LESSON 1

THE NATURE AND SOURCES OF LAW AND ITS ADMINISTRATION
CONTENTS
1.0 The Nature and Classification of law 1.1The sources of Kenya Law 1.2Statute Law 1.3Common Law 1.4Equity 1.5African Customary Law 1.6Islamic Law 1.7Hindu Law 1.8The Kenya judicial system 1.9Special Courts 1.10 Case Law and Judicial precedent 1.11 The Court System 1.12 Legal profession

MODE:
1. 2. 3. 4. Read the Study Text provided below Assigned readings: Chapters 1, 2 and 3 of Hussein Attempt the reinforcing questions given at the end of the lesson Compare your answers with those given in lesson 9

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NATURE AND CLASSIFICATION OF LAW

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The term “law” has no assigned meaning. It is used in a variety of senses. Though different writers have attempted to explain the term, no generally acceptable explanation has been given. Different writers explain the term law from different points of view. The study of law is referred to as jurisprudence or legal philosophy. According to Hart Law is a coercive instrument for regulating social behaviour. Law has also been defined as a command backed by sanctions. These two explanations of the term law presuppose the existence of a sovereign, which prescribes or formulates the commands and enforces sanctions, which is not necessarily the case. 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. Inevitably, therefore law implies rules or principles enforced by courts of law. Rules of law are binding hence differ from other rules or regulations. Rules of law are certain. In summary therefore, law is an aggregate of conglomeration of rules enforced by courts of law at a given time. Rules of law originate from acts of parliament, customary and religious practises of the people, they may also be borrowed from other countries. Law and Morality Morality consists of prescriptions of the society and is not enforceable, however, rules of law are enforceable. Wrongs in society are contraventions of either law or morality or both. However, law incorporates a significant proportion of morality and to that extent morality is enforceable. However, such rules/contraventions are contraventions of law for example murder, rape theft by servant or agent. Purposes or Functions of Law (i) Rules of law facilitate administration of justice. It is an instrument used by human beings to achieve justice.

(ii) Law assists in the maintenance of peace and order. Law promotes peaceful co-existence, that is, prevents anarchy.

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(iii) Law promotes good governance. (iv) Law is a standard setting and control mechanism. (v) Provision of legal remedies, protection of rights and duties.

Types and Classification of Law Rules of law may be classified as: • • • • • Written National and International Public and Private Substantive and Procedural Criminal and Civil

Written Law These are rules of law that have been reduced into a written form. They are embodied in a formal document for example The Constitution of Kenya, laws made by parliament (statutes). Such laws prevail over unwritten Law.

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Unwritten Law These are rules of law that have not been reduced into written form. They are not embodied in any single document for example African Customary Law, Islamic Law, Hindu Law, Common Law, Equity. Their existence must be proved. National or Municipal Law These are rules of law operational within the boundaries of a country. It regulates the relation between citizens and between citizens and the state. It is based on Acts of Parliament, customary and religious practices of the people. International Law It is a body of rules that regulates relations between countries/states and other international persons egg United Nations. It is based on international agreements of treaties and customary practices of states and general principles. Public Law It consists of those fields or branches of law in which the state has an interest as the sovereign egg criminal law, constitutional law, administrative law. Public law is concerned with the constitution and functions of the various organs of government including local authorities, their relations with each other and with the citizens. Public law asserts state sovereignty/power. Private law It consists of those fields or branches of law in which the state has no direct interest as the sovereign egg law of contracts, law of tout, law of property, law of succession. Private law is concerned with day to day transactions of legal relationships between persons. It defines the rights and duties of parties. Substantive Law It is concerned with the rules themselves as opposed to the procedure on how to apply them. It defines the rights and duties of parties and provides remedies when those rights are violated e.g. law of contract, negligence, defamation. It defines offences and prescribes punishment e.g. Penal Code Cap 63.

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Procedural Law It 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 substantive law. It is also referred to as adjective law e.g. Criminal Procedure code Cap 75, civil procedure Act Cap 21. Criminal Law Criminal law has been defined as the law of crimes. A crime has been defined as an act or omission, committed or omitted in violation of public law egg murder, manslaughter, robbery, burglary, rape, stealing, theft by servant or agent. All crimes or offences in Kenya are created by parliament through statutes. Suspects are arrested by the state through the police. However, individuals have the liberty to arrest suspects. Offences are generally prosecuted by the state through the office of the Attorney General. When charged with a particular offence the suspect becomes an accused hence criminal cases are styled as R V Accused. Under sec 77 of the constitution the person cannot generally be prosecuted for an act or omission which was not defined by law as a crime when committed or omitted. Under section 77 (2) (a) of the constitution an accused person is presumed innocent until proven or has pleaded guilty. It is the duty of the prosecution to prove its case against the accused. The burden of proof rests on the prosecution. The standard of proof in criminal cases is beyond any reasonable doubt. In the event of any reasonable doubt the accused is set free (acquitted). The court must be satisfied that the accused committed offence as charged. If the prosecution discharges the burden of proof the accused is convicted and sentenced which could take any of the following forms. (a) (b) (c) (d) (e) (f) (g) Imprisonment term Capital punishment Corporal punishment Community service Fine Conditional discharge Unconditional discharge

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The purpose of criminal is; • To ascertain whether or not the crime has been committed. • To punish the crime where one has been committed. Civil Law Civil law is concerned with violations of private rights in their individual or corporate capacity egg breach of contract, negligence, defamation, nuisance, passing off trespass to the person or goods. If a person’s private rights are violated, the person has a cause of action. Causes of action are recognized by statutes and by the common law. The person whose rights have been allegedly violated sues the alleged wrong doer. Hence civil cases are styled as Plaintiff v Defendant. It is his duty of the plaintiff to adduce evidence to prove his case the burden of proof lies on the plaintiff. The standard of proof in civil cases is on a balance of probabilities or on a preponderance of probabilities. It must be more probable than improbable that the plaintiff’s allegations are true. If the plaintiff discharges the burden of proof then he wins the case and is awarded judgement which could take any of the following forms:

(a) (b) (c) (d) (e) (f) (g)

Damage, i.e. monetary compensation Injunction Specific performance Tracing Accounts Rescission Winding up/liquidation

Purpose of civil laws (i) Protection of rights and enforcement of duties. (ii) Provision of legal remedies as and when a persons rights have been violate

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SOURCE OF KENYA LAW AND ADMINISTRATION OF THE LAW

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1.

SOURCES OF KENYA LAW
1.1 A source of law is the origin of the rule, which constitutes a law, or legal principle. The phrase `sources of Kenya law' therefore means the origin of the legal rules which constitute the law of Kenya. The various sources of law of Kenya are identified by the Judicature Azt, Kadhis Court Act, the Constitution, Hindu Marriage and divorce Act and the Hindu Succession Act. 1.2 The Judicature Act Cap 8, Laws of Kenya The sources of Kenya law are specified in the Judicature Act 1967, S.3(1) of which states that the jurisdiction of the High Court, the Court of Appeal and all subordinate courts shall be exercised in accordance with: (i) the constitution;

(ii) subject thereto, "all other written laws", (including certain Acts of Parliament of the United Kingdom which are cited in Part I of the Schedule to the Act), and (iii) subject thereto and so far as the (aforesaid) written laws do not extend or apply: (a) the substance of the common law; (b) the doctrines of equity, and (c) statutes of general application in force in England on 12th August 1897. S.3 (2) states 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 or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law". 1.3 The Kadhi's Courts Act 1967 Section 5 of the Kadhi's Courts Act provides that a Kadhi's Court shall have and exercise jurisdiction in matters involving the determination of Muslim Law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion. This provision constitutes Muslim Law a source of Kenya law for the specified purposes.

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1.4 The Hindu Marriage and Divorce Act 1960, S.5 (1) provides that a marriage between Hindus may be solemnized in accordance with the customary rites and ceremonies of either party thereto. The provision constitutes Hindu custom a source of Kenya law for the specified purposes.

1.5 The Legal Pyramid The sources of Kenya law mentioned above may be summarised with the aid of the following diagram or "legal pyramid":

NOTE: The sources of Kenya law consist of (a) written laws, and (b) unwritten laws. 1.

Delegated  legislation

The unwritten laws are derived, generally speaking, from the customs of the ethnic groups which constitute Kenya's indigenous population and the rules or rites of Islam and Hinduism. There is nothing strange or peculiar about this situation. In England, for example, the general customs of the English people constitute a major source of English law which is known as the common law. The principles of Christianity have also made some contribution to the development of English law, especially family law.

LESSON 1 2.

NATURE AND SOURCES OF LAW AND ITS ADMINSTRATION A written law is defined by the Interpretation and General provisions Act as: (a) an Act of Parliament for the time being in force (other than the Constitution); (b) an applied law; or (c) any subsidiary legislation for the time being in force.

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1.6 STATUTE LAW This is an Act of Parliament. This is law made by parliament directly in exercise of legislative power conferred upon it by the constitution. Section 46(5) of the Kenya Constitution states that "a law made by Parliament shall be styled an Act of Parliament". 1.7 Bills An Act of Parliament begins as a Bill, which is the draft of law that Parliament intends to make. Section 46(1) of the constitution states that "the legislative power of Parliament shall be exercisable by Bills passed by the National Assembly". Types of Bills

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A Bill may be: (i) A Government Bill, if it is presented to Parliament by the Government with a view to its becoming a law if approved by Parliament. (ii) A Private Members' Bill if it is presented to Parliament by some members, in a private capacity and not on behalf of the Government. Bills may also be divided into Public Bills and Private Bills. (a) A Bill, whether a Government Bill or a Private Members' Bill, is a Public Bill if it seeks to alter the law throughout Kenya. An example is the abortive Marriage Bill, 1979, whose aim was to introduce a uniform marriage law for all Kenyans irrespective of their racial, religious or ethnic differences. (b) A Private Bill if it does not seek to alter the general law but rather to confer special local powers. An example is where a local authority such as a Municipal Council requires power to purchase land compulsorily.

PROCEDURE FOR ENACTMENT OF LAWS
The procedure to be followed in Parliament in order to enact Law is governed by Constitution and Orders 94-125 of National Assembly Standing Orders, as amended up to and including 22nd July, 1983. A Government Bill and a Private Members' Bill follow the same procedure pursuant to Order 116 which provides that, except as otherwise provided in Part XVI of the Orders, the Standing Orders relating to Public Bills shall apply in respect of Private Bills. The exceptions provided for, briefly, are that before a Private Bill can be introduced: (i) the promoters thereof must have presented to the House a copy of the Bill annexed to a petition for leave of the House to proceed with publication of the Bill;

(ii) the promoters must have deposited with the Clerk to National Assembly a sufficient number of copies of the petition with the Bill annexed, for distribution to the members; and (iii) the petition must have been read at the first sitting of the House after its deposit and the question "That the promoters be granted leave to proceed" must have been put forthwith and decided without amendment or debate. Order 120 provides that where leave to proceed is granted the promoters shall:

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pay to the Clerk a fee of £10 for his own use.

(ii) deposit with the Government Printer the sum of £100 as security for the cost of printing the Bill, and (iii) deposit with the Clerk a bond by two persons, acceptable to the Clerk, obliging such persons to pay the Government Printer any expense of printing in excess of £100. Order 117 provides that 'every private Bill shall contain a clause saving the rights of the President, the Government of the Republic of Kenya, of all bodies politic or corporate, and of all others, except such as are mentioned in the Bill and those claiming by, from or under them' Publication of Bills in the Kenya Gazette Order 98 provides that no Bill shall be introduced unless it has been published in the Gazette and a period of fourteen days beginning with the day of such publication, or such shorter period as the House may resolve with respect to the Bill, has ended. However, the period of publication for a Consolidated Fund Bill, an Appropriation Bill or a Supplementary Appropriation Bill is seven days only. READINGS First Reading Order 101 provides that "every Bill shall be read a First Time without motion made or question put and shall be ordered to be read a second time on such day as the member in charge of it shall appoint". No debate takes place. The first reading is therefore a mere formality. • Second Reading During the second reading the general merits of the Bill may be debated and any necessary amendments are proposed to the various clauses it contains. Every member wishing to contribute is offered the opportunity. Committal Stage

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Order 103 provides that a Bill having been read a second time shall stand committed to a committee of the Whole House, unless the House commits the Bill to a select committee of members of parliament for a critical analysis. Order 104 provides that all committees to which Bills are committed shall have power to make such amendments thereto as they think fit, and shall report the amendment to the House. • Report Stage Order 106(12) provides that at the conclusion of the proceedings in committee on a Bill a Minister, or the member in charge, shall move "That the Bill (as amended) be reported to the House", and the question thereon shall be decided without amendment or debate. The chairman of the select committee lenders its report to the National Assembly. Third Reading It is provided in Order 112(1) that on the adoption of a report on a Bill the Third Reading may with leave of Mr. Speaker be taken forthwith and if not so taken forthwith shall be ordered to be taken on a day named by the member in charge of the Bill. Order 112(2) provides that on the third reading of a Bill amendments may be proposed similar to those proposed on second reading. THE PRESIDENT'S ASSENT Under section 46(2) of the Constitution a Bill passed by the National Assembly must be presented to the President for his assent. |The President must signify his assent or refusal to the speaker of the National Assembly within 21 days of receipt of the Bill. If he refuses to assent, he must within l4 days thereof deliver to speaker a written memorandum of the provisions he would like reconsidered and his recommendations and the National Assembly may either: (a)
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Re-pass the Bill incorporating the Presidents recommendation with or without amendments and resent it for his assent or Re-pass the Bill in its original form thus ignoring the President’s recommendations. If the resolution to re-pass the Bill is such is supported by at least 65% of all members excluding ex-officio members the President must signify his assent within 14 days of the resolution.

PUBLICATION Section 46(3) of the constitution states that `upon a Bill that has been passed by the National Assembly being presented to the President for assent, it shall become law and shall thereupon be published in the Kenya Gazette as a law'. The wording of this section does not appear to prescribe the President's assent as a condition precedent to the enactment of a Bill, although in practice the assent is so regarded. This is so because the constitution uses the words "upon ... being presented" and not "after assent", or "upon assent".

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COMMENCEMENT Section 46(4) of the constitution provides that a law made by Parliament shall not come into operation until it has been published in the Kenya Gazette. But it also empowers Parliament, subject to certain exceptions, to postpone the coming into operation of any law and to make laws with retrospective effect. ADVANTAGES AND DISADVANTAGES OF ACTS OF PARLIAMENT An Act of Parliament may be said to possess the following advantages: (i) Democratic in nature It is democratic in the sense that it reflects the wishes of Kenyans as to what the law should be. This is because it is made by a Parliament which consists of representatives of the people who are elected at intervals of not more than five years. (ii) Resolution of Legal Problems It enables Parliament to find legal solutions to any problem that the country may face. An English judge once stated that an Act of Parliament can in theory deal with any problem except that it cannot change man to woman, (although it may provide that reference therein to `man' shall include 'woman'.) (iii) Dynamic It enables new challenges that emerge in the course of social development to be legally dealt with by the passing of new Acts of Parliament, or amending some of the existing Acts.

(iv) General Application It is usually a statement of general principles and rules and can therefore be applied to different situations in a flexible manner as determined by the court in a particular situation.
(i)

Uniformly Applied.

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It applies indiscriminately. (ii) Publicity Statute law is the most widely published source of law. DISADVANTAGES OF STATUTE LAW (i) Imposition of law Some Acts are imposed on the people and reflect the views of the Executive, or pundits in the ruling political party. Having observed the working of the British Parliament over a period of forty five years James Margach has stated in his book, `The Anatomy of Power', that "the reality is that the modern Parliament has become in practice a central registry for recording votes and giving effect to decisions taken elsewhere in the Cabinet and in Government Departments. Parliament now governs only in the technical formal sense", and largely rubber-stamps what is put before it by the Executive. Although it is rather early to precisely state what the position of the Kenya Parliament is, some recent events indicate that during the one-party era its role in crucial or sensitive political issues corresponded to that of the British Parliament as stated above by Mr. Margach, namely, to rubberstamp what is put before it by the Executive, at the behest of some politically powerful individuals who held key administrative positions in the ruling political party, KANU. (ii) Wishes of members of parliament Acts of Parliament do not reflect the wishes of the people (voters) but the wishes of the individuals who constitute Parliament at any given time. During debates on Bills, Members of Parliament express their personal views and finally enact laws on the basis of those views. They do not hold meetings in their constituencies to ascertain what the people's views on Bills are so that they may eventually report back to Parliament what those views are and then vote on the Bills in accordance with those views. (iii) Bulky and technical Bills Some Bills are so bulky and technical that they are passed without sufficient debate because Parliament lacks the time and knowledge to consider them in detail. Examples are Finance Bills.

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(iv) Formalities The process of enacting a statute that would substantially conform to the wishes of the people affected by it would be very slow. This is because very many public meetings must be held before a consensus on the proposed law can be reached. The delay in re-introducing the abortive Marriage Bill, 1979 illustrates this point.

STATUTORY INTERPRETATION
The precise meaning of a law written in an Act may cause a legal dispute. This is so because, although the law is written and can therefore be read by any literate person, some of the words thereof may not mean the same thing to different readers. This fact has been confirmed by the arguments adduced in court by parties to such disputes. Principles and Presumptions of Construction In the course of settling some of these disputes the courts in England have elaborated the rules which they will use in order to interpret, if necessary, any Act. Assuming that the same rules have been or will be adopted by Kenya courts, they may be summarised as follows: (i) Literal rule The primary rule of interpretation is known as the literal rule. It requires judges to interpret the words of a statute according to their grammatical or literal meaning. Generally speaking, every word in an Act must be given a meaning and no word is to be added to, or taken from, the Act. (ii) ‘Mischief’ rule (Rule in Heydons Case) Under this rule the court will examine the Act to ascertain what its purpose was and the 'mischief', or defect, in the common law that it was intended to remove. This rule was explained in HEYDON'S CASE as follows: "Four things are to be discussed and considered: (i) what was the common law before the making of the Act?

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(ii) what was the mischief and defect for which the common law did not provide? (iii) what remedy has Parliament resolved and appointed to cure the disease? (iv) what is the true reason for the remedy? Judges shall.... make such construction as shall suppress the mischief and advance the remedy". A statute will only be construed in accordance with this rule if its construction in accordance with the literal rule would fail to suppress, or punish, the mischief. An example of this can be seen in the case of SMITH v HUGHES where it was held that a prostitute who attracted the attention of passers by from a balcony window above the street had solicited in a street within Section 1(1) of the English Street Offences Act, 1959. The judge stated as follows: "I approach the matter by considering what is the mischief aimed at by this Act. Everybody knows that this was an Act intended to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes". Viewed in that way, the actual place from which a prostitute attracted the attention of somebody walking in the street did not matter, and she will be deemed to have solicited in the street (iii) The ‘Golden’ rule The so-called ‘golden’ rule will be used by the court in order to avoid arriving at an absurd decision under the literal rule of construction. It was explained by Parker B in case of BECKE v SMITH as follows: “It is a very useful rule, in the construction of a statute, to adhere to the ordinary meaning of words used, and to the grammatical construction, unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified.”. An example of the application of the rule is INDEPENDENT AUTOMATIC SALES LTD v KNOWLES & FOSTER where it was held that a debt may be regarded as a "book debt" within s.95 (2)(e) of the English Companies Act 1948 even though it has not been entered in the books of the business, provided that it would or could in the ordinary course of such business be entered in wellkept books relating to that business. To restrict the phrase "book debts" to those debts entered in the books of the business would have entailed an unrealistic and illogical categorization of the debts of the business. (iv) The ‘Ejusdem generis’ rule This rule states that where general words in an Act follow particular words, the general words are to be construed as being limited to the persons or things within the class designated by the particular words. For example, in a reference to "cows, goats, donkeys and other animals" the general words "other animals" would be construed to mean animals of the same genus or species as cows, goats and donkeys, that is, domestic animals, and would not include wild animals such as zebras, antelopes or tigers.

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Expressio unius est etclusio ullerius (vi) (vii) Nositier a Soiis Rendedo Singular Singular

(viii) A statute must be constued as a whole (ix) Rank Principle (x) Statutes in Pari maleria In EVANS v CROSS, Evans was charged with ignoring a traffic sign, namely, a white line painted in the middle of a road, when overtaking on a bend into the road, contrary to Section 49 of the U.K. Road Traffic Act, 1930. Section 48(10) of the Act defined a traffic sign as "all signals, warning signposts, direction posts, signs or other devices". It was held that the words "or other devices" must be construed 'ejusdem generis' the preceding words and, therefore, the white painted line on the road was not a traffic sign. Evans had therefore not committed an offence under the section The other points to be noted in relation to judicial interpretation of Acts are as follows: (a) No clause of an Act is to be construed in isolation but in relation to the other clauses of the Act, and the context, so as to arrive at a consistent meaning of the whole Act. (b) In England, the judges do not refer to the passages in HANSARD, the legislative history of an enactment or the explanatory memoranda which preface the Bills before Parliament, in order to arrive at a conclusion on the possible meaning of the words therein. It is not clear whether the Kenya courts will adopt the same approach.

(c) In ASSAM RAILWAYS AND TRADING CO. LTD. v. I.R.C. Lord Wright stated:

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"It is clear that the language of a Minister of the Crown in proposing in Parliament a measure which eventually becomes law is inadmissible". The English courts cannot therefore look at it for the purpose of construction. It is not yet known whether Kenya courts will adopt the same view. (d) Reports of Commissions or Committees which preceded the legislation are not looked at by English courts for the purpose of construction. For example, in KATIKIRO OF BUGANDA v ATT. - GENERAL a White Paper containing the recommendations of a constitutional conference held in Uganda was held inadmissible as an aid to the construction of the Buganda Agreement 1955 Order-in-Council 1955. Again, what the attitude of the Kenya courts is on this is yet to be judicially made known. (e) Lord Coleridge stated in Rv PETERS that "I am quite aware that dictionaries are not to be taken as authoritative exponents of the meanings of words used in an Act of Parliament, but it is a well-known rule of courts of law that words should be taken to be used in their ordinary sense, and we are therefore sent for instruction to these books". This means that a court may refer to, or consult, dictionaries in the absense of any judicial guidance or authority but it is not bound by what is stated therein. (f) Textbooks may also be referred to for assistance in finding the true construction of a statute but Lord Goddard stated in BASTIN v DAVIES that a court would never hesitate to disagree with a statement in a textbook (however authoritative or however long it had stood) if it is thought right to do so. PRESUMPTIONS In their attempt to construe statutes, courts of law are guided by the following presumptions or Assumptions. (a) (b) (c) (d) (e) (f) (g) That the statute was not intended to change or alter the common law. That the statute was not intended to affect the crown. That the statute was not intended to interfere with vested rights of individual. That the statute was not intended to impose liability without fault. That the statute was not intended to have extra-territorial effect. That the statute was not intended to be inconsistent with international law. that an accused person is presumed innocent until proven or has pleaded guilty.

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APPLIED LAWS Section 2 of the Interpretation and General Provisions Act defines an "applied law" as: (a) an Act of the legislature of another country or an order in council of the United Kingdom; or (b) subsidiary legislation made under any of the foregoing, which is for the time being in force in Kenya.

SUBSIDIARY LEGISLATION This is subordinate or delegated indirect 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'. The by-laws, notices, orders, regulations, rules and other 'instruments' constitute the body of the laws known as subsidiary legislation. Although section 30 of the Constitution provides that 'the legislative power of the Republic (of Kenya) shall vest in the Parliament', it is not possible for Parliament itself to enact all the laws that are required to run 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:

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(a) Compensation of lost Parliamentary 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. (b) 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. A Government Minister with relevant powers can respond more effectively through subsidiary legislation which can be enacted in one day, if necessary. (c) 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 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. (d) Flexibility The procedure adopted by Ministers to enact laws are 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 criticised for a variety of reasons, the main ones being that it is: (a) Less democratic

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The real or ultimate makers of 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 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 feel should not have been enacted but they cannot dismiss the civil servants. Lord Hewart has called this situation "the new despotism". (b) Difficult to Control 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. 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? • Inadequate publicity • Sub-delegation and abuse • Detail and complexity JUDICIAL CONTROL The courts 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. (a) Substantive Ultra Vires A law may be declared substantively ultra vires if the maker had 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 Ltd v Wednesbury Corporation (b) Procedural Ultra Vires

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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. LEGISLATIVE OR PARLIAMENTARY CONTROL (i) (ii) (iii) (iv) (v) (vi) Parliamentary approval Ministerial approval Publication in the Kenya Gazette Circulation of draft rules to interested parties. Delegation of legislative power to selected persons and bodies Prescribes the scope and procedure of law making.

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 Authorities, such as the Mombasa Municipal Council, under the Local Government Regulations Act, 1963. Another example are 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 are 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.

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(iii) Statutes of General Application Although there is no authoritative definition of a "statute of general application" the phrase is presumed to refer to those statutes that applied, or apply, to the inhabitants of England generally. In the case of I v I the High Court held that the Married Women's Property Act 1882 is an English statute of general application that is applicable in Kenya. 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 that 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 .

APPLICATION OF THE UNWRITTEN SOURCES OF KENYA LAW
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.

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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"

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(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

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

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) Guide 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 judge 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) Civil Case Customary law is applicable only in civil cases. The District Magistrate's Court's Act 1967, S.2 restricts the civil cases to which African customary law may be applied to claims involving any of the following matters only: (i) land held under customary tenure;

(ii) marriage, divorce, maintenance or dowry; (iii) seduction or pregnancy of an unmarried woman or girl; (iv) enticement of, or adultery with, a married woman;

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(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 v 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) Subject to it or affected it 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, they may be said to be "subject" to the customs of that 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. 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) Repugnance to justice and morality The customary law will be applied only if it is not repugnant to justice and morality. Although the Act uses the phrase "and" in relation to "justice and morality", it appears that "or", rather than "and", was intended. In MARIA GISESE ANGOI v MACELLA NYOMENDA (see Civil Appeal No.1 of 1981 being the judgement 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 then 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 Masai 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. Consistent with the written Law

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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 1967 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.

HINDU LAW
Hindu customary rites are applicable under S.5 of the Hindu Marriage and Divorce Act, 1960. S.2 of the Act 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 a rule applicable only to a family, has not been discontinued by the family". Hindu customary rites are a source of Kenya law only for purposes of solemnizing Hindu marriages.

ADMINISTRATION OF THE LAW
THE KENYA JUDICIAL SYSTEM The current Kenya judicial system is organized in the form of a pyramid, with the Court of Appeal at the apex, the High Court immediately below it and then the subordinate courts consisting of the Kadhi's Court, Resident Magistrate's Court, District Magistrate's Court and the Court Martial. This structure of the courts is based on the Constitution, the Magistrate's Courts Act 1967 and the Kadhi's Courts Act 1967. The structure of the Kenya courts may be explained with the aid of the following diagram:

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The arrows point at the court to which an appeal lies from a lower court.

THE COURT OF APPEAL
Establishment The Court of Appeal was established on 28th October, 1977 by Section 64(1) of the constitution which states that 'there shall be a Court of Appeal which shall be a superior court of record'. Composition S.64 (2) of the Constitution states that 'the judges of the Court of Appeal shall be the Chief Justice and such number, not being less than two, of the judges of appeal ... as may be prescribed by Parliament'. The Judicature Act, 1967, s.7(2), as amended by the Statute Law (Miscellaneous Amendments) Act, 1986 provides that the number of judges of appeal shall be eight. Jurisdiction S.64 (1) of the Constitution provides that the Court of Appeal 'shall have such jurisdiction and powers in relation to appeals from the High Court as may be conferred on it by law'. The Appellate Jurisdiction Act 1977, S.3(1) provides that 'the Court of Appeal shall have jurisdiction to hear and determine appellas from the High Court in cases in which an appeal lies to the Court of Appeal under any law'. Section 3(3) of the Act further provides that in the hearing of an appeal in exercise of the jurisdiction conferred by the Act, the law to be applied shall be the law applicable to the case while it was being heard in the High Court. Procedure

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The practice and procedure of the Court of Appeal are regulated by Rules of Court made by the Rules Committee constituted under the Appellate Jurisdiction Act. However, S.5(3) (1) of the Act provides that an uneven number of at least three judges shall sit for the final determination of an appeal other than the summary dismissal of an appeal. Where more than one judge sits for the determination by the court on any matter (whether final or otherwise), the decision of the court shall be according to the opinion of a majority of the judges who sat for the purpose of determining that matter. The Court of Appeal has no original jurisdiction and hears appeals from the High Court only. THE HIGH COURT Establishment The High Court is established by S.60 (1) of the Constitution which states that 'there shall be a High Court, which shall be a superior court of record'. Composition Section 60(2) of the Constitution provides that the judges of the High Court shall be the Chief Justice and such number, not being less than thirty-two, of other judges as may be prescribed by Parliament. Under S.61 of the Constitution, the Chief Justice is to be appointed by the President while the other judges (known as "puisne judges") are appointed by the President acting in accordance with the advice of the Judicial Service Commission. Jurisdiction Section 60 of the constitution states that the High Court shall have 'unlimited original jurisdiction in civil and criminal matters and such other jurisdiction and powers as may be conferred on it by the constitution or any other law'. Although the jurisdiction of the High Court is unlimited it will in practice only serve as a trial court for civil cases in which the amount claimed is more than Shs.300,000 and cannot therefore be heard in any Resident Magistrate's Court. (a) Interpretation of Constitution Section 67(1) of the Constitution provides that where any question as to the interpretation of the constitution arises in any proceedings in any subordinate court, and the court is of the opinion that the question involves a substantial question of law, the court may, and shall if any party to the proceedings so requests, refer the question to the High Court. For purposes of determining the question referred, it shall be composed of an uneven number of judges, not being less than three. The decision of the High Court binds the Court that referred the question to the High Court and it must dispose the case in accordance with the High Court's decision.

(b) Supervisory Jurisdiction The High Court has jurisdiction under S.65 (2) of the Constitution to supervise any civil or criminal proceedings before any magistrate's court or court-martial and can make such orders, issue such writs and give such directions as it may consider appropriate for the purposes of ensuring that justice is duly administered by such court. (c) Admiralty Jurisdiction

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The High Court is constituted a court of admiralty by S.4 of the Judicature Act for the purpose of exercising 'admiralty jurisdiction in all matters arising on the high seas or in territorial waters, or upon any lake or other navigable inland waters in Kenya'. The law applicable to such cases is the Admiralty of England as well as 'international Laws and the comity of nations'. (d) Presidential and Parliamentary election petitions. (e) Enforcement of fundamental rights and freedoms

RESIDENT MAGISTRATE'S COURT
Establishment The Resident Magistrate's Court is constituted by S.3 (1) of the Magistrate's Courts Act which provides that 'there is hereby established the Resident Magistrate's Court, which shall be a court subordinate to the High Court and shall be duly constituted when held by a Chief Magistrate, a Senior Principal Magistrate, a Principal Magistrate, a Senior Resident Magistrate or a Resident Magistrate'. Civil Jurisdiction The civil jurisdiction of the Resident Magistrate's Court was increased by the Statute Law (Miscellaneous Amendments) Acts of 1983, 1986 and 1991 and is as follows: Court Jurisdiction Court Held by a chief Magistrate, a Senior Principal Magistrate, Principal Magistrate No jurisdiction or a Senior Resident Magistrate Court Held by a Resident Magistrate Value of subject matter does not exceed Shs. 50,000/-. under African customary law Value of subject matter does not exceed Shs.25,000/-

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Has unlimited Subject-matter jurisdiction in claims based on African Customary law The Chief Justice is empowered, by notice in the Gazette, to increase the limit of jurisdiction of: (a) a Chief Magistrate or Senior Principal Magistrate to a sum not exceeding50000/=; and (b) a Principal Magistrate, Senior Resident Magistrate or to a sum not exceeding300,000/= (c) Resident Magistrate not exceeding Ksh 75,000/= Criminal Jurisdiction The Criminal Procedure Code, as amended by the Statute Law (Miscellaneous Amendments) Act 1986, provides that a subordinate court held by a Chief Magistrate, a Senior Principal Magistrate Principal Magistrate or Senior Resident Magistrate may pass any sentence authorised by law for an offence triable by that court. DISTRICT MAGISTRATE'S COURT Establishment District Magistrate's Courts are established for each district in Kenya by S.7(1) of the Magistrate's Courts Act 1967. Constitution Section 7(1) of the Act provides that a district magistrate's court 'shall be duly constituted when held by a district magistrate who has been assigned to the district in question by the Judicial Service Commission'. Territorial Jurisdiction Section 7(3) of the Act provides that 'a district magistrate's court shall have jurisdiction throughout the district in respect of which it is established'. However, the Chief Justice may, by notice in the Gazette, extend the areas of jurisdiction of a district magistrate by designating any two or more districts a joint district.

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Criminal Jurisdiction The Statute Law (Miscellaneous Amendments) Act 1983 amended the criminal jurisdiction of the district magistrate's courts and imposed the following new limits: Class First Class Second Class Third Class Imprisonment 7 years 2 years 1 year Fine Shs.20,000 Shs.10,000 Shs. 5,000 Strokes 24 12 6

The criminal jurisdiction of any magistrate may be increased by the Judicial Service Commission by notice in the Gazette. Criminal Appeal Section 10(1) of the Magistrate's Courts Act provides that any person who is convicted of an offence on a trial held by a magistrate's court of the third class may within fourteen days appeal against his conviction or sentence, or both, to the Resident Magistrate's Court. There is no right of appeal for a person who pleaded guilty and was convicted on the plea, except as to the legality or extent of the sentence. Where a person charged with an offence has been acquitted the Attorney General may appeal against the acquittal. Civil Jurisdiction The civil jurisdiction of the district magistrate's courts in claims not under customary law was changed by the Statute Law (Miscellaneous Amendments) Act 1983 and are as follows: District MagistrateMaximum Claim First Class Second Class Third Class Shs.10,000 Shs. 5,000 Shs. 5,000

There is no limit on the amount if the proceedings concern a claim under customary law.

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Civil Appeals S.11 (1) of the Magistrate's Court Act provides that 'any person who is aggrieved by an order of a magistrate's court of the third class made in proceedings of a civil nature may appeal against the order to a magistrate's court of the first class'. The appeal must be made within twenty-eight days after the date of order appealed against.

KADHI'S COURT
Establishment The Kadhi's Courts Act, 1967, S.4 (1) as amended by the Statute Law (Miscellaneous Amendments) Act 1986 provides that "in pursuance of section 66(3) of the Constitution there shall be established such number of Kadhi's Courts as the Chief Justice may, in consultation with the Chief Kadhi, determine". Territoral Jurisdiction The Kadhi's Courts Act, S.4 (2) provides that the Kadhi's court shall have jurisdiction as follows: 1. 2. Three courts each have jurisdiction within Kwale District, Mombasa District, Kilifi District and Lamu District. One court each have jurisdiction within Nyanza Province, Western Province, West Pokot District, Trans Nzoia District, Elgeyo Marakwet District, Laikipia District, Baringo District, Uasin Gishu District, Kericho District, Nakuru District and Nandi District. One court has jurisdiction within Wajir District and Mndera District. One court has jurisdiction within the Nairobi area and the Central and Eastern Provinces (except Marsabit and Isiolo District).

3. 4.

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One court has jurisdiction in Garrisa District and Tana River District. One court has jurisdiction in Marsabit District and Isiolo District.

This makes a total of eight Kadhi's courts. Civil Jurisdiction Section 65(1) of the Constitution states that 'the jurisdiction of a Kadhi's court shall extend to 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." Criminal Jurisdiction Kadhi's Courts have no criminal jurisdiction. COURT-MARTIAL Establishment Section 65 (1) of the Constitution empowers Parliament to establish court martial which shall have such jurisdiction and powers as may be conferred by any law. Pursuant to this provision, the Armed Forces Act, S.85 (1) provides that 'a court-martial may be convened by the Chief of General Staff or by the Commander'. The court-martial is not a permanent court but is convened from time to time to try any person who has committed an offence which, under the Section 84 of the Armed Forces Act, is triable by a court martial. The court is dissolved as soon as the trial is over.

Appeals Section 115 of the Armed Forces Act allows a person who has been convicted by a court-martial to appeal to the High Court either against the conviction, sentence or both. The Attorney General may also appeal to the High Court within forty days of an acquittal. S.115 (3) of the Act states that the decision of the High Court on any appeal under the Act shall be final and shall not be subject to further appeal.

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SPECIAL COURTS
In addition to the courts dealt with in paragraphs 2.1 - 2.7 above, there exist in Kenya a number of other institutions which are called "courts" or "tribunals", but which do not form part of the Kenya judicial system. They are called "courts" because they exercise judicial or quasi-judicial powers by hearing particular types of disputes or cases. Technically, however, these institutions are not courts because they do not administer the law. For example, when a trade union refers a dispute between its members and their employers to the Industrial Court, the Court will settle the dispute by following a procedure which approximates to the procedure followed in a court of law. This is done primarily as a means of ensuring that each of the parties to the dispute will be satisfied that it has been given a fair opportunity to present its case. However, if the court decides to award a salary increase for the employees, it would not be applying, or administering, a rule of law. This is so because there is no legal rule which contains, or provides a mechanism for determining, the salary scales for any class of workers in Kenya. Additionally, the decision cannot be challenged by recourse to the appellate jurisdiction of any of the courts within the judicial system. The major examples of such tribunals are: (i) The Industrial Court;

(ii) The Rent Tribunal, and (iii) The Business Premises Rent Tribunal. CASE LAW AND JUDICIAL PRECEDENT "Case law" may be described as the method or way of learning law "through the cases". By studying a particular case and the decision therein, we get to know the legal rules relating to the factual situation of the case. The more cases we learn the more we are "learning the law".

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 personalised 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.

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TYPES OF PRECEDENTS A precedent may be: (a) An binding precedent the judge must follow whether he approves of it or not. It is binding upon him and excludes 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 no obligation to follow but may however take into consideration, or follow, in the course of considering his intended decision. These, generally speaking, are decisions of lower courts and the decisions of superior courts in the Commonwealth. 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 courts of justice (in England)... do not make a law properly so-called: for that only the King 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 many times altered the law while endeavouring in good faith to declare it. But we must recognise 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 priviledge 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 judgement with a view to re-enforcing 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:

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"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 cases, accumulated in an immense series of reports extending backwards with scarcely a break to the reign of Edward the first at the close of the thirteenth century. Orthodox legal theory, indeed, long professed to regard the common law as customary law, and judicial decisions as 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 degree 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 instruments 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 England 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 position 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 homogeneous 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 centralisation 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".

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 Africa at the time that it was also the Court of Appeal for Kenya. However, it can be assumed that the rules which the Court of Appeal for East Africa laid down for Kenya Courts in Dodhia v. National & 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 implications 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, Senior 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 hear 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.

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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 v 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. The decision of the still higher court must be assumed to have been correctly distinguished (or otherwise interpreted) in the decision of the immediately higher court'. The Kenya Court of Appeal might adopt this rule when it ultimately becomes necessary to decide the point. Regarding point (iii) above, the Court of Appeal for East Africa explained in Dodhia's case that a final court of appeal (such as the Kenya Court of Appeal) should be free to depart from an earlier decision of its own: (a) Erroneous or improper conviction in criminal cases, if following the earlier decision would result in an improper conviction; (b) Changes in circumstances if there have been rapid changes in the customs, habits and needs of the people, since the earlier case was decided, so that these changes should be reflected in the decision of the final court of appeal, and (c) Per incurriam rule if it is satisfied that the earlier decision was given "per incuriam". The court did not however explain what would constitute a "per incuriam" decision. However, in MILIANGOS v GEORGE FRANK (TEXTILES) LTD the English House of Lords stated that a decision is only per incuriam where: (i) the judgment was given in inadvertence to some authority (judge-made, statutory or regulatory) apparently binding in the court giving such judgment, and

(ii) if the court giving such judgment had been advertent to such authority, it would have decided otherwise than it did (i.e. it would, in fact, have applied the authority). (d) Distinguishing the earlier decision (e) Ratio decidendi of earlier decision is too wide or obscure. (f) (g) Earlier decision has been overruled by statute Ratio decidendi is in conflict with a fundamental principle of law.

(h) Ratio decidendi is one of the many conflicting decision of a court of Co-ordinate jurisdiction. In BAKER v In BAKER THE QUEEN Lord Diplock stated: "Strictly speaking the per incuriam rule as such, while it justifies a court which is bound by a precedent in refusing to follow one of its own previous decisions, does not apply to decisions of courts of appellate jurisdiction superior to that of a court in which the rule is sought to be invoked. To permit this use of the per incuriam rule would open the door to disregard of precedent by the court of inferior jurisdiction by the simple device of holding that decisions of superior courts with which it disagreed must have given per incuriam". This means, for example, that a Resident Magistrate's Court cannot refuse to follow a decision of the High Court on the ground that such decision was made per incuriam (i.e. in inadvertence to a decision of the Court of Appeal). Any court can depart from a previous decision of its own if the decision was made per incuriam.

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ADVANTAGES AND DISADVANTAGES OF STARE DECISIS
The main advantages and disadvantages of the doctrine of stare decisis are: 1. Advantages (i) Certainty and Predictability The doctrine of stare decisis introduces an element of certainty and uniformity in the administration of justice. In DODHIA V NATIONAL AND GRINDLAYS BANK the then Court of Appeal for East Africa expressed the view that the administration of justice requires an element of certainty and uniformity which would not be possible if judges were free to make decisions without regard to earlier decisions. (ii) Flexibility Because of the freedom that the final Court of Appeal usually has to depart from a previous decision of its own if the social conditions that necessitated such decision no longer exist, there is flexibility in the administration of the law as human societies grow and become more complex. This point was particularly emphasized by the then Court of Appeal for East Africa in Dodhia v National and Grindlays Bank. (iii) Aptitude for growth The process of 'distinguishing' cases facilitates the growth of detailed legal principles to deal with different factual situations. This would probably not be possible in a purely enacted system of law. A case is 'distinguished' if a judge points out the difference in the material facts of an earlier case and the case before him for decision, as the basis for arriving at a different decision. (iv) Practicality The case law method has enabled judges to adopt a practical approach to legal problems since such problems have arisen from the practical situations in which the litigants have found themselves. This practical approach has also enabled judges to make decisions only after being satisfied that the particular decision would not create practical problems for the people subject to the law. An example is the refusal of the court in Pharmaceutical Society v Boots to regard the display of goods in a shop-window as an offer to sell them at the indicated prices. Such a decision would have had the inconvenient consequence that customers would henceforth lose freedom to pick and replace various items before ultimately presenting them to the cashier, contrary to what was actually happening in practice. (v) (vi) Rich in detail Consistency and uniformity

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Disadvantages (i) Rigidity The case law method of administration of justice has been criticized on the grounds that it leads to rigidity, since the discretion of a judge is usually restricted by the rule that he must follow the decision of his predecessors if the material facts of the case to be decided are the same as those of an earlier case.

(ii) Over-subtlety/Artificiality Because a judge is forced, as it were, to follow an earlier case which his conscience may preclude him from following, he might be inclined to 'distinguish' the present case from the earlier case. This artificial 'distinguishing' sometimes creates artificial differences which make case law over-subtle. (iii) Bulk and Complexity Because so many cases are being decided everyday by courts all over the country, case law has become bulky and complex and it is doubtful whether judges would really know if a relevant earlier case had been decided, say some ten years ago. (iv) Piece-meal Rules of law are made in bits and pieces

THE LEGAL PROFESSION
Magistrates A magistrate is an advocate who is appointed by the Judicial Service Commission to the post of (a) District Magistrate, or (b) Resident Magistrate.

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With the passage of time, he may be promoted to the rank of: • Senior Resident Magistrate, • Principal Magistrate, • Senior Principal Magistrate, or • Chief Magistrate. Due to historical reasons, a substantial number of the current District Magistrates are "lay magistrates' who are neither law graduates nor advocates. However, this situation is likely to be reversed in the near future following the implementation in 1993 of a new scheme of service for Magistrates and Judges. Judges Generally speaking, judges of the High Court of Kenya are appointed from among advocates of at least seven years' standing (i.e. those advocates who have been in private practice for at least seven years). They are called "puisne judges". All judges are appointed by the president in accordance with the advice of the Judicial Service Commission. Their appointment is already explained in paragraph 1.8.3 Qualifications To qualify for appointment as a judge of the High Court a person must either be: (a) an advocate of the High Court or (b) be or have been a judge of a court with unlimited jurisdiction in civil and criminal matters in some part of the common Wealth or Republic of Ireland. (c) Or have been a judge of a court with jurisdiction to hear appeals from a court with unlimited jurisdiction in criminal and civil matters in some part of the common Wealth or Republic of Ireland. Under section 63 of the Constitution a judge must take and subscribe the oath of allegiance and any oath as may be prescribed by Parliament, before taking duties. All judges retire at the age of 74 and enjoy some security of tenure of office. Under the Constitution a judge can only be removed from office on the ground of

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Misbehaviour or, Inability to discharge the functions of his office.

Provided a tribunal appointed by the President has investigated the allegations as a mere of fact and recommended that the judge is suspended from office, but such suspension ceases to have any effect if the tribunal recommends the judge to remain in office. However, the suspension becomes permanent if the tribunal recommends that the judge be removed from the office. Judges of Appeal A "judge of appeal" is a judge who is appointed to the Court of Appeal, as explained in paragraph 1.8.3. Attorney - General The Office of Attorney - General is constituted by S.26 (1) of the constitution which provides that "there shall be an Attorney - General whose office shall be an office in the public service". S.26 (2) of the constitution provides that he "shall be the principal legal advisor to the Government of Kenya". It is however interesting to note that the constitution does not prescribe the qualifications for appointment as Attorney -General. Registrar of the High Court The Registrar of the High Court is the administrative head of the High Court. He is assisted in his duties by the Deputy Registrar of the High Court. THE CHIEF JUSTICE The office of the Chief Justice is created by the constitution Appointment Under section 61 of the Constitution the Chief Justice is appointed by the President. Functions • • (a) Administrative Function He is the principal administrative officer of the judiciary He is the chairman of the Judicial Service Commission

LESSON 1 • • • •

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(b) Judicial Function As a judge of the High Court and court of Appeal he participates in the adjudicatory process. (c) Legislative Function The chief justice exercises delegated legislative power. He is empowered to make law to facilitate the administration of Justice. Under the Kadhi’s Court Act, Judicature Act and the Magistrate Court Act he is empowered to make rules to regulate administration of justice in subordinate courts. Under sec 84 of the constitution he is empowered to make rules to facilitate the enforcement of fundamental rights and freedoms of the individual. (d) Political function The chief justice administers the presidential oath to the person who is elected as president. He represents the judiciary in all state functions. (e) Legal education and profession • The chief justice is the chairman of the council of legal education. • He admits advocates to the ban. • He issues practicing certificates to advocates. • He appoints commissioners for oath and Notaries Public.

(f) Enhancement of Jurisdiction of Magistrates

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Under the provisions of the magistrate court the Chief Justice is empowered to enhance or increase the civil jurisdiction of the Resident Magistrates Court.

HIGH COURT REGISTRARS
These are magistrates who in addition to judicial functions perform administrative duties. They are appointed by the Judicial Service Commission. They are administrative and accounting officers. They assist the Chief Justice in the administration of the judicial department and are answerable to the Chief Justice. However the High Court Registrar is the custodian of the Roll of Advocates.

KADHI
The office of the chief Kadhi and Kadhi are created by sec 66(1) of the constitution. The chief Kadhi and all Kadhis are appointed by the judicial service commission. To qualify for appointment one must: (b) Profess Muslim faith. Possess such knowledge of Muslim law applicable to any sect of sects of Muslims which in the opinion of the J S C qualify one for appointment. (a)

Kadhis retire at 55 years. They preside over Kadhis Courts only.

ATTORNEY GENERAL
The office of the Attorney general is established by sec (i) of the constitution. It is an office in the public service. Appointment Under sec 109 (i) the Attorney General is appointed by the president. To qualify for appointment one must be an advocate of the High Court if not less than 5 years standing. The Attorney General retires at such age as may be prescribed by the parliament. He enjoys the same security of tenure of office. He can only be removed for incapacity of misbehaviour provided a tribunal appointed by the president so recommends after investigation of the allegations. Powers of the Attorney General

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Under sec 26(3) the Attorney General is empowered to: (a) (b) Institute and undertake criminal proceedings against any person before any court other than a court martial for any alleged offence. take over and continue any criminal proceedings instituted by any other person or body.

(c) Discontinue as any stage before judgement is delivered any criminal proceedings instituted or undertaken by himself or any other person or body, by entering the so called Nolle Prosecuice “I refuse to prosecute” (d) order the commissioner of police to investigate any alleged or suspected criminal acts. commissioner must oblige and report to the Attorney General. Functions • Under sec 26( 2) the Attorney General is the principal legal adviser to the government of Kenya • He occupies a ministerial post in the cabinet • Must act independently in the discharge of his duties • Drafts all government bills • He is an ex-officio member of the National Assembly • Represents the state in all cases • He is a public prosecutor • Most senior lawyer (head of the bar) • Services legal needs of other government departments • Member of the judicial service commission • Member of the Advisory Committee on prerogative of mercy Advocates The

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Under sec 3(1) of the Interpretation and General Provisions Act cap 2 and sec 2 of the Advocates Act (1989) an advocate is a person whose name has been duly entered as an advocate in the Roll of Advocate. An advocate has also been defined as a person who has been admitted as such by the Chief Justice. The law relating to Advocacy is contained in the Advocates Act. Qualifications To qualify for admission as an advocate one must a. Be a Kenyan citizen b. Possess a law degree from a recognized university c. Satisfy the council of Legal Education Examination Requirements. Procedure for Admission • A person must make a formal petition to the chief justice through the registrar of high court. • A copy of the petition must be delivered to the council of legal Education. • A notice of the petition must also be given. The petition must be published in the Kenya Gazette. • The petition is heard by the Chief Justice and subsequently the petitioner takes the oath of office and signs the role of advocates. To practise law one must have a practicing certificate. Duties of an Advocate • Duty to the Court As an officer of the court an advocate is bound to assist in the administration of justice. He must advice evidence, the law correctly each time he appears before the court. • Duty to Client He is bound to urge his clients’ case in the best manner possible. He owes a legal duty of care to the client and is liable in damages for professional negligence.

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Duty to the Profession He is bound to maintain the highest possible standard of conduct and integrity by obedience to the law and ethics of the profession.

Duty to the Society As a member of the society he is bound to take part in its social and political and economic development.

THE LAW SOCIETY OF KENYA
Establishment It is established by sec 3 of the Law Society of Kenya Act Cap 18. It is a body corporate by the name Law Society of Kenya with perpetual succession, common seal, with power to sue and be sued in its name. Membership It consists of i) Advocates ii) Special membership and honorary membership The affairs of the society are managed by a council elected by the advocates. Objects of the Law Society Under sec 4 of the Act the object of the society as established are; a. To maintain and improve the standards of conduct and learning of the legal profession in Kenya.

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b. To facilitate acquisition of legal knowledge by embers of the legal profession and others. To assist the government and the courts in all matters affecting legislation and administration of law in Kenya. d. To represent, protect and assist members of the legal profession in respect of the conditions overactive and otherwise e. To protect and assist the public in all matters touching or incidental to law f. To acquire hold, develop or dispose of moveable or immovable property g. To raise or borrow money for its objectives h. To invest and deal with monies of the society i. To do all other things incidents to or conclusive to the attainment of its objects. Arbitration This is a dispute resolution mechanism where by disputes are settled out of court by arbitral tribunals or arbitrators who make arbitral words as opposed to judgement. The law relating to arbitration in Kenya is contained in the Arbitration act 1995. This act repealed the Arbitration Act cap 49. The Act applies to both domestic and international arbitration. Under sec 3(1) of the Act an Arbitration Agreement is an agreement by parties to submit to arbitration all or certain disputes arising between them. An arbitral tribunal means a sole arbitrator or a panel thereof. An arbitration agreement may take the form of clause in the contract or a separate agreement between the parties. Methods of Reference to Arbitration A dispute may be referred to arbitration by: • • • The parties in accordance with the agreement The court if the parties to the case so consent By statute where a dispute has arisen there under

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Advantages of Arbitration (a) Speed: It is a faster method of dispute resolution (b) i. ii. iii. iv. Convenient: Parties are free to determine The number of arbitrators Venue of proceedings Language to use Law applicable

(c) Informality: Arbitral proceedings are free from legal formalities which characterize the courts of law. They are less technical in approach. (d) Expertise and specialization: The parties to the dispute have an opportunity to appoint the most qualified or specialized person to determine their dispute. (e) Cheap: It costs less to see a dispute through arbitration

(f) Privacy: Arbitral proceedings are conducted in private, free from undue publicity (g) Flexibility: exploration. Arbitral tribunals are not bound by previous awards. This provides room for

(h) User friendly/less acrimonious: Arbitration is less acrimonious and tunes down enmity between the parties. Disadvantages of Arbitration (a) Arbitral awards have no precedential value, like they cannot be relied on in subsequent proceedings

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Arbitration s characterized by the danger of the likelihood of miscarriage of justice particularly where the arbitrator is not a legal expert (c) Arbitrators exercise unregulated discretion and hence the danger of abuse of power (d) Arbitrators are more susceptible to manipulation than judges and magistrates (e) The fact that proceedings are conducted in private may raise suspicion. Appointment of Arbitrators Under sec 12(1) the parties are free to agree on the procedure of appointing arbitrators. Under sec 31(1) the parties are free to determine the number of arbitrators Arbitrators may be appointed by (a) The parties to the dispute (b) A third party or body appointed by the parties (c) High Court upon application in the following circumstances • Where the parties fail to agree as to who to appoint as the arbitrator • Where either party has failed to appoint its arbitrator within thirty days of a receipt of a request by the other party to do so. • Where the two arbitrators appointed fail to appoint a third Once appointed an arbitrator must enter upon its duties with reasonable dispatch. However he may be removed from the office;  For inability to perform  Failure to act without undue delay However, the arbitrator is free to withdraw from office.

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Powers of the Arbitral Tribunal (a) To determine whether it has jurisdiction to entertain a dispute (b) To provide interim remedies, at the request of either parties (c) To require either parties to provide security (d) To determine the admissibility of evidence (e) To appoint experts on specific issues of the dispute etc. The Arbitral Award The decision of an arbitral tribunal is referred to as an arbitral award. Where the terms of employment so require the arbitrator must make an interim award. However, in all cases he must make a final award which must be written and signed by all arbitrators. It must state the reasons of the decisions and the date of place of its making. A copy of the award must be delivered to each party. Termination of Arbitral Proceeding Arbitral proceedings may be terminated in any of the following ways a. By the final award of the arbitrator b. If the claimant withdraws the case c. If the parties mutually agree d. By the arbitrators order Challenging an arbitral Award A party dissatisfied by an arbitral award any challenge it in the High Court and the High Court may set it aside if it is satisfied that; (a) One of the parties to the arbitration agreement had no capacity to contract (b) The arbitration agreement was not valid under the law

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The award is contrary to public policy in Kenya The award is contrary to public policy in Kenya The arbitral tribunal was not appointed in accordance with the agreement (f) The applicant (dissatisfied party) was not afforded an opportunity to participate in the appointment of the arbitrator (g) The arbitral award deals with a dispute not contemplated by the parties.

The Law Society of Kenya
The Law Society of Kenya is a body corporate constituted by the Law Society of Kenya Act. Its functions, or objects, are, among others (a) to maintain and improve the standards of conduct and learning of the legal profession in Kenya; (b) to facilitate the acquisition of legal knowledge by members of the legal profession and others; (c) to assist the government and the courts in all matters affecting legislation and the administration and practice of the law in Kenya; (d) to protect and assist the public in Kenya in all matters touching, ancillary or incidental to the law. It is, perhaps, in pursuance of this object that it intends to prosecute those involved in what has become known as the "Goldenberg Scandal". An advocate with a practising certificate is required to be a member of the Law Society.

REINFORCING QUESTIONS
1. 2. List and explain the various sources of Kenya Law. Explain the importance of the following: (a) ‘ratio decidendi’ and ‘obiter dicta’ in the doctrine of binding precedent. (b) the ‘literal’ and ‘golden’ rules of statutory interpretation. 3 Explain the difference between Common Law and Equity. In what ways do Common Law rights differ from equitable rights.

Check your answers with those given in Lesson 9 of the Study Pack.

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