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Le1.Law1

Le1.Law1

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Published by Diana Soni

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Published by: Diana Soni on Dec 27, 2012
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06/04/2015

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It is a rule of Kenya Law that unwritten laws are to be applied subject to the provisions of any applicable
written law. This is a consequence of the constitutional doctrine of parliamentary supremacy and the fact
that written laws are made by parliament, either directly or indirectly.

When it is said that an unwritten law is applied subject to a written law it does not mean that a written
law is more important than an unwritten law. It only means that if any rule of unwritten law (for
example, a rule of African customary law) is in conflict with a clause in a written law, the unwritten law
will cease to have the force of law from the moment the written law comes into effect.

This rule enables Parliament to make new laws to replace existing customs as social conditions change. It
also obviates the possibility of having two conflicting rules of law regarding one factual situation.

LESSON 1NATURE AND SOURCES OF LAW AND ITS ADMINSTRATION

27

An unwritten law that is not in conflict with a written law is as binding as any written law and a breach of
it renders what has been done as illegal as if the law broken was a written law.

THE UNWRITTEN SOURCES OF KENYA LAW

COMMON LAW

Common law may be described as that 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".

It is not the entire common law that is a source of Kenya law but only that portion which the Judicature
Act describes as "the substance of the common law". This presumably means that the writ system and its
complex rules of procedure that were developed by the old common law courts for the administration of
the common law do not apply to Kenya.

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. The following are some of those
defects:

(a)The Writ System

A person intending to commence an action at common law had to obtain a 'writ' from the government
department that was authorized to issue writs. A writ was a document in the King's name and under
the Seal of Crown commanding the person to whom it was addressed to appear in a specified court
to answer the claim made against him by the person at whose request the writ had been issued.
However, there were some injuries for which no writs were available at common law owing to the
fact that, at that particular time of the common law's growth, writs could only be issued in a limited
number of cases. An example is the tort of nuisance affecting one's enjoyment of land for which no
writ existed at the time. In such cases the injured person could not take the wrongdoer to any of the
common law courts and was, as a consequence, left without a remedy for a wrong inflicted. The
Lord Chancellor, in the King's name, intervened and developed remedies for such injuries.

(b)Procedural Technicalities

The procedure in the common law courts was highly technical and many good causes of action were
lost due to procedural technicalities. For example, if A sued B because of the tresspass of B's mare
and in his writ A described the mare as a stallion, the action would be automatically dismissed. This
led to the urgent craving for a new system of procedure that would dispense justice without undue
regard to technicalities.

(c)Delays

Certain standard defences known as "essoins" caused considerable delay before a case could be
heard. For example, the hearing of a case could be automatically postponed for a year and a day if
the defendant pleaded sickness as a defence even though the court had not verified the truth of the
defence. The Lord Chancellor generally disallowed these defences and adopted the maxim "delay
defeats equity"

LESSON 1NATURE AND SOURCES OF LAW AND ITS ADMINSTRATION

28

(d)Inadequate remedies

The only remedy available at common law for a civil wrong was financial compensation called
damages. This might not be adequate compensation in such cases as breach of contract to sell a
piece of land. However, a common law court could not order the defendant to convey the land to the
plaintiff. The Lord Chancellor intervened and developed the remedy of "specific performance" for
such cases. The Chancellor, in the King's name would order the defendant to convey the land to the
plaintiff.

(e)Non-recognition of trusts

The common law did not recognize "trusts". For example if A conveyed property to B "on trust" for
C the common law courts could not compel B to use the income from the property for the benefit of
C. The Lord Chancellor intervened in such cases and the overall effect of the intervention was the
development of the body of principles and rules which constitute the basis of the current Law of
Trusts. In particular, the Court of Chancery would compel B to use the income from the "trust
property" for the benefit of C.

It should be noted that equity is "a gloss upon the common law". It was developed to supplement the
common law but not to supplant it. It does this by, as it were, filling in the gaps left by the common
law and, where appropriate, providing alternative remedies to litigants for whom the remedies
available at common law are inadequate.

However, the substance of common law and the doctrines of equity are applicable in Kenya only if
the circumstances of Kenya and its inhabitants permit and subject to such qualifications or
modifications as those circumstances may render necessary.

The English Judicature Act 1873 provided that if there is any conflict between common law and
equity, equity is to prevail. However, there is no Kenya statute to that effect. But since the Act
appears to be a statute of general application which was in force in England on 12th August, 1897 it
is prima facie applicable to Kenya. If so, any conflict between a rule of common law and a doctrine
of equity that arises in a Kenya Court would be resolved by applying the doctrines of equity.

Inadequate protection of borrowers
Rigidity or inflexibility

Contributions of Equity

(i) Developed the so called maxims of equity
(ii) Provided additional remedies

LESSON 1NATURE AND SOURCES OF LAW AND ITS ADMINSTRATION

29

(iii) Provided for the discovery of documents
(iv) Enhanced the protection of borrowers.
(v) Recognized the trust relationship

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