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GPR 109 Legal Systems and Method Lec: Mr.

Oketch-Owiti

Thu 13/4/06

Introduction
- Law is:
o Rules of substance and procedure.
o Institutions: For making & executing laws and for settling disputes.
- The common goal of these rules and institutions is governance of social behavior.
The law intervenes in almost every aspect of our lives, even the very private ones.
- Values and principles.
- It is considered that law is not supernatural.
- Laws are as a result of our social needs and not always as a result of some
spiritual or supernatural need. Even laws that appear to be because of supernatural
or spiritual origin are there because we, as a society, need them.
- The relationships in society may be relations of power and law helps sustain and
encourage these relations. For example, the government exercises power over its
citizens, an employer exercises power over his employees e.t.c. And law
encourages and sustains these relationships.
- Legal method consists of:
o Arguing about or interpreting what the law says in order to determine how
it is to be followed in specific situations.
o Following procedures and orders stipulated in the law.

Part 1: The rise and development of the Kenyan Legal system


- Pre-capitalist social formations:
o Social formation\ Social Economic formation (SEF).
o How society is organized in production and distribution of goods and
services, politics, culture, morality and aesthetics.
- Evolution has occurred through the following stages.
Primitive communalism:
o In this system, recognition in society was based on:
Experience.
Age.
Kinship.
Gender.
Physical and mental ability.
Slavery system:
o The slave was seen as the property of the owner and the owner could do
whatever he wanted to the slave.
o This kind of system never lasts long.
Feudalism System:
o This is kind of a landlord system. The leasers of the land pay for it using
their labor on the landlords land or by giving the landlord a portion of
their produce.
o The leasers/ serfs are an appendage of the landlord. They cannot go away
because they have no other land and also because the rent is so high that
GPR 109 Legal Systems and Method Lec: Mr. Oketch-Owiti

they may be constantly accumulating debt and thus are bound to the
landlord. This can be said to be debt- bondage.
o Apart from the landlords (upper-class) and the serfs (lower class) There
are two other groups of people in this system:
The artisans and craftsmen (lower class). They are the ones who
make the ornaments for the landlords and tools for the serfs.
The merchants (middle class). They connect the landlords to the
artisans and craftsmen by buying the tools and ornaments from
them and selling the goods to the landlords at a profit. The profit
they gain from this business then becomes capital, which he used
to make even more gains e.g. lending money to the artisans or
building workshops for the artisans. These people eventually
evolve into capitalists.
Capitalism:
o Industrial production based on machines, workers, artisans e.t.c.
o It is agreed by analysts that the workers will eventually feel exploited by
this system and revolt against it resulting in communism.
Socialism/ Communism:
o The system consists of even distribution of goods and services and no
classes in the society.
o It is agreed by analysts that there shall be a buffer stage between
capitalism and communism i.e. socialism.
- Major disputes in social formation state law:
o A cephalous society: One that isnt structured according to power. Society
regulated by factors e.g. age, experience.
o Nascent state structures e.g. Wanga kingdom: King Council Regulators
of behavior on behalf of kings.
o Both arguments are correct but: We didnt have both but one.

How communism spread.

Thu 20/4/06

Capitalism
- System of industrial production based on individual ownership of productive
property.
- A social economic system with industrial production, private ownership and
control of production & distribution of property, goods and services.

History of capitalism in Kenya


- Around the 2nd Half of 19th Century, capitalism had evolved within the western
powers, resulting in monopolist capitalist associations: Firms.
- This led to monopoly competitions. It started with races for acquisition of the
newest technologies, which lead to races for acquisition of raw materials, then
labor and then marked.
GPR 109 Legal Systems and Method Lec: Mr. Oketch-Owiti

- Raw materials, labor and market eventually became scarce and this resulted in a
need to search for new sources e.g. by buying labor and raw materials from
outside and looking for goods outside as well. The mood was tense as these
monopolies battled for these sources, which were also becoming scarce.
- In 1885, the Berlin conference occurred ant this was followed by the scramble for
Africa. Scholars have since argued that colonialism of Africa was the only logical
consequence of capitalism and that no matter where a capitalist system is begun it
will eventually lead to a need to colonize new lands. The monopolies had placed a
lot of pressure on the governments and the governments had no choice but to find
new markets and new sources of labor and raw material.

- Vladimir Illych Lenin

- So the scramble ensued and Britain picked Egypt because of its investments there.
It also picked Uganda, which contained Lake Victoria, the source of the Nile. And
since Uganda was landlocked, it picked Kenya so that there could be easy access
to the sea.
- A charter to take over the African colonies was given to Imperial British East
Africa Company (IBEACo.) owned by Sir William McKimon. They arrived in
1888 and:
o Established an administration.
o Establish transport: Railway.
o Establish economic liability.
- They identified leaders and signed treaties on behalf of Britain. In cases where
this didnt work, they used force e.g. burning down homes and taking over the
land when the owners fled.
- Direct British rule was established in {1897 or 1896 or 1897} because IBEACo.
had showed inexperience in dealing with the natives.
- In 1897, British law was made applicable in Kenya and there was importation of
British and Indian laws but also allocation for customary laws to an extent.
- A commissioner was established in East Africa: He made and executed laws and
adjudicated as well.
- The British government also encouraged British people to settle in Kenya. It was
mostly British soldiers who took advantage. Since the land still belonged to the
natives, the settlers were allowed to lease it for 21-year terms with renewal at the
end of the terms. This was seen as unsatisfactory because the settlers didnt feel
that 21 years was enough time to make full use of the land.
- In 1915, a Crown land ordinance was made, declaring that all land in Kenya
belonged to the natives and that all natives were tenants at will (The will of the
landlords. The landlord of course being the Crown.) The natives therefore no
longer owned the land and the settlers could therefore lease the land for as long as
they wanted. The natives were moved to reserves and the settlers were given 999-
year leases. But still, there was a problem of labor on the farms. The natives had
no reason to work on the British farms.
- A hut tax was imposed on the natives. Thus the natives had to get the money,
which they needed to pay the tax. The only way they could be paid was by
GPR 109 Legal Systems and Method Lec: Mr. Oketch-Owiti

working on the British farms. But still, there was a problem: The natives then only
worked until they had enough money to pay the tax and then stopped working
until they needed the money again. This made it hard for the landowners to
establish consistency in the labor they needed on their farms. The colonial
government tried to raise the taxes but still the native only worked until he had
enough.
- A criminalisation law was put in place, therefore, if a native left his job or
convinced another native to leave his job, he or she would be arrested. Therefore,
natives stayed at work for fear of being arrested.
- Later on, an executive council and a legislative council were established to assist
the governor. This was the beginning of parliament in Kenya.
- In 1952, the state of emergency was declared and the British started to realize that
the natives required more representation in government. They started to alter the
Kenyan constitution to allow for more native representation:
o Lytteton constitution (1954): Allowed fairer representation of the natives
and Indians.
o Lennox Boyd constitution (1958): Equal representation between the
natives and the British.
o McLeod constitution (1960): Even more native representation.
- In 1961, the Lancaster negotiations were made. This resulted in Kenyas
independence.
- In 1963, the 1st elections as an independent nation were held: KANU defeated
KADU, Kenyatta becomes president, Moi defects to KANU, beginning of
destruction of regional governments (Majimboism) which had just been put in
place.
- Nothing much between 1966 and now has changed.

Capital foundations of our system


-

Thu 27/4/06

Quest for a new constitution


- The colonial system was basically capitalist. Nothing has changed about this. So
the state we have today of Kenya is a reflection of the capitalist state started
initially in Kenya by the colonialists.
- In a capitalist state the economic classes are determined by:
o What kind of production they engage in.
o The extent of their control over the production.
o The psychological status of the people (do they know that they belong to
the class?)

Peasantry
- They control or have access to simple means of production e.g. land and simple
tools (pangas and jembes e.t.c.) If one owns a tractor, it can be assumed that he is
not a peasant because a tractor is not a simple tool.
GPR 109 Legal Systems and Method Lec: Mr. Oketch-Owiti

- The labor they use is either their own or their families or from their social group.
- Much of their production is for their own consumption i.e. subsistence. Very little
is used fro commercial activity and in any case, it is used just to exchange for
something they dont have e.g. a maize farmer will exchange maize for meat e.t.c.
- This group is the majority in Kenya.

Working class
- They have living labor.
- They dont own a means of production on which they can exercise this living
labor that they own. Thus they offer the labor they have to those who want and
can afford it. This labor they offer is also defined as free labor. Not because it is
given for free but because:
o Anyone who can afford it can buy it.
o The person who is offering it doesnt have an area of production.
- In order for this group to subsist, they must find someone who is willing to buy
the labor.

Working people
- This is composed of the peasantry and the working class.
- In Kenya, it is often the case that peasantry subsidizes the existence of the
working class and vice versa. If the peasants land decreases, the number of the
working class decreases and if the working classes labor opportunities decrease,
the number of the peasantry decreases. The relationship between the two classes is
so complicated that it is hard to draw the line between the two and distinguish
between them.

Proletariat
- People who sell their labor to survive.

Middle class
- Divided into:
o Lower middle class.
o Upper middle class (petty bourgeoisie)
- The middle class oil the wheels of capitalism they are the educated experts e.g
doctors, lawyers e.t.c.

Upper class (bourgeoisie)


- They control and own the production means.
- They are either international or national capitalists or idle, predatory people who
benefit from corruption or politics e.t.c.

Fringe class (found between working people and the middle class)
- These are the artisans and the crafts people. They make tools for the peasants and
workers and jewels and decorations for the middle class.
- They suffer from the same problems as the working people i.e.
underdevelopment, poverty e.t.c.
GPR 109 Legal Systems and Method Lec: Mr. Oketch-Owiti

- A large number of the populations in most countries are employed in this type of
class.

Part II: The Kenya Legal System


- This is about both the law and the institutions concerned with it, how they operate
and what their roles are e.t.c.
- What is law?
o Regulations that govern people and that are created by the state. Law is
not law until it is recognized by the state.

S.M. Otieno case


Decision: Any male luo who dies outside his ancestral land is to be buried
in his ancestral home.

- What is the major purpose of law?


o To regulate the behavior of society.

- Note:
o The word sanction has two meanings:
To give authority to.
To punish/ regulate/ restrict.
o When we say that the government sanctions laws, we obviously mean the
former meaning of sanction and not the latter.

- Formal sources of the law- Section 3 of the Judicature act.


- Sources of rules:
o Natural environment.
o Primary relationships.
o Production (economic) relationships.
o Power relationships.
o Socio- cultural relationships.
o Moral Ethical relationships.
o Aesthetics.

Group work
Group 1: 4.0
Group 2: 5.0 & 9.0
Group 3: 6.0
Group 4: 7.0
Group 5: 8.0

Thu 11/5/06

Formal Sources of Law


- These are places where our law says that we can get the laws that are to be
applied in this country e.g. acts of parliament.
GPR 109 Legal Systems and Method Lec: Mr. Oketch-Owiti

o Section 3 of the Judicature Act (1967) says the High Courts of Kenya and
all other courts shall be guided by.
Statutes
Other laws
Common law and equity
Customary law
Islamic law
o Section 65 of the constitution
o Section 5 of the Kadhis courts act.

Classification of law
- There is no agreed way of classifying the laws of any country. The following are
examples.
International/ Municipal
- International law governs the relationships between one state and another,
between a citizen of one state and another and between a citizen of one state and
the citizen of another state. This can be subdivided into two more types:
o Public international law: governs relationships between one state and
another and only some relationships between a citizen of one state and
another state.
o Private international law: governs relationships between a citizen of one
state and another state and between a citizen of one state and a citizen of
another state.

- Theres a 2nd year course known as Conflict of laws but also known as Private
international law.

- Municipal law/ national law governs the relationships within a nation e.g.
between the state (in its public/ private capacity) and its citizen or between
citizens or intrastate bodies. This can also be subdivided into two more types:
o Private municipal law: governs relationships between citizens and some
relations between citizens and the state.
Public/ Private
- Already covered in international/municipal law.

Civil/ Criminal
- There is no real distinction between the two.
- It doesnt help to distinguish between them through the consequences of breaking
them because punitive measures may be given in civil cases and the court may
award damages in criminal cases.

Substantive/ Procedural
- Procedural provides various ways to get a right, privilege and obligation
performed e.g. the procedure of getting land registered, while substantive
provides the actual right, privilege or obligation e.g. the right to vote or get
married.
GPR 109 Legal Systems and Method Lec: Mr. Oketch-Owiti

Statutory/ Non-statutory
- Statutory law is law provided by a statute from parliament.
- Non-statutory law is the opposite.

Legislation
Constitution of Kenya
- Highest law of the land. All other laws are suibject ot it.

Other written laws


- Other laws written by parliament e.g. statutes e.t.c.

Domesticated international laws and conventions


- Developed with day-to-day interactions.
- There are also treaties: multilateral or bilateral agreements that countries make.
- Conventions: Quorum.
- All above become our law if we domesticate them:
o Passing law that mentions the treaty or convention.
o Putting the convention or treaty in a bill and passing it through parliament
(we did this with the childrens act.)

Principal/ Subsidiary
- Principal is one made directly by the countrys legislative body: parliament.
- Subsidiary/designated legislation: made by a body that has been given authority
by parliament.
- Rule of subsidiary/ designated legislation:
o Delegatus non delegare: you cannot delegate without authority of the
parent law.
o The delegate must delegate in the area specified and no other.
o The delegate cant delegate contrarily to the spirit of the parent law.

Substantive/ Procedural
- Already discussed.

Common law
- Common law is only applied where it applies: i.e. where it is relevant.
- Must be a case in which there is no statute.
- Cannot be contrary to the legislation unless the legislation allows.
- Is applied simply though importation to judicature act in 1897.

Equity
- Equity: Justice and fairness.
- Origin: Anyone who feels wronged by the courts appeals to the king: Fountain of
Justice The king appointed an assistant (the chancellor) The kings conscience
to deal with these. The chancellor then asked Where does justice lie? and
created the principles that became doctrine of equity.
GPR 109 Legal Systems and Method Lec: Mr. Oketch-Owiti

- Nowadays there are courts of chansary (chancellor) in England that decide


matters of equity.

Statutes of general application


- Applied generally, made by the British parliament and applied in Kenya:
o Where they are applicable.
o Where there is no Kenyan statute in the area.
o Where made before 12/8/1897

Customary law
- Law created by by the natives of Kenya.
S.M. Otieno
- Applies only where:
o The party/ parties involved are subject to/ affected by it.
o It is not repugnant to justice.
o The matter is personal (marriage, divorce, inheritance, custody of children,
maintenance of children.)

Islamic law

Thu 8/6/06

- Appointments by the president without vetoing.


- Cabinet and creation of ministers (should be done by parliament).
- Kenyatta, Moi and Kibaki have however done this without parliament approval.
- Position of the vice president.
- Attorney General (should be discussed separately from the civil service).
- Auditor general (same)
- Confusion with the ministry of justice and constitutional affairs (i.e. with the
A.G.)
- Encroachment by one arm into functions and powers of the other.
- Subsidiary legislations.
- President: Power to make as many ministries and ministers as he sees fit.
- Judges can be forced to resign.

Judiciary and law in operation


- Courts of appeal.
o Established by parliament. We used to have an East African court of
Appeal but it died with the break up of the EAC in 1977.
o Contained in various legislations: Appellate Jurisdiction act (cap 9) Civil
Procedure act (cap 21) criminal procedure act (cap 75) of laws of Kenya.
o Civil and criminal procedure code set the circumstances in which a
criminal or civil case goes to appeal.
- High court
o Provided for by Section 60 of the Kenya constitution. Presided by the
chief justice who is assisted by Puisne judges.
GPR 109 Legal Systems and Method Lec: Mr. Oketch-Owiti

o Section 247 of the criminal procedure code: The high court can hear an
appeal from all courts except the magistrates court but can hear if it goes
through the resident magistrate.
o High court can hear or interpret the constitution (for such a case, the court
must have no less than 3 judges [the number of judges must be odd]).
o The high court can supervise and discipline subordinate courts and also
orders:
Mandamus issues to any person or administrative body to hear an
appeal that they have disregarded.
Prohibition order to prevent inferior tribunals from infringing on
principals of national justice.
Certiorari Order to have records from proceedings.

Judiciary

Chief Justice
Magistrates
Chairman of tribunals
Prosecutors
Defendants

Chief Justice: Member of the judiciary, appointed by the president (section 61 of the
constitution) presiding judge.
Fuctions
- Oversee the administration of courts.
- Delegates responsibility to magistrates and judges.
- Ushers the president to the seat.
- Initiates tribunal to question the presidents competence and ability to handle the
job.
- Rules and procedure of courts.
- Court fees, renumeration, fees of
- Committee for the appointment of judges and magistrates.

Magistrates
- Chief magistrate
- Retires at 57 years.
- Subordinate to judges.

Assessors
- Give expert opinion in matters of technical field.
- Between the ages of 21 and 65 years.
- Called to give expert opinion, which may not bind decision.

Juries
- Called upon to give a verdict.
- Must be capable of offering.
GPR 109 Legal Systems and Method Lec: Mr. Oketch-Owiti

- The jury system is not followed in Kenya.

Chairman of tribunal
- Make sure that decisions made are filed with documents produced before trial.
- Appointed by relevant minister, district commissioners.

Plaintiffs
- Defendants People to whom the plaintiff seeks redress from.
- Prosecutors.
- Witnesses
o Expert witnesses: Due to expertise or experience, can give opinion (to a
degree of accuracy) on an issue that occurred.
o Lay witnesses
o Attesting or subscribing witnesses.
o Material witnesses.
o Defense and prosecution witnesses.

Lawyers.
Others: Clerks and registrars.

Judiciary and separation of powers


- Magistrates courts.
- Special courts.

Assesors vs. Juries

Criminal Law
- What is a crime?
o Act or ommision that is defined and made punishable.

Sat 1/7/06

Professional Legal Education


- Education aimed at making one become:
o A lawyer.
o An advocate.
- Objectives of legal education.
o To gain legal knowledge for carrying out the role of a lawyer.
o To provide one with legal skills (adequate information needed to carry out
the specific tasks of law.
- These tasks include:
o Skills in research: Ability to look for information in a structured and
scientific way.
o Communication: The ability to pass on the information form one source to
another.
GPR 109 Legal Systems and Method Lec: Mr. Oketch-Owiti

o To use rules of law or procedure for specific purposes. e.g. what law forms
the basis of a certain right.
- If you dont have the above skills, then legal education has not performed its role.
- Legal education is aimed at enabling one to be a critical thinker being able to
question what phenomenon you see or experience. Things may look one way but
may be different if you are critical. As a lawyer, you are not to take a thing on the
face value; you must be a critical thinker.
- It should induce you with certain social values, attitudes and commitments. It has
been agreed that law should be placed within the social context. Legal rules by
themselves dont make sense, but when put into the social contexts, it does.

Institutions and the process

- Primary and secondary schools:


o Here you learn what is the government structure and how it operates. This
is a limited level of legal knowledge. At times, you dont realize you are
learning the law.
o Also, since law is a reflect of the moral values of society, your parents
may be teaching you about law by instilling moral values such as dont
steal into you.
- Tertiary education
o You may find that if you are doing some law in a certificate e.g.
accounting, there are levels of law that you have learnt e.g. constitutional,
legal systems, commercial law.
- University and graduate & post-graduate programmes
o You may take some courses in which you do law e.g. commerce,
architecture, engineering e.t.c.
o But the major avenue for getting professional skills for law is by going for
a law degree.
- Post-university
o e.g. Kenya school of law.

The role of a lawyer in society


- You have to think of the socio-economic context in which the lawyer lives in
order to know what role the lawyer has e.g. in Sudan or Somalia there is no
structure which enables one to practice law and therefore the lawyer may have no
role to play. There are no assumptions that these roles will be played in those
social contexts.
o Advise: Giving somebody adequate legal information to be able to sort out
a legal problem. It may be a problem that is hypothetical and not even
existing but the lawyer may in such a case be of assistance anyway by
telling people how it can be solved.
o Negotiations: getting people who are at different points to get together and
agree on certain points. A way in which you help people who may want to
exchange things may be to do so e.g. land selling.
GPR 109 Legal Systems and Method Lec: Mr. Oketch-Owiti

o Conciliation: Where people are disagreeing, you get them to sort it out in
an amicable manner. You create a more positive relationship between the
people so that the disagreement may not give rise to conflict.
o Litigation and advocacy: Advocacy includes representation in courts and
negotiating on behalf of a client. Representation for the interest of a client
constitutes the most important role of a lawyer.
o Arbitration: This is making of a decision that is binding on two parties
actions in a quasi-judicial capacity. It is different from conciliation where
in cons have to agree to it. In conciliation, you dont have to decide for the
parties but they decide for themselves.
o Judging: Lawyers can be judges, magistrates, presiding officers e.t.c. in
legal institutions. It is a role you play in the context of a specific rule of
law. e.g. judges play their role within the context of section.
o Participation in social change: developing the law, legal procedures and
legal institutions e.g. contributing to changes in improving a law by being
a member of parliament or an advocate for a particular cause. Contributing
in social change by changing peoples attitudes.

Requirements
- General Knowledge:
o Knowledge about society and nature e.g. even as a lawyer one may engage
in forensic science or any other science with the aim of answering legal
questions e.g. forensic medicine using medicine education to solve legal
issues. One must however be able to know the interconnection between
the law and a certain legal problem.
o e.g. you may be dealing with a case of someone who has a psychiatric
problem you will have to know that the client may need a counselor.
- General legal knowledge:
o The ability to use rules of law, procedures and institutions to identify and
solve a legal problem.
o The ability to identify and assimilate fact. Practicing the law is about
applying the law to alleged facts. The court determines whether the facts
are true or not.
Facts: what a court of law has decided as being a fact.
Alleged facts: what the client [or lawyer] claims.
o The ability to listen to your client and be able to differentiate facts from
alleged facts.
- Professional skills, values and attitudes:
o Professional skills are skills to be able to understand, communicate and
use rules of law and procedure to solve legal problems.
o Values are professional ethics that should guide a lawyer in terms of
morality.
- Ability to engage in logical thinking:
o The area of law requires logical thinking and you ought to be able to
organize things in a logical manner since the law involves arguments and
GPR 109 Legal Systems and Method Lec: Mr. Oketch-Owiti

counter-arguments. One must also be able to connect the existing facts


with a law and come up with a conclusion that makes sense.
- Social skills:
o These are an ability to understand other people and to relate to them in a
positive way, including advocates who are contesting with your client. e.g.
one must be able to be objective and be able to argue against a lawyer in
court and be friendly with him/ her outside court.
o Social skills are essential because they enable one to develop a working
relationship with other lawyers and to respect one another.
- The ability to be socially responsible and to be committed to change.

Public Legal Awareness and Legal Aid


- Public Legal Awareness: The process through which the ordinary members of the
public are given legal information to be able to deal with their legal problems.
Sometimes, you are told the law for the purposes of obeying it or pursuing your
rights and obligations.
- Importance: Why Public Legal awareness?
o Because we live in a country where the level of general literacy is very
low (very many people dont have formal education). The government
says that the country is 67% literate whilst others have said that only 45%
are literate.
o The amount of information given to you no legal information, even if you
go through the formal education, is very low.
o In Kenya, there is no system through which people get to know the law.
The books may not be easily accessed.
- Existing legal awareness programmes:
o Prog- something org.
o Delivered in:
State
Non-state prog.
o The state has no public legal awareness programme. What we have is a
variety of non-state programmes carried out by non-governmental
organizations, individual companies, advocates or aspiring lawyers.
o In communities, we may have paralegal experts (community based
paralegal workers) people who are trained in certain areas of law to help
the community e.g. give legal advise, refer people to advocates and draft
documents.
o Therefore, a majority of legal awareness programs are run by NGOs.
- The future of public legal awareness:
o It appears that we will eventually have a state managed legal education
programme.
o The institution of paralegal workers being accepted formally.
o A merger between the programme carried out by the NGOs and the
government.
- Legal aid and representation
GPR 109 Legal Systems and Method Lec: Mr. Oketch-Owiti

o Legal Aid is any process through which a person with adequate legal
knowledge gives assistance to somebody. Either Pro-bono: Free of change
literally or subsidiary.
Legal advice: Giving somebody assistance with legal information.
Legal representation: Acting on behalf of someone else to solve a
legal problem.
- State legal aid system.
o In Kenya we dont have them, but we have three types of legal aids:
For a civil legal problem, if one is a pauper (i.e. has no adequate
resources to go to court) he/ she can apply to a court of law to
allow a civil case to be heard as a pauper. The court will waive the
civil fees that the person was to pay (Civil Act).
For a criminal Case, one can be represented as a pauper. The
registrar of the High court established the list of advocates who are
able to accept to represent paupers [the paupers briefs system].
For a capital offence other than robbery with violence. One can be
given an advocate at the expense of the state if he/she cannot pay.
Cap 5 of the Constitution.

Access to Justice: Small Claims Courts and Courts of Petty Sessions

- Part One: Introduction


- Part Two: The Justice System: Challenges
- Part Three: Small Claims Courts: What Are They?
- Part Four: Small Claims Courts in Kenya: Some Suggestions
- Part Five: Courts of Petty Sessions
- Some sources

Introduction
The Debate: Access to Justice
The Issue
Inability of many citizens to use the justice system
The idea of access to justice as a solution

Access to Justice: The Concept


No agreement on the meaning of the concept
The extent to which citizens can expediently, cheaply and adequately use the justice
system to resolve socio-legal issues, problems or challenges

Access to Justice: Components I


Legally literate/knowledgeable citizens
Protection and easy affirmation of citizens rights through law and dispute resolution
processes
Existence of fair laws in content and results
GPR 109 Legal Systems and Method Lec: Mr. Oketch-Owiti

Accessibility of laws to the citizens


In form
In language
Physically
Access to Justice: Components II
The judicial form

Availability of a variety of dispute resolution mechanisms


Availability of easily accessible dispute resolution mechanisms
Simple and cheap procedures
Access to Justice: Calls I
Democratic laws
Simplification of the language of the law
Public legal education and awareness
Simplification of procedures and pleadings
Provision of simplified judicial proformas in ordinary courts
Access to Justice: Calls II
Re-education and re-training of judicial personnel
Reduction of bureaucracy
Reduction of corruption
Provision of judicial education
Expansion of legal aid and assistance
Establishment of alternative avenues for dispute resolution
Part Two

The Justice System: Challenges


The system I
An adversarial system that treats unequal citizens as if they are equal
Physically inaccessible statute books
Law written in English and technical language
Quantitative inadequacy of judicial institutions
Physical distances to judicial institutions

The system II
Solemn and intimidating environment within judicial institutions
Complex procedures and documentation requiring use of advocates
High expenses in use of judicial institutions
High expenses in use of advocates
Concentration of advocates in urban areas
The system III
Corruption and inefficiency
Inadequacy in training of judicial personnel: orientation to formalism
Marginalisation of certain sections of the citizenry: women, children, persons with
disabilities and HIV+ persons
The Citizens
GPR 109 Legal Systems and Method Lec: Mr. Oketch-Owiti

Poverty and inadequacy of resources


General illiteracy
Legal illiteracy
Negative attitudes towards judicial institutions
Fear
Awe
Disrespect
Justice for sale

Facing the challenges I: Civil Society


General civic education
Legal education and awareness
Legal aid, advice and representation
Pro bono services by advocates
Encouragement of ADR mechanisms
Arbitration (voluntary or contractual)
Mediation
Conciliation

Facing the challenges II: The State


Pauper briefs
Legal representation in capital cases
Improving efficiency
Reducing corruption
Specialisation of judicial institutions
Increasing judicial personnel
General judicial reform: National Legal Aid Scheme and GJLOS
ADR and Small Claims Courts

Small Claims Courts: What Are They?


Definition I
Courts which deal with actions considered to be of small value
Small value dependent on the level of incomes within each economy
South Africa: R3 000
Canada: $3 000 $10 000
USA: $2 500 - $15 000
Value can be reduced to fit the jurisdiction
Definition II
Court could be:
Specially established courts (e.g., South Africa)
Magistrates Courts with a small claims jurisdiction (e.g., Georgia, USA)
Judges with small claims docket (e.g., Missouri and Utah, USA)
Special pro tempore (temporary) judges (e.g., Utah, USA)

General Attributes I
Simple
GPR 109 Legal Systems and Method Lec: Mr. Oketch-Owiti

Efficient
Inexpensive/cheap
Fast/quick
User-friendly
Comparatively informal
Flexible timing: evenings, weekends
General Attributes II
Exclusion of juristic persons (companies, corporations or associations) as plaintiffs in
some jurisdictions
Inquisitorial rather than adversarial
Do not follow normal rules of evidence
Representation by lawyers not allowed in most jurisdictions
General Attributes III
Procedures highly truncated and simplified I
No juries, in jurisdictions with such
Simplified, plain language forms for pleadings
Statement of defence not necessary, only acknowledgement of service and appearance in
court
No preliminary objections
No cross-examination between the parties, except where court accepts special request

General Attributes IV
Procedures highly truncated and simplified II
Quick disposal
In some jurisdictions, no appeals, save for defendants and plaintiffs who lose counter-
claims, and trial de novo
Courts ordinarily assist parties with advice on procedure, drafting of documents and
filling of forms

Requirements I
Claimant should demand payment from defendant prior to filing claim
Claimant should show that the defendant has failed or refused to pay
Claim should be filed at the relevant court
Claim should indicate the basic details
Necessary filing fees should be paid, unless the position is otherwise
Requirements II
The defendant has to be notified and a return of service filed
The parties must present their evidence in court, whether through documents or witnesses
Hearings must be held to dispose of the claim
Judgment must be entered
Some limitations I
Matters excluded from jurisdiction
Limitations on who can be plaintiff
State cannot be a defendant in most jurisdictions
GPR 109 Legal Systems and Method Lec: Mr. Oketch-Owiti

Limited damages both in amount and variety

Some limitations II
No or little opportunity to examine documents and cross-examine
Limited rights of appeal
Little precedential value in judgment

Small Claims Courts in Kenya: Some Suggestions


Constitutional and Policy Basis
Constitution of Kenya
Section 65 empowers Parliament to establish courts subordinate to the High Court
But no direct duty on the State to provide legal assistance in civil cases
Policy basis
Poverty Reduction Strategy Paper
Governance, Justice, Law and Order Sector (GJLOS) Reform Programme

Which Type?
Existing courts/personnel designated as Small Claims Courts/personnel?: Basic
Challenges
Formalised structure
Formalised and long procedures
Formal orientation of personnel
Specially established Small Claims Courts?
Potential for structuring institutions
Potential for structuring procedures
Potential for re-orienting personnel
Personnel
Presiding personnel
Judge, Magistrate, Commissioner, Arbitrator, Mediator, Conciliator?
One person or panel?
Other personnel
Court clerk
Court Interpreter
Public Advisor
Registry personnel

Potential Parties
Who should claim: All accessibility victims of the existing formal system?
Who should claims be made against: Everybody, including the State?
Limitation of maximum damages: How much?
Socio-economic status of claimants or defendants?
Physical proximity to claimants?

Procedure
Special procedural rules: General considerations
Avoidance of formal procedures
GPR 109 Legal Systems and Method Lec: Mr. Oketch-Owiti

Simplification of procedures and provision of proforma documents


Flexibility/informality and fairness
Inexpensiveness/cheapness
Restriction of advocates appearance
Inquisitorial rather than adversarial?

Courts of Petty Sessions


Nature
A court of summary jurisdiction
Sessional (on circuit)
No jury or assessors where these exist
Not held by a judge
Known as Magistrates Court in some cases
Civil and criminal jurisdiction, but mainly criminal
Petty largely based on:
Type of offences: Minor
Level of sentence: Generally less than 2 years
Examples: Jamaica, Tasmania, Island of Norfolk, Belgium, Australia
Personnel
Presiding personnel: Magistrate or Justice of the Peace who may or may not be a lawyer
Clerk of Petty Sessions or judicial support officer as administrator
Orderly
Others:
Interpreters
Registry clerks
Jurisdiction
Geographical: Area designated for the session
Offences: determined by law, but minor
Penalties: determined by law based on the offences
Procedure I
Process largely similar to normal proceedings, except for the absence of juries or
assessors
No committal proceedings
Process started through:
An information: a statement informing a justice that an offence has been committed and
giving details
A complaint to a justice
A warrant to apprehend or arrest
Plea
Bail or custody
Procedure II
Hearing
Representation by lawyer or friend permitted
In open court
GPR 109 Legal Systems and Method Lec: Mr. Oketch-Owiti

Evidence taken on oath and recorded


Case or no case to answer
Evidence by accused if s/he decides
Court convicts, dismisses the information or gives some other order
Orders for costs or compensation permitted
Penalties: fines, imprisonment, forfeiture
Court may punish for contempt in the face of the court
Appeals permitted

Some Sources
http://www.rolandholaw.com
http://www.lawguru.com
http://law.freeadvice.com
http://www.nccreditunion.org
http://www.halt.org
http://www.doj.gov.za
http://www.prairielaw.com
http://www.autosafety.org
http://www.lasnet.com
http://www.atlantainjurylawyer.com
http://www.web.uct.ac.za
http://www.etax.byu.edu