Class 1- Intro to Kenyan Law

8/13/2019 Class 1- Intro to Kenyan Law

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BBM 106 Notes compiled by Francis Kaburu

1) Introduction to Kenyan Law

i) Nature and purpose of law

ii) Classification of law

iii) Sources of Law

NATURE AND PURPOSE OF LAW

According to Salmond, law consists of a body of principles recognised and applied by the state in the administration of justice.Law has also been defined as a collection of binding rules of human conduct prescribed by human beings for obedience of human

beings.

The best definition is that law is a set of rules and regulations that guide human conduct.

Purpoe or Function o! Law

i) !ules of law facilitate administration of justice. "t is an instrument used by human beings to achie#e justice.

ii) Law assists in the maintenance of peace and order. Law promotes peaceful co$e%istence, that is, pre#ents anarchy.iii) Law promotes good go#ernance.

i#) Law is a standard setting and control mechanism.

#) &ro#ision of legal remedies,

#) &rotection of rights and duties.

T"PES AND #LASSIFI#ATION OF LAW

!ules of law may be classified as'

(ritten and unwritten

National and "nternational

&ublic and &ri#ate

Substanti#e and &rocedural

Criminal and Ci#il

Written and Unwritten $aw

(ritten law refers to rules of law that ha#e been reduced into a written form and codified into a single document. They are

embodied in a formal document for e%ample The Constitution of enya, laws made by parliament statutes). Such laws pre#ailo#er unwritten Law. *n the other hand, unwritten law are rules of law that ha#e not been reduced into written form, or ha#e been

reduced into writing but not codified+ embodied in any single document e.g. African Customary Law, "slamic Law, indu Law,

Common Law, -uity. Their e%istence must be pro#ed.

Nationa$%&unicipa$ and Internationa$ Law

National +municipal law refers to rules of law operational within the boundaries of a country. "t regulates the relation between

citi/ens and between citi/ens and the state. "t is based on Acts of &arliament, customary and religious practices of the people.

"nternational law on the other hand is a body of rules that regulates relations between countries+states and other internationalpersons eg. 0nited Nations. "t is based on international agreements of treaties and customary practices of states and general

principles.

Pu'$ic and Pri(ate $aw

&ublic law consists of those fields or branches of law in which the state has an interest as the so#ereign eg. criminal law,

constitutional law, administrati#e law. &ublic law is concerned with the constitution and functions of the #arious organs of

go#ernment including local authorities, their relations with each other and with the citi/ens. &ublic law asserts state

so#ereignty+power.

&ri#ate law in the con#erse consists of those fields or branches of law in which the state has no direct interest as the so#ereign eg.

law of contracts, law of tort, law of property, law of succession. "t is concerned with day to day transactions of legal relationships

between persons. "t defines the rights and duties of parties

Su'tanti(e and Procedura$ $aw

Substanti#e law is concerned with the rules themsel#es as opposed to the procedure on how to apply them. "t defines the rights

and duties of parties and pro#ides remedies when those rights are #iolated e.g. law of contract, negligence, defamation. "t defines

offences and prescribes punishment e.g. &enal Code Cap 12.

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&rocedural law on the other hand consists of the steps or guiding principles or rules of practice to be complied with or followed in

the administration of justice or in the application of substanti#e law. "t is also referred to as adjecti#e law e.g. Criminal &rocedure

code Cap 34, ci#il procedure Act Cap 56.

#riina$ and #i(i$ $aw

Criminal law has been defined as the law of crimes. A crime has been defined as an act or omission, committed or omitted in#iolation of public law eg. murder, manslaughter, robbery, burglary, rape, stealing, theft by ser#ant or agent. "ts thus law dealing

with offences against the state. Ci#il law on the other hand is concerned with #iolations of pri#ate rights in their indi#idual orcorporate capacity eg. breach of contract, negligence, defamation, nuisance, passing off trespass to the person or goods. "ts thus

law dealing with offences against indi#iduals.

Soe o! t*e Ditinction +etween t*e two are,

#I-IL #RI&INAL

6 *bjecti#e is remedial i.e. to compensate *bjecti#e is penal i.e. to punish

5 *ffences against indi#iduals *ffences against state

2 Standard of proof on a balance of probability Standard of proof beyond reasonable doubt

7 8urden of proof on plaintiff+claimant 8urden of proof on prosecutor

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&ri#ate indi#iduals are the parties before the court thus

case names show two parties e.g.Francis v Ondiek

The State constitutes itself a party to the suite, thus

case names show state as party e.g. R v John !9

!epublic)1 The indi#idual S0-S The state &!*S-C0T-S

SOUR#ES OF LAW IN KEN"A

A source of law is the origin of the rule, which constitutes a law, or legal principle. The phrase :sources of enya law;

therefore means the origin of the legal rules which constitute the law of enya.

The two principal documents that identify the sources of law in enya are the


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These are laws made by either parliament itself, or another body with delegated powers from parliament. They can generally be

classified into two'

$ Acts of &arliament

$ >elegated legislation

Act o! Par$iaent

&arliament is established by chapter B of the constitution. "ts made up of two houses=$ The National Assembly' This is made up of two hundred and ninety members each elected by the registered #oters of

single member constituencies= forty$se#en women each elected by the registered #oters of the counties, each countyconstituting a single member constituency= twel#e members nominated by parliamentary political parties according to

their proportion of members of the National Assembly, to represent special interests including the youth, persons with

disabilities and wor@ers= and the Spea@er, who is an ex officio member

$ The Senate' "t shall ha#e forty$se#en members each elected by the registered #oters of the counties, each county

constituting a single member constituency= si%teen women members who shall be nominated by political parties

according to their proportion of elected members of the Senate= two members, being one man and one woman,

representing the youth= two members, being one man and one woman, representing persons with disabilities= and the

Spea@er, who shall be an ex officio member0

The procedure for ma@ing law in parliament is=

$ 8ill' This is the proposal containing the proposed law bill). There are two types of bills'o &ri#ate members 8ill' drafted by any member of parliament without connection of the go#ernment. a#e

been famous recently e.g. Se%ual *ffences 8ill by Njo@i Ndungu, C>D 8ill by Euriu@i arue, Alcohol

Control 8ill by


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"t proceeds after proper consideration and through scrutiny and debate in &arliament.

They set out the laws in ad#ance, and it gi#es adeuate time to the courts to be ready for interpretation.

Statutes can pro#ide e%pressly for a number of #arying cases, whereas case law or precedents proceeds a step at a time

depending on the occurrence of a statute.

A well drawn Act, particularly if it is a consolidating Act or a codification restatement of law. "t does not purport to alter

it, e%cept in minor details, but does purport to declare what the law is and gi#es it a legislati#e effect) or a branch of law,

renders the law on a gi#en subject easy and con#enient for reference e.g. -n#ironment Act.

They are published and become public document therefore they are easily accessible.

They do not apply retrospecti#ely ne#er bac@dated) especially in criminal matters.

Diad(anta2e

"t is embodied in an authoritati#e legal jargon, which are not easily comprehensible.

"t is the duty of the court to apply the law as it is in interpreting the law. This is a drawbac@ because the courts are not

concerned with the spirit of the law, but with the correct interpretation.

Interpretation o! tatute

Se#eral things help us interpret statutes. These are=

$ "ntrinsic and e%trinsic aids

$ !ules of statutory interpretation

$ &resumptions of statutory interpretation

Intrinsic and extrinsic aids"ntrinsic aids are things found within the statute itself that assist in interpretation. These include= "nterpretation section$ asection defining the terms used in the statute, Sectional eads$ tell us what the section is all about, &reamble$ a statement

setting out the purpose of the Act.

-%trinsic aids are found outside the statute but also help interpret the statute. These include= >ictionary$ helps clarify ordinary

meaning of words, &arliamentary reports$ help trace intention of parliament etc.

Rules of Statutory Interpretation

These are principles of interpretation which ha#e been de#eloped o#er time. They include

$Literal Rule:(ords in statutes are gi#en their natural and ordinary meaning. Se#eral cases ha#e been decided here including=

Disher # 8ell 6G16)A flic@ @nife displayed in a shop was not Hoffered for sale. "t is presumed the draftsmen @now technical legal language and so

the common law e%pression was not altered.(hitely # Chappel 6B1B)

> could not personate a dead person because a dead person is not entitled to #ote.

$ Golden Rule:0sed when literal rule might produce an absurdity or repugnant result. (hen the plain ordinary meaning so

applied they produce an inconsistency, or an absurdity, or incon#enience, the court should adopt the meaning that resol#es the

absurdity.

Allen # !8igamist cannot Hmarry again.

$Mischief Rule:the judge should adopt an interpretation that disco#ers the mischief the Act intended to put right.

Smith # ughes

The Hmischief this Act was trying to control was that of prostitutes openly soliciting customers in the street, the prostitute was

sitting in a house and tapping on a window to attract the attention of men wal@ing by. eld' the aim of the Act was to enable

people to wal@ along the street without being solicited and e#en though the prostitute was not in the street herself, the Act

should be interpreted to include this acti#ity.Fardiner # Se#enoa@sHCa#e, Act intended to @eep wor@ers and others safe from combustible film, therefore ca#e is a premise.

$Purposive Rule' &arliament should always see@ to gi#e effect to the intention of parliament. "f the intention of &arliament isclear from the words used there is no need for the courts to go outside the statute to find the intention of &arliament.

$ Contextual Rule:a word should be interpreted in its conte%t. "t is permissible to loo@ at the statute as a whole to disco#er the

meaning of a word in it. Eeaning of the words can be understood from the words around them.

$Ejusdem Generis' if a sentence starts with specific words and ends with general words, the general words are to be ta@en as

referring only to those things of the same class as specifically mentioned e.g. Hcats and dogs does not include wild animals.

-#ans # Cross

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(hite line, not a traffic sign I...warning signposts, directions on posts, signs or other de#icesI

&owell #. empton &ar@ !acecourse Co. 6BGG) .

The 8etting Act 6B42 prohibits the @eeping of a "house, office, room or any other place for betting with persons resorting

thereon". The ouse of Lords held that the words "any other place" meant a place similar to a house, office or room and

would not, therefore, apply to Tattersall;s ring on the racecourse.

Presumptions of Statutory Interpretation

These are assumptions which remain true unless pro#ed otherwise.

$ Statutes should ha#e no retrospecti#e effect i.e. does not apply bac@wards.$ Any gaps and omission from statute are Hultra #ires, i.e. beyond the scope of the statute.

$ "f a statute imposes criminal liability it must reuire Hmens rea, i.e. proof of guilty intention.

$ "f a statute appro#es confiscation+sei/ure of assets, compensation for #alue must be gi#en.

$ Acts of &arliament ha#e no e%traterritorial effect i.e. they only apply within territory of enya.

$ A statute does not change the Common Law unless e%pressly stated by the Act of &arliament.

$ A statute does not repeal other statutes unless it e%pressly states so.$ A statute does not ta@e away personal liberties unless by e%press words.

$ -#ery person is assumed innocent until pro#en guilty

De$e2ated%u'idiary Le2i$ation

This is law made by other bodies with authority from parliament. This includes=

$ Court !ules' !ules Committees of the #arious courts are empowered to ma@e the rules which go#ern procedure in the

particular courts o#er which they ha#e delegated authority.

$ &rofessional !egulations' &rofessional regulations go#erning particular occupations may be gi#en the force of the lawunder pro#isions delegating legislati#e authority to certain professional bodies. An e%ample is the power gi#en to the

Law Society of enya, "C&A, "C&S etc.$ Legal Notice' also called Statutory "nstruments, being the means through which Fo#ernment Einisters introduce

particular regulations under powers delegated to them by &arliament in enabling legislation e.g. the Eichu@i !ules.

$ Local Authority 8yelaws' Local Authority 8yelaws are the means through which local authorities and other public

bodies can ma@e legally binding rules and may be made under such enabling legislation as the Local Fo#ernment Act.

Control of ele!ated le!islation

These difficulties and potential shortcomings in the use of delegated legislation are, at least to a degree, mitigated by the fact

that specific controls ha#e been established to o#ersee it'i) &arliamentary control o#er delegated legislation' The power to ma@e delegated legislation is ultimately dependent on the

authority of &arliament. &arliament, therefore, retains general control o#er the procedure for enacting such law. This happens

through committee on legal affairs, which is empowered to scrutini/e the delegate legislation to ensure they are within the law.Any member can mo#e a motion in parliament to challenge any delegated legislation e.g. ga/ette notice re$appointing !ingera.

ii) etails

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"t allows administrati#e authorities to fill in the details of a statutory scheme i.e. ?it pro#ided the flesh and blood to the s@eleton

so that it may li#e N8' >ecentrali/ation of decision ma@ing in essence in#ol#es delegation of power. This will lead to rapid

de#elopment.

Diad(anta2e

a. Abuse

"t is prone to abuse i.e. the powers and trust conferred to ministries or bodies can easily be misused.b. &ublicity or Lac@ of "t

"n contrast to legislation law, these lac@ wide publicity so that indi#iduals may not be aware of rules and orders passed byministries or bodies, yet they are subject to it.

c. "nsufficient


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$ "t is more fle%ible than legislation. Durther, because of its binding nature, people can regulate their conduct with

confidence in its certainty.

$ "t is more easily and uic@ly made than legislation, and this is particularly important where adaptation of the law to

minute differences of circumstances is reuired.

$ "t acts as the best preparation for statute law. Codifications such as the Sale of Foods Act 6G3G and the 8ills of

-%change Act 6BB5 are the outcome of judicial decisions, and are models of statute law.

$ "ts detail is much richer than any code of law but against this must be set its comple%ity).$ 0nli@e statute law, there is harmony between new precedents and e%isting law, which grow concurrently.

The diad(anta2e can be listed as follows.

$ "t is not made by the community but by the judges. owe#er, &arliament can, and does, o#errule judicial decisions, as

it did in the case of #urmah Oil v$ ord Advocate%&'()*, by passing the retrospecti#e effect of the +ar amage Act

%&'()*. The judges are strictly impartial and highly e%pert Jprobably more so than a body of legislators.

$ As case law adds an increasing number of e%ceptions to unwanted rules, it is notorious for its bul@ and comple%ity. "t

is a difficult form of law to handle but, as legislators now endea#our to anticipate judicial decisions, the statute lawitself tends to become more bul@y and in#ol#ed, too.

$ Case law is often criticised as being retrospecti#e in effect or Iex post factoI. Theoretically, of course, judicial

decisions merely gi#e effect to principles that ha#e always e%isted in the body of the law. This peculiarity does not

always operate fairly, for a decision may upset long$standing interests by its retrospecti#e operation.

$ Dinally, it is difficult to disentangle that part of the judicial decision which is strictly a binding source of law the ratio

decidendi) from Ithings said by the wayI, i.e. obiter dicta.

DO#TRINES OF #O&&ON LAW AND E7UIT"

&eople in -ngland used their customs to resol#e disputes among them, until the time of the Norman Conuest in 614G A>. A

new ing came to power who wanted to ha#e formal systems of dispute resolution. e appointed !oyal Commissioners whowent round the country to obser#e how each community resol#ed its disputes. *n coming bac@ to London, these set up a court

at (estminster, where they heard cases and resol#ed disputes. The judgments and rules of this court were then called common

law$ as they were deri#ed from the practices of each community. Common Law+ Case Law is based on the doctrine of octrines of -uity.

The abo#e two are applicable in enya since the enyan legal system is largely based on the -nglish legal system, our colonial

power.

AFRI#AN #USTO&AR" LAW

African customary law may be described as the law based on the customs of the ethnic groups which constitute enya;s

indigenous population. Section 25) of the istrict Eagistrate;s Court;s Act 6G13, S.5 restricts the ci#il cases to

which African customary law may be applied to claims in#ol#ing any of the following matters only'

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i) land held under customary tenure=

ii) marriage, di#orce, maintenance or dowry=

iii) seduction or pregnancy of an unmarried woman or girl=

i#) enticement of, or adultery with, a married woman=

#) matters affecting status, particularly the status of women, widows and children, including guardian$ship, custody, adoption

and legitimacy=

#i) intestate succession and administration of intestate estates, so far as it is not go#erned by any written law."naman-a !hiwaya v .sumaunreported igh Court Ci#il Appeal No.1 of 6G3K) the igh Court held that the abo#e list of

claims under customary law was e%hausti#e and e%cludes claims in tort or contract.3c) Su'9ect to it or a!!ected it

*ne of the parties must be subject to it or affected by it. "f the plaintiff and the defendant belong to the same ethnic group, they

may be said to be IsubjectI to the customs of that ethnic group which could then be applied to settle the dispute. Dor e%ample,

a dispute between i@uyus relating to any of the matters listed in b) abo#e cannot be settled under amba, Luo or any other

customary law e%cept i@uyu customary law. owe#er, if there is a dispute in#ol#ing parties from different ethnic groups it

may be determined according to the customs of either party, since the other party would be IaffectedI by the custom.3d) Repu2nance to 9utice and ora$ity

The customary law will be applied only if it is not repugnant to justice and morality. Although the Act uses the phrase IandI in

relation to Ijustice and moralityI, it appears that IorI, rather than IandI, was intended.3e) #onitent wit* t*e written Law

Customs cannot contradict any written law, whether statute or international law.

ISLA&I# LAW

"slamic law is the law based on the oly oran and the teachings of the &rophet Eohammed as e%plained in his Sayings calledIadithI.

"slamic law is applicable in enya under section 4 of the adhi;s Courts Act 6G13 when it is necessary to determine uestions

of Euslim Law relating to=

$ personal status,

$ marriage,

$ di#orce or

$ inheritance

The Constitution places further reuirements in section 63K4) thus=$ All the parties profess the Euslim religion and

$ Eust be willing to submit to the jurisdiction of the adhis courts.

.INDU LAW

indu customary rites are applicable under S.4 of the indu Earriage and >i#orce Act, 6G1K. S.5 of the Act defines aIcustomI as Ia rule which, ha#ing been continuously obser#ed 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 a

rule applicable only to a family, has not been discontinued by the familyI. indu customary rites are a source of enya law

only for purposes of solemni/ing indu marriages.#O&PILED +",

Franci N9i*ia Ka'uru

Lecturer +uine Departent

&&UST0

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Documents

Class 1- Intro to Kenyan Law