of the wife’s
adultery at common law.
(iv) Islamic Law
Islamic law is the law based on the Holy Koran
and the teachings of the Prophet
Mohammed as explained in his sayings called
“Hadith.” Islamic law is applicable in
Kenya under section 5 of the Kadhi’s Courts
Act when it is necessary to determine
questions of Muslim Law relating to personal
status, marriage, divorce or inheritance in
proceedings in which all the parties profess the
Muslim religion.
43
(v) Hindu Customary rites
Hindu customary rites are applicable under S.5
of the Hindu Marriage and Divorce Act,
S. 2 of the Acts defines a “custom” as “a rule
which, having been continuously observed
for a long time, has attained the force of law
among a community, group or family, being
a rule that is certain and not unreasonable, or
opposed to public policy; and, in the case of
rule applicable only to a family, has not been
discontinued by the family.” Hindu
customary rites are a source of Kenya law only
for purpose of solemnizing Hindu
marriages
THE LEGAL PYRAMID
The sources of Kenya law mentioned above may
be summarized with the aid of the following
diagram or “legal pyramid”.
The Constitution
All Other Written Laws
Statutes of General Application in England as
at 12 – 08 -1897
African Customary Law Common Law Equity
Islamic Law Hindu Law
CONCLUSION
A critical appreciation of section 3 of the
Judicature Act will reveal that what is termed
Kenyan
law is not necessarily what has been nurtured
in Kenya. Is it time for the development of
Kenyan Common Law?
REVISION EXERCISE 3
1. Outline the steps followed in parliament
before a bill becomes law.
2. How do courts control subsidiary legislation?
3. Examine the unwritten sources of Kenyan
law
4. Under what circumstances do courts apply
African customary law, Islamic law and
Hindu Customary Law?
44
CHAPTER 4
THE JUDICIARY
COURTS’ STRUCTURE
The structure of the court in Kenya has been
established according to the constitution of
Kenya
the judicature Act, CAP 8), the Magistrates
Courts Act (CAP. 10) and the Kadhi’s Courts
Act
(CAP. 11).
Under the repealed constitution, the court
structure was as follows.
COURT OF APPEAL
(a) Until 27th October, 1977 the court of
Appeal for East Africa was the final appellate
court
in Kenya, Uganda and Tanzania.
(b) The demise of the E.A.C. in 1977 was also
the demise for the court of Appeal of East
Africa.
(c) This court had only appellate jurisdiction. It
heard appeals in civil and criminal matters
from all court in East Africa.
(d) The court had power to:
• Uphold the decision of the lower court
• Reverse the decision
• Substitute the judgment with another.
• Order a new trial.
Establishment of the Supreme Court
The Supreme Court is established under article
163 of the Kenya Constitution 2010. This
section
provides that the Supreme Court shall consist
of:
(a) the Chief Justice who shall be the president
of the court;
(b) the Deputy Chief Justice , who shall-
(i)deputise the chief justice; and
(ii)be the vice-president of the court; and
(c) five other judges.
45
Jurisdiction of the Supreme court
(a) exclusive original jurisdiction to hear and
determine disputes relating to the elections to
the office of president;
(b) where appropriate, appellate jurisdiction to
hear and determine appeals from-
(i) the Court of Appeal; and
(ii) any other court or tribunal as prescribed by
national legislation
Establishment of the Kenya Court of Appeal
It was established on October 28, 1977 after
the Constitution of Kenya Amendment Act
(1977).
article 164(1) of the Constitution 2010 states
that “There is established the Court of Appeal,
which-
(a) shall consist of the number of judges, being
not fewer than twelve, as may be prescribed
by an Act of Parliament … ”
Jurisdiction of the Court of Appeal
To hear and determine appeals from-
(a) The High Court; and
(b) Any other court or tribunal as prescribed by
national legislation.
Comparison with the repealed Constitution
Section 64(2) of the repealed constitution
stated that; “The judges of the court of Appeal
shall be
the chief justice and such number not being
less than two, other judges (herein referred to
as
judges of Appeal) as may be prescribed by
parliament.”
Three of the judges normally sit to hear an
appeal.
Jurisdiction
(a) The court of Appeal of Keya has only
appellate jurisdiction. It has no inherent
jurisdiction.
(b) The Appellate Jurisdiction Act (CAP.9)
empowers the court to hear and determine an
appeal from the high court in cases in which an
appeal lies to the court of Appeal under
any law (sec. 3(1).
(c) The CPC (CAP.75) provides that if the high
court has heard a criminal case on appeal
form a lower court, a further appeal can be
made to the Court of Appeal by either the
A.G. or the defendants on a matter of law only.
The court cannot hear an appeal on
46
matters of fact or against sentence, except
where a sentence has been enhanced by the
High Court unless the subordinate court
exceeded its sentencing powers.
(d) The Civil Procedure Act (Sec. 66) provides
that in civil cases, the appeal can be made to
the court of appeal on the following grounds
(S.72):-
• The decision being contrary to law or to some
usage having the force of law.
• The decision having failed to determine some
material issue of law or usage
having the force of law;
• A substantial error or defect in the procedure
provided by this act or by any other
law for the time being in force, which may
possibly have produced error or defect
in the decision of the case upon the merits.
•
The judicature Act (CAP. 8), section 4(4)
provides that an appeal shall lie from any
judgment,
order or decision of the high Court in the
exercise of admiralty jurisdiction.
If the High Court has tried a criminal case, any
person convicted and sentenced to death or
more
than 12 months imprisonment, or to a fine over
shs. 2,000/= may appeal against the conviction
on grounds of law or fact.
Where the High court has served as the trial
court and sentenced a person to less than
twelve
months imprisonment or to a fine of between
shs. 200/= and sh. 2,000/= the convicted
person
may appeal against the conviction to the court
of appeal upon the certificate of the trial judge.
No appeal against the sentence is possible.
If a fine of less than shs. 200/= or punishment
has been imposed by the High Court, an appeal
is
possible only where the court of Appeal or the
trial judge is of the opinion that the case
involves
a question of law of great general or public
importance (CPC Sec. 379 (2).
Where a person has been acquitted in a trial by
the High Court and the Attorney General feels
that the case involves a point of law of
exceptional public importance and that it is
desirable in
the public interest that the point should be
determined by the court of appeal; he can ask
the
Court of Appeal to review the case. The court
will issue a declaratory judgment on the point
of
law involved, which will be binding on all
courts subordinate to the court of Appeal.
47
Appeals are heard with three of the judges of
Appeal present and decision is by majority.
Every Appeal is brought by way of petition for
the reversal, variation, or alteration of the order
of judgment appealed against. The court may:-
(a) Uphold or reverse the decision of the lower
court.
(b) Substitute another judgment
(c) Order a new trial (but it cannot commence a
new trial itself because it has no original
jurisdiction.
The court of Appeal has no jurisdiction to hear
appeals in the following cases:-
(a) Election petitions
(b) Court martial cases
(c) Enforcement of fundamental rights and
freedoms and constitutional references
(d) In criminal proceedings from a conviction on
plea of guilty except as to the extent or
legality of the sentence (CPC sec. 379(3).
(e) In civil proceedings, there is no appeal in the
case of consent decrees or a second appeal
when the value of the subject matter of the
original suit does not exceed shs. 1,000/=,
unless special leave has been granted by the
court of appeal.
(f) In respect of a special finding under section
166 of the Penal Code to the effect that a
person was guilty of the act or omission
charged, but was insane. A special finding is an
acquittal not a conviction.
It should be noted that the promulgation of the
Constitution 2010 has necessitated the
amendment of various Acts of Parliament in so
far as questions of composition and the
jurisdiction of the Court of Appeal is
concerned. It is also important to notice that all
references
to the AG above shall now change to mean the
Director of Public Prosecutions as the
Constitution 2010 now vests prosecutorial
powers in the DPP.
48
HIGH COURT
Article 165(1) of the Constitution 2010
provides:-
“There is established the High Court, which-
(a) shall consist of the number of judges
prescribed by an Act of parliament; and
(b) shall be organized and administered in the
manner prescribed by an Act of Parliament.
Jurisdiction of the High Court
(a) unlimited original jurisdiction in civil and
criminal matters;
(b) jurisdiction to determine the question
whether a right or fundamental freedom in the
Bill
of Rights has been denied, violated, infringed or
threatened;
(c) jurisdiction to hear an appeal from a
decision of a tribunal appointed under the
Constitution to consider the removal of a
person from office;
(d) any question respecting the interpretation of
the Constitution; and
(e) any other jurisdiction and powers as may be
conferred on it by this constitution or by
legislation.
Jurisdiction
According to Article 60 of the constitution, the
High Court has unlimited original jurisdiction
in
civil and criminal cases. It has powers to try a
case known to Kenya law and can pass any
sentence authorized by law ranging from life
imprisonment to a mere fine.
The High Court has also appellate jurisdiction.
The appeals in criminal and civil cases are
regulated by the provisions of the Criminal
procedure Code and Civil Procedure Act
respectively.
Appeals to the High Court form convictions in
criminal case may be on matters of law or
matters
of fact. Where a person has been acquitted by a
subordinate court of any offence, or where a
charge has been dismissed, the DPP may
appeal to the High Court against such
acquittal. These
appeals should be only on matters of law. The
High Court may order a re-trial but only in
cases
where the trial was illegal or defective.
Appeals in civil cases lie to the High Court in
any case decided by a subordinate court but
not
where an order was passed with the consent of
all parties.
An appeal to the High Court from an appellate
decision of the Residence Magistrate’s Court is
final.
49
The High Court is normally composed for one
judge, but in civil appeals the chief justice may
direct that the appeal be heard by two or more
judges unless the Chief Justice directs that the
appeal be heard by one judge. When the appeal
is heard by two judges and they disagree, the
appeal is reheard before three judges. (CPC. S.
359).
When a person has been convicted by a court
martial, he may within the leave of the High
Court,
appeal to the High Court against conviction,
the sentence or both. It must be lodged within
forty
days of the order or sentence from the court
martial. The appeal is final (Armed Forces Act
(CAP. 99)
Admiralty Jurisdiction
Section 4 of the Judicature Act (CAP.8)
provides; “The High Court shall be a court of
admiralty,
and shall exercise admiralty jurisdiction in all
matters arising on the high seas, or in
territorial
waters, or upon any lake or other navigable
inland water in Kenya.”
The section further states that the law applied
by the High Court will be the law of England,
but
that it shall be exercised “in conformity with
international laws and the comity of nations.”
Election Petitions other than Presidential
Petitions
The high court also hears election petitions.
The HC has jurisdiction to determine whether;
▪ A person has been validly elected as a
member of the National Assembly;
▪ A person has been validly elected as a
member of the Senate;
▪ The seat in the National Assembly of a
member thereof has become vacant.
(a) Writ of habeas Corpus (‘Produce the
Body’)
The constitution guarantees the personal
liberty of the individual and where he is
arrested
and kept in confinement without legal
justification, he or any other person on his
behalf
may request the High Court to obtain his
release by the issue of the writ of habeas
corpus.
The High Court will issue such a writ directing
the person who in detaining him, to
release or have the body of such a person
produced before the court.
50
(b) Certiorari (‘informed’)
It is an order issued to an inferior court or body
exercising judicial or quasi-judicial
functions
to have the record of the proceedings presented
to the High Court for the following
purposes:-
▪ Secure an impartial trial
▪ Review an excess of jurisdiction
▪ Challenge an ultra-vires Act
▪ Correct errors of law on the face of record
▪ Quash a judicial decision and against the
rules of natural justice.
(c) Prohibition
An order of prohibition is issued by the High
Court to prevent an inferior court or tribunal
from hearing or continuing to hear a case
either in excess of its jurisdiction or where the
rules of natural justice are violated. It is of no
use where a final decision has already
been given.
(d) Mandamus (“we command”)
It is issued to any person or body (not
necessarily an inferior court) commanding him
or
them to carry out public duty imposed by law.
It is available to compel an administrative
tribunal to hear an appeal, or to force a local
authority to produce its accounts for
inspection by the rate-payers.
Summing up on the High Court, it is important
to point out that the High Court must try
cases of murder, treason and misprision or
treason. Other serious offences are nowadays
triable by a Chief Magistrate, Senior Principal
Magistrate, Principal Magistrate or Senior
Resident Magistrate.
The High Court can also grant leave to an
appeal out of time with sufficient reasons.
Conversely, it has power to summarily reject an
appeal, but the appellant or his advocate
must have an opportunity of being heard in
support of the appeal. This power is rarely
exercised.
Section 358 of the CPC empowers the High
Court to call for additional evidence when
hearing an appeal in a criminal case. The High
Court can also order a re-trial (CPC
sec.354) where;
▪ The trial is illegal or defective
▪ The accused has not had a satisfactory trial
▪ It is the interest of justice and no injustice is
likely to be caused to the appellant.
51
SUBORDINATE COURTS
(a) RESIDENT MAGISTRATES’ COURT
Composition
It is established by section 3(1) of the
Magistrates Court Act which provides that:-
“There is hereby established the Resident
Magistrate Court which shall be a court
subordinate to the High Court and shall be
duly constituted when held by a Chief
magistrate, a Senior Resident Magistrate or a
Resident Magistrate.”
Jurisdiction of the Residents Magistrate’s
courts
The Resident Magistrate’s courts have
jurisdiction throughout the country
(Magistrates
Courts Act S.3 (2). The jurisdiction powers
given to the R.M are:
(i) Criminal Jurisdiction
It is very wide and embraces most crimes (Sec.
7 of the CPC, CAP. 75)
▪ A Chief Magistrate, Senior Principal
Magistrate, Principal Magistrate or
Senior Resident Magistrate may pass any
sentence authorized by law for
any offence triable by the court.
▪ A Resident Magistrate may pass any sentence
authorized by law for any
offence under sections 278, 308 (1) or 322 of
the Penal Code. These
offences are stock theft, preparation to commit
a felony and handling
stolen goods.
Under sec. 8 of the CPC, the judicial service
commission can extend the
jurisdiction of any particular magistrate
(ii) Civil jurisdiction
The civil jurisdiction of Resident Magistrate’s
court is defined in Sec. 5 of the
Magistrates Court Act.
(iii) Jurisdiction in Customary Law
The Resident Magistrates court has and
exercises the same jurisdiction and
powers in proceedings concerning claims under
customary law as conferred on
District Magistrates.
Although certain land disputes are not referred
to panels of elders, the written
record of the panel is filed in the Resident
Magistrates court and the court can
modify it or correct it or even remit a record for
reconsideration by the panel. In
52
cases of corruption and fraud, the court may
enter judgment according to the
decision of the panel of elders.
(iv) Appellate Jurisdiction
The Resident Magistrates court has limited
amount of appellate jurisdiction. (Sec.
11, M.C.A)
KADHI’S COURT
They are established by the Kadhi’s Courts Act
(Section 170 of the Constitution 2010).
Parliament shall determine the number of
Kadhi’s courts. The appointments of chief
Kadhi and Kadhis are made by the Judicial
Service Commission.
As regards the jurisdiction of the Kadhi’s
Courts section 5 of the Kadhis’ Courts Act
states:
“A Kadhis’ court shall have and exercise the
following jurisdiction, namely the
determination of questions of Muslim law
relating to personal status, marriage, divorce or
inheritance in proceedings in which all the
parties profess the Muslim religion, but
nothing in this section shall limit the
jurisdiction of the High Court or of any
subordinate
court in any proceedings which come before it.”
The procedure and practice in the Kadhis’
Courts should be in accordance with those
prescribed for the subordinate courts by and
under the Civil Procedure Act as there are no
rules made under subsection (1) of section 8 of
the Kadhis’ court Act.
Unlike other courts, the rules of evidence as
contained in the Evidence Act do not apply
in a Kadhis’ court. The law and rules of
evidence to be applied in a Kadhis’ Court shall
be those applicable under Muslim law as stated
under section 6 of the Kadhis’ Courts
Act:
(i) That all witnesses shall be heard without
discrimination grounds or religion, sex
or otherwise.
(ii) That each issue of fact shall be decided
upon on assessment of the credibility of
all the evidence before the court and not upon
the number of witnesses who have
given evidence; and
(iii) That no finding, decree or order of the court
shall be reversed or altered on appeal
or revision on account of the application of the
law or rules of evidence applicable
at the High Court, unless such application has
in fact reasoned a failure of justice.
The High Court sitting with the Chief Kadhi or
two other Kadhis as assessor or
assessors has appellate jurisdiction over the
decisions of the Kadhi’s Courts.
53
DISTRICT MAGISTRATES COURTS
They have been established in Kenya on
District level as per section 7(1) of the
Magistrates Courts Act (cap.10)
Section 7(2) goes on to give the chief justice
power to designate any two or more
districts, a joint district for the purposes of the
above Act (as a single judicial district)
Composition
District Magistrates Courts are composed of
District Magistrates who are appointed by
the Judicial Service Commission.
Jurisdiction of the District Magistrates
Courts
District Magistrates share limited powers of
original jurisdiction as conferred to them by
the Magistrate’s court act. Only first class
District Magistrates have some limited
appellate jurisdiction.
Jurisdiction is limited to the District for which
the court is established and their
sentencing powers.
The jurisdiction powers are set out in Part II
and III of the Magistrates’ Courts Act.
Jurisdiction in Customary Law
The Magistrate courts Act gives District
Magistrate Courts unlimited powers to hear
cases in respect of customary law. Section 2
provides that claims under customary law
means a claim concerning any of the following
matters:-
(a) Land held under customary law
(b) Marriages, divorce, maintenance and dowry
(c) Seduction and pregnancy of an unmarried
woman / girl
(d) Enticement of or adultery with a married
woman
(e) Matters affecting status, and in particulars
the status of women, widows and children
includes guardianship, customary, adoption
and legitimacy.
(f) Intestate succession and administration of
intestate estates so far as the same is not
governed by any written law.
54
Following an amendment to the Magistrate
Courts Act in 1981, no magistrate Courts can
exercise jurisdiction and powers in case of a
civil nature involving:-
(a) The beneficial ownership of land
(b) The division of or the determination of
boundaries to land, including land held in
common.
(c) A claim to occupy or work land
(d) Trespass to land.
Such disputes are referred to a panel of elders,
consisting of either two or four elders agreed
upon
by the parties, presided over by a district
officer, or a person appointed by the District
Officer.
Summary of the Judiciary under the 2010
Constitution
The new Constitution 2010 has introduced
changes to the court structure in Kenya as
follows:
Over and above the other courts existent in
Kenya at the time of its creation, the new
Constitution has introduced the Supreme
Court which shall be the Highest Court in
Kenya.
The constitution creates an independent
judiciary consisting of the courts of law and
tribunals.
The Chief Justice is the head of the judiciary,
and is appointed by the President on the
recommendation of the Judicial Service
Commission. This is subject to the approval of
the
National Assembly.
Under the Kenya constitution, the Supreme
Court is the highest court in Kenya. The
Chief
Justice is the President of the Supreme Court.
This court also comprises the Deputy Chief
Justice
and five other judges. The Supreme Court is
the only court that can hear and determine any
case
challenging the election of the President. The
court also attends to appeals from the Court of
Appeal, the High Court and other courts and
tribunals.
The Court of Appeal is the second highest
court in Kenya. It comprises of at least 12
judges
and is headed by a President of the Court of
Appeal. The court only has appellate
jurisdiction
over appeals from the High Court and other
courts and tribunals.
55
The third highest court in Kenya is the High
Court. The High Court has unlimited original
jurisdiction in criminal and civil matters. The
court also has supervisory powers over the
subordinate courts.
The constitution mandates Parliament to
establish special courts to determine disputes
related to
employment and labour relations, land and
environmental matters. These special courts
have
equal status with the High Court. The High
Court does not have any jurisdiction over
matters
handled exclusively by these special courts.
The Magistrates courts, Kadhis' courts and
the Courts Martial are the only subordinate
courts
established in the constitution of Kenya.
Parliament will create legislation on how these
subordinate courts will function. The
constitution empowers parliament to establish
other
subordinate courts and tribunals as necessary.
Kadhis' courts only determine cases related to
personal status, marriage, divorce or
inheritance
for people who profess the Muslim religion and
who voluntarily submit to the jurisdiction
authority of the Kadhis' courts.
56
PEOPLE IN THE JUDICIARY
JUDGES
Under the 2010 Constitution
The Chief Justice and Deputy Chief Justice are
appointed by the President (article 166 of the
constitution) in accordance with the
recommendation of the Judicial Service
Commission, and
subject to the approval of the national
Assembly.
The president also appoints the puisne judges
but in accordance with the advice of the
judicial
service commission.
article 166 of the Constitution provides for the
qualifications required for the appointment of
various persons to the offices of judges for the
Supreme Court, Court of Appeal and the High
Court of Kenya.
Removal / Retirement
Judges retire at the age of Seventy (article 167
of the Constitution). A judge may be removed
from office only upon a finding by a special
tribunal or inability to perform the functions of
office or misbehavior (article. 168).
The office of a judge cannot be abolished when
there is a substantive holder.
Chief Registrar of the Judiciary
He / she is the administrative head of the
judiciary. He / she is assisted by the Deputy
Registrar
of the judiciary and other Registrars as may be
prescribed by Parliament.
Magistrates
They are appointed by the judicial service
commission which can also discipline and fine
them
To be qualified for appointment they must be
advocates of the High Court of Kenya for atleast
3
years or held an equivalent qualification e.g.
state counsel, barrister, or solicitor of the
supreme
court of England and Wales. They must have
had at least two year’s experience in practice.
Assessors
The CPC, Section 262 provides for assessors. It
states that “all trials before the High Court
shall
be with the aid of assessors.”
57
Section 263 provides:-
“When the trial is to be held with the aid of
assessors, the number of assessors shall be3.”
People between the ages of 21 and 60 can be
assessors (sec. 265) except those exempted
under
section 266. They include the President,
Members of Cabinet, Speaker, Legal
Practitioners in
active practice, Priests or Ministers actively
discharging their duties in their respective
religions
and Members of the Police Force.
Assessors are appointed by the court from the
list of those summoned to serve as assessors at
the
sessions (sec. 297).
Assessors give their opinion as to whether the
accused is guilty or not but the judge is not
bound
by any such opinion.
Court Clerks
They are appointed by the public service
commission. They take case, file them, receive
payment, keep files, assist in court proceedings
such as court presentations and as provided
for
under sec. 217 and 218 of the CPC, draw up
conviction order and may certify copies of the
order
of acquittal.
Recorders
Recorders take down court proceedings. Sec.
18 of the Magistrates Courts Act provides:
“Every magistrate’s court shall keep such
records of proceedings and submit such
returns of
proceedings to the High Court as the Chief
Justice may from time to time direct.”
58
THE DOCTRINE OF “STARE DECISIS” OR
JUDICIAL PRECEDENT
The doctrine of “Stare decisis” or “judicial
precedent” is a legal rule that requires a judge
to refer
to earlier cases decided by his predecessors in
order to find out if the material facts of any of
those cases are similar to the material facts of
the case before him and, in the event of such a
finding, to decide the case before him in the
same way as the earlier case had been decided.
In
this way, the earlier decision “stays” or “stands”
as it was made.
The doctrine has been described as the “sacred
principle” of English Law. It was developed by
the English courts as a mechanism for the
administration of justice which would enable
judges to
make decisions in an objective or standard
manner instead of subjectively and in a
personalized
manner.
“Ratio Decidendi”
The “ratio decidendi” of a case consists of the
material facts of the case and the decision
made by
the judge on the basis of those facts. The
material facts become, as it were, the basis or
‘rationale’ (ratio) upon which the judge is to
decide (decidendi) the case. They constitute, in
ordinary parlance, the reason, or ground, of the
judge’s decision and ensure that the decision –
making process is a rational one.
The ratio decidendi of a decided case
constitutes the legal rule, or principle, for the
decision of
future cases with similar material facts. In
other words, the decision is a precedent to be
followed when deciding such cases.
Types of Precedents
A precedent may be:
(a) An authoritative precedent if it is one which
the judge must follow whether he approves
of it or not. It is binding upon him and
excluded his judicial discretion for the future.
These, generally speaking, are decisions of
higher courts.
(b) A persuasive precedent if it is one which the
judge is under the obligation to follow but
may however take into consideration, of follow,
in the course of considering his intended
decision. These generally speaking, are
decisions of lower courts and the decisions of
superior court in the commonwealth.
59
A precedent may also be classified as:-
(i) An original precedent if it is one which
creates and applies a new legal rule; or
(ii) A declaratory precedent if it is one which
does not create a new legal rule but merely
applies an existing legal principle.
The latter classification is a technical one
which does not fall within Hale’s definition of a
“declaratory precedent”. According to Hale, “the
decisions of court of justice (in England)…do
not make a law properly so-called: for that only
the Kind and Parliament can do; yet they have
a
great weight and authority in expounding,
declaring, and publishing what the law is”.
Salmond however contends that “both at law
and in equity, however, the declaratory theory
(as
formulated by Hale) must be totally rejected if
we are to attain to any sound analysis and
explanation of the true operation of judicial
decisions. We must admit openly that
precedents
make law as well as declare it. We must admit
further that this effect is not merely accidental
and indirect, the result of judicial error in the
interpretation and authoritative declaration of
the
law. Doubtless, judges have much time altered
the law while endeavouring in good faith to
declare it. But we must recognize a distinct
law-creating power vested in them and openly
and
lawfully exercised. Original precedents are the
outcome of the intentional exercise by the
courts
of their privilege of developing the law at the
same time that they administer it.”
Obiter Dictum
A “by the way” statement made by a judge
before delivering his judgment with a view to
reenforcing
or strengthening his reasons for the decision
that he will make is known as “the obiter
dictum” of the case. If more than one such
statements are made, they are known as obiter
dicta.
An obiter dictum is defined by Osborne’s
Concise Law dictionary as “an observation by a
judge
on a legal question suggested by a case before
him, but not arising in such a manner as to
require
decision.”
Although an obiter dictum does not constitute
a legal rule for the decision of future cases it
may
constitute a “persuasive precedent” for a
relevant later case. In other words, it may be
used by an
advocate to “persuade” a judge hearing a case
to accept as a legal rule the view it expresses.
Writing on the authority of precedent Salmond
has stated as follows:
“The importance of judicial precedent has
always been a distinguishing characteristic of
English
law. The great body of the common or
unwritten law is almost entirely the product of
decided
case, accumulated in an immense series of
reports extending backwards with scarcely a
break to
the reign of Edward the first a the close of the
thirteenth century. Orthodox legal theory,
indeed,
60
long professed to regard the common law as
customary law, and judicial decisions are
merely
evidence of customs and of the law derived
therefrom. This was never much better than an
admitted fiction. In practice, if not in theory,
the common law of England has been created
by
the decisions of English judges. Neither Roman
law, however, nor any of those modern systems
which are founded upon it, allows such a deree
of authority to precedent. They see no
difference
of kind between precedent and any other
expression of expert legal opinion. A book of
reports
and a text-book are in the same legal category.
They are both evidences of the law; they are
both
instrument for the persuasion of judges; but
neither of them is anything more. English law,
on
the other hand, draws a sharp distinction
between them. A judicial precedent speaks in
English
with authority; it is not merely evidence of the
law but a source of it, and the courts are
bound to
follow the law that is so established. It seems
clear that we must attribute this feature of
English
law to the peculiarly powerful and authoritative
positions which has been at all times occupied
by English judges.
From the earliest times the judges of the King’s
courts have been a small and compact body of
legal experts. They have worked together in
harmony, imposing their own views of law and
justice upon the whole realm and establishing
thereby, a single homogenous system of
common
law. Of this system they were the creators and
authoritative interpreters, and they did their
work
with little interference either from local custom
or from legislation. The centralization and
concentration of the administration of justice in
the royal courts gave to the royal judges a
power
and prestige which would have been
unattainable in any other system. The
authority of
precedents was great in England because of the
power, the skill, and the professional
reputation
of the judges who made them. In England the
bench has always given law to the bar; in Rome
it
was the other way about, for in Rome there was
no permanent body of professional judges
capable of doing the work that has been done
for centuries in England by the royal courts.”
61
Stare Decisis and its Application by the
Kenya Courts
There is so far no case decided by the Kenya
Court of Appeal regarding the application of
“stare
decisis” by Kenya Courts. What we have are
the rules which were formulated in 1970 by the
then Court of Appeal for East African at the
time that it was also the Court of Appeal of
Kenya.
However, it can be assumed that the rules
which the Court of Appeal for East Africa laid
down
for Kenya Courts in Dodhia vs. Grindlays
Bank are still binding on the Kenya Courts
(with the
probable exception of the Kenya Court of
Appeal.
These rules are:
(i) Subordinate courts are bound by the
decisions of superior courts. To understand the
full
implication of this statement you should have
the diagram of the Kenya courts in front of
you.
(ii) A subordinate court of appeal should be
bound by a previous decision of its own.
Subordinate courts of appeal are the High
Court, Resident Magistrate’s Court, Principal
Magistrate’s Court, Senior Principal
Magistrate’s Court, the Chief Magistrate’s
Court and
the First Class District Magistrate’s Court.
These courts are “subordinate” because they
have higher courts above them. However, they
are “courts of appeal” because they have
appeals from the courts below them.
(iii) As a matter of judicial policy, the final court
of appeal, while it would normally regard a
previous decision of its own as binding, should
be free in both civil and criminal cases to
depart from such a previous decision when it
appears right to do so.
Regarding point (i) above, the court did not
clarify whether a subordinate court would be
free to
depart from a decision of a higher court
because it appeared to be in conflict with a
decision of a
still higher court. For example, can a Resident
Magistrate’s court refuse to follow a decision of
the High Court because it appears to be in
conflict with a decision of the Court of Appeal?
However, in Miliangos vs. George Frank
(textiles) Ltd., the House of Lords stated that
‘it is
the duty of a subordinate court to give credence
and effect to the decision of the immediately
higher court, notwithstanding that it may
appear to conflict with a decision of a still
higher court.