12th March 2013

INTRODUCTION TO LEGAL WRITING

Words are the dominant tool of trade for lawyers.Nothing of consequence can be done
without use of words.The most important skill that marks out a good lawyer is the ability to
communicate.

Good choice of words + Good piecing together = Effective communication.

A lawyer communicates effectively by using words well to:

 Explain something to a client – put it in a way that client understands.
 Get information from a witness – frame question in the right way.
 Make a point to the court – express it in the most telling (persuasive) way.

All these involve skill in choice of words, order in which they are put and in structure of
sentences, paragraphs and speeches.

There is no difference between spoken word skills and written word skills; only the context
changes.Different words may be used in writing than in speech.Sentence structure may change.

The need for clarity and precision in what one says remains unchanged.In drafting, there is
need for clarity and non-ambiguity in what one writes.This exceeds what is required in any
other context.

Qualities of Good Writing

1. Making choices

Everything in final version must be there because you intend it to be.

Nothing should be in it by accident.
What you end up with should be exactly what you want.
Every word used should be there because you have chosen to use it and not any other.
Sentences and paragraphs should be composed as you have designed them.
You can only write well by making choices.
Never simply write down the first thing that comes to mind without critical examination.

2. Clarity

Good writing = Total clarity.

Meaning should spring instantly from the words.
The purpose of writing is to clarify that which would otherwise be unclear, for example, a legal
opinion.
Clarity of expression cannot be achieved without clarity of thought.
If you are not clear in your mind what you want to say, you will not be any better in your
writing.
Don’t write anything without first carefully thinking about it.
All writing must be planned and thought through.

3. Logical structure

Clarity not only depends on choice of words and word order but also on the structure of what is
being written.
The whole piece of writing needs to be composed in a clear and coherent manner. This means
the structure should be logical.
Whatever one wants to say can be broken into smaller pieces of content.
You cannot make a point without explaining it.
You cannot write an opinion without giving reasons for it. The process needs to be logical.
Therefore, the reasons you give must lead to the conclusion you express.
The reasoning process is a series of small links in a logical chain.Each link must be placed in the
right order and connected correctly to the other links.
This involves logical thought, logical explanation and logical structure to what is written.
Writing that has this structure is easy to read, is clear and compelling in its persuasiveness.

4. Spelling

Good writing should be free from spelling errors.

Spelling errors make you look unprofessional.
Take all reasonable steps to eliminate them.
Of professional importance is to spell names correctly.

5. Grammar

Writing should be free from grammatical errors.

The rules of grammar dictate word form, word order and sentence structure.
Therefore, verbs must be in correct tense, adverbs in the correct place and sentences properly
composed.
If this is not the case, the writing will be obscure.
Writing cannot be clear if it is not grammatical.
 6. Punctuation

Good writing must be properly punctuated.

Punctuation is crucial to the meaning of a legal document.
Take care to use full stops, commas, semicolons and colons properly and in the right places.
The sense of a sentence can be destroyed by a comma in the wrong place or lack of one where
it is needed.
A full stop in the wrong place can spoil the connection between two linked thoughts and result
in a sentence with no main verb.
Do not open a bracket and then fail to close it.
Take care of punctuation when drafting.
The choice of punctuation marks is just as important to drafting as is choice of words.

7. Precision

Everything written should say what the writer intends.

Do not express your thoughts in a vague or generalized way.
Words chosen must be chosen for the precise meaning.

8. Non-ambiguity

Words may be used which mean precisely what we intend, but which are capable of having
another meaning if looked at in a different context. In legal writing, be aware of all the different
contexts from which your words may be seen.

9. Conciseness

Good writing is concise.It should be succinct and straight to the point.

Avoid repetition, long windedness or digression.
Leave out that which is unnecessary or obstructs flow of meaning.
A good piece of writing should not be a word longer than it needs to. Beware of trying to be too
concise.
If what you are writing becomes a mere summary, that will not do. Clarity is more important
than brevity.
Ideas are at times more concisely expressed in 20 words than in 10.

10. Completeness

This is the quality that must be balanced with conciseness.

Writing must express the writer’s ideas completely. If it only partially expresses those ideas, it is
incomplete.If it does not express the writer’s ideas fully – step by step – it is incomplete.
Where to draw the line between completeness and conciseness is a matter of fine judgment.
Always be aware of the balance that has to be achieved between the two in a good piece of
writing.

11. Elegance

A good piece must be well written.

Elegant writing comes with practice.
Avoid clumsy phrases, tortuous constructions and jarring words.
Elegance has to do with flow and rhythm.

12. Shorter Sentences

Long sentences make legal writing hard to understand.

They cause the author to distort the logical order of the information he is trying to convey.
They strain a reader’s memory.
The remedy is, for example, instead of using one long sentence containing five thoughts; use
five sentences, each containing one thought.

Two-art guide to clarity and ease of understanding in legal writing:

 In most sentences, put only one main thought.
 Keep the average sentence length below 25 words.

If you have to write a long sentence, make sure that it is not vague and is easy to understand

Always draft in the singular.

A drafter should state a rule or category directly rather that the rule or category by stating its
exceptions.

Examples:

Do not write: All persons except those eighteen years or older….

Write: Each person under eighteen years of age…

When exceptions are used, the rule or category should be stated first before the exception.

Do not write: Draftaria, Transyivania must upgrade

Write: Each state except Draftaria and Transylvania must upgrade.

PLAIN ENGLISH
Plain English simply means English that is clear and well written.
The narrow meaning of plain English is that it is an alternative to obscure legalistic jargon
(legalese).
It is the use of straight forward language which conveys meaning clearly and simply.

The language of the law is complex. It is replete with technical terms and convolutions.
These faults have over time been noted by judges, practicing and academic lawyer and a move
has been to simple and plain language.

Legal language is largely unintelligible to most members of society.

In many cases, obscurity arises from complexity of the law and its subject matter. In other
cases, lawyers do not take care to communicate clearly with their audience.

What is the problem with legal language?

1. Many legal documents are lengthy, over-written, self-conscious and repetitive.

2. They consist of lengthy sentences and involved sentence construction.
3. They are poorly structured and designed.
4. They suffer from elaborate and often unnecessary cross-referencing.
5. They retain archaic phrases.
6. They use supposedly technical terms, foreign words and phrases.
7. They are unintelligible to the ordinary reader.

Thursday, 1st August, 2013

Question 1 (b) Is there a contemporary problem with the

language of the law? Justify your answer with reasons and
practical examples. (10 marks)

What is being done to promote plain English?

The legal establishment is becoming increasingly aware of the need to write in plain
English.Increasingly, court orders, standard forms and regulations are being drafted in plain
English.

Major revolution in England: Civil Procedure Rules, 1998 – were all drafted in plain English –
specially designed to enable a lay person appear in person.
Section 7 of the Unfair Terms in Consumer Contracts Regulations, 1999 provides, – “a seller
shall ensure that any written term of a contract is expressed in plain, intelligible language.

Writing in plain English

The aim is to write concisely and clearly so that the reader easily understands.

What is plain English and the extent to which it is used depends on who the reader is. If the
reader is another lawyer, legal terminology and words may be used. If the reader is a lay man, it
is unwise to use legal jargon. If the readership is mixed, you will need to strike a balance.

Most lawyers are not able to write plainly in their first draft. Why?
The more one writes many drafts, the more one realizes how writing can be made simpler and
clearer.

The more you clarify and simply your words, the more precise and clear the thought behind
them gets – result: plain language.

It takes longer to write plain English than it does legalese.

Basic Rules of plain English

1. Use short sentences:

Generally, a sentence of 25 words or less is short.

Try to write for the most part in short sentences.
This is achieved by expressing only one thought in each sentence.
Do not go out of the way to avoid long sentences where they are appropriate.
Good and elegant writing requires that sentences vary in length rather than all having about
same number of words.

2. Use correct grammar and punctuation:

Use of bad grammar means lack of clarity.

Always read through the sentences – try to phrase them as you would if speaking.

Punctuation is important as meaning can be lost if not used properly.Punctuation is crucial to

plain English since it is part of the structure and clarity of sentences. You can identify need for
punctuation marks or need to remove them if you speak or think your sentence through aloud.

3. Use everyday English:

There is a place for legal terminology and a time to avoid it.
Jargon and technical terms should be avoided whenever possible.
There are many and perfectly clear alternatives to jargon.
Only occasionally is the technical term the only suitable word.
Legalese at its worst uses obscure and archaic words not used in everyday English.
There is no excuse for such obscurity or archaism in legal writing.

4. Use simple structures:

Avoid putting an idea in a complicated way when it can be put in a simpler one.
Everything you write at first attempt can be put more simply and in fewer words.
Avoid compound structures which use three or four words to express a concept, double
negatives and the passive voice.This is not an absolute rule. Occasionally they may carry some
precision which the alternative does not.
Avoid word-wasting idioms – “in the region of” (about); “the fact that it was raining” (since it
was raining).
Get rid of redundant words; (for example, ‘null and void’…etcetera).

Question 1 (a); Thursday, 17th November 2011:

One of the major problems with lawyers is the inability or

refusal to write in plain English. They use arcane phrases to
express common place ideas. Word-wasting idioms are a good
example of this. What are word-wasting idioms and how do they
affect the quality of written communication? (5 marks)

Thursday, 17th November 2011:

Question 1 (b); Edit the following sentences to omit word-
wasting idioms [sentences given] (10 marks)

5. Use first and second person:

It is generally clearer to use the terms “I” and “you” rather than the third person.
In opinion writing however, certain formalities do not allow the use of the first or second
person.
But: never be impersonal when you can be personal.

6. Arrange words with care:

A lot of poor English can be improved by simply changing the arrangement of words and
phrases. When clauses are put in good order the meaning of a sentence becomes clearer.
Always arrange your material in a way that the reader is assisted through it and it is easy to
absorb. If the reader has to stop and re-read, then the work is not written in plain English.

7. Use a good layout:

Although lawyers mostly write in conventional paragraphs, on occasions it may be wise to write
in numbered paragraphs, clauses and sub-clauses. If these are well marked, they will be easier
to read.
Conventional paragraphs are also easier to read if they are numbered and sub-titled.
Several short paragraphs are easier to read than a few long ones.

Question 1 (a); Thursday, 19th July, 2012

Discuss the origin and use of plain English as a technique in legal
writing. [6 marks]

Question 2 (a); Thursday, 21st July 2011

Discuss the use of plain English in legal writing.

Question 1 (a); August/September 2010

Discuss the origin and use of plain English as a technique in legal
writing. (6 marks)

Question 1 (a); December, 2008

Identify (two) flaws (in the structure of the passage) which are
inconsistent with the characteristic of good writing and writing
in plain English. (5 marks)

Characteristics of legalese
1. Use of archaic words
2. Use of Latin words
3. Use a lot of formalism
4. Using a lot of redundancies
5. Very long sentences
6. Use of a lot weak passive words
7. Unnecessary long words and phrases

Thursday, 1st August, 2013

Question 1 (a) Describe the language of the law (5 marks)

Thursday, 15th November, 2012

Question 1 (a) What is legalese? (2 marks)
Characteristics of plain English in Legal Writing
1. Avoids archaic words.

Do not use lawyerisms. Lawyerisms are words like: aforementioned, said, res gestae, res
gestae, and hereinafter. Don’t be too impressed by Latin and archaic English words you read in
law books. When you are about to use a lawyerisms, see if your meaning can be expressed as
well or better in a word or two of ordinary English.

2. Uses normal English words used in day to day communication

3. Uses active voice and not passive voice
4. Omits surplus words
5. Avoids compound constructions.

Compound constructions use three or four words to do the work of one or two words.

Examples: ‘at that point in time’ use ‘then’

‘by means of’ use ‘by’

6. Avoids word wasting idioms.

Word wasting idioms create verbosity.

Many word-wasting idioms can be trimmed from your sentences with no loss of meaning.

Examples: The fact that the defendant was young may have influenced the jury.
Here is a better way to say it. The defendant’s youth may have influenced the jury.

The fact that she died Her death

He was aware of the fact that He knew

Words like case, instance, and situation spawn verbosity

7. Avoids redundant legal phrases.

Great example of a redundant legal phrase is null and void. This phrase is an example of
coupled synonyms- a pair or string of words with the same or nearly the same meaning.

More examples include: alter or change, last will and testament, confessed and acknowledged,
made and entered into; convey, transfer, and set over; order and direct.

Many of these coupled words have ancient roots. The redundant doubling was sometimes used
for clarity, sometimes for emphasis, and sometimes just because it was the literary fashion.
Term of art- a short expression that conveys a fairly well-agreed meaning and saves the many
words that would otherwise be needed to convey that meaning.

8. Avoids gender insensitive language

Thursday, 15th November, 2012

Question 1 (b) What is the impact of plain English

in Legal Writing and Drafting? (3 marks)

How to spot bad construction

Working words

Working words carry the meaning of the sentence. The glue words hold the working words
together to form a proper, grammatical sentence. When you find too many glue words in a
sentence, take it apartand reshape the pieces to fit together tighter.

Illustration:
A trial by jury was requested by the defendant. (Too many glue words, revise it to read as
follows)
The defendant requested a jury trial.

Focus on the actor, the action, and the object

One way to remedy a wordy, fogbound sentence is to ask: “Who is doing what to whom in this
sentence?” Then rewrite the sentence to focus on those three key elements- the actor, the
action, and the object of the action.

Sentences should be written to focus on the actor, the action, and the object.

Be alert when you find a sentence or clause that begins with ‘it’ or ‘there’, followed by a form of
the verb ‘to be’. Does the ‘it’ or ‘there’ refer to something specific? If not, you may be wasting
words.

EFFECTIVE WRITING
Legal writing relies on organizational patterns and traditional ways of organizing ideas.

Decisions of the legal writer must depend on the reader, the purpose of the writing, and
conventions of the type of document being written.

Legal writing differs from other types of writing because it is formal.

Due to its formal nature, legal writing avoids:
 First person pronouns.
 Contractions.
 Abbreviations in text.
 Idiomatic phrases.
 Slang.
THE PSYCHOLOGY OF WRITING
Writing, like all skills becomes an easier task with experience.
Experience helps identify the stumbling blocks to writing and how to overcome them.

The research phase of writing is usually easy to many people.

The first stumbling block is moving from research to writing.

Writing at the very last point has risk of desperation and the product being really a rough draft.

By delaying the writing process – one compromiseson quality drafting, revising, editing and
proofreading.This can be overcome by developing a schedule for completion of the document.

In the schedule, provide reasonable time to complete the research: do not delay when to begin
writing.

Give yourself deadlines for:

 Completing an outline.
 Producing a first draft.
 Revising.
 Editing.
 Proofreading.

In addition to the schedule, it helps if research notes are organized in a way that facilitates
writing.
Organize research around the law or points you want to make. Under each point, list the
statutes, cases or authorities on which you rely and a quick summary of how they support your
point.

Question 1 (b; Thursday, 4th November 2010

Discuss the psychology of writing and analyze how it plays a key

role in the writing life of an Advocate in Kenya (10 marks)

Outlines and writing plans

For legal writing, create an outline or a writing plan at the outset to save time.

An outline or plan prevents back-tracking, repetition and missing of key points.

Techniques of outline or plan writing

 1. Read through all your research.
2. Don’t overlook obvious ways of organizing.
3. Talk to a colleague.
4. Consider the reader and purpose.

Drafting the document

Techniques in drafting the document

1. Optimum writing conditions
2. Write what you know best first
3. Take one step at a time

Revising
Revision – “see again”.
Step back from the project and give it a new look.
Rethink the whole document not just small bits like sentence structure.
Develop a revision checklist. Checklist helps focus on the large issues of writing.

Model revision checklist:

 Will document meet reader’s needs?
 Is the tone right for the document and the reader?
 Is the document well organized?
 Are the ideas well developed?
 Is the analysis conclusive or superficial?
 What else could be included?
 What can be omitted?
 Is the theme evident in all sections of the document?When revising rethink the
organization of your work.Read each paragraph and sum up the point it makes.
 Are there repetitions? Is any information missing? Etcetera
 Do a self critique
 Can you punch holes in the document? Where?
 What are its weaknesses?

Then return to the document and improve it.

Check for unity and coherence.

Entire document, each paragraph and section must have coherence and unity.
Unity: every part of the document contributes to the overall thesis (conclusion).
Coherence is crucial both at document and paragraph level.

Good revision strategy – check both levels: are you using appropriate devices for creating
coherence.
These devices are:
 Logical organization: chronology, topical, general to specific, specific to general, IRAC
 Roadmaps
 Signposts
 Repetitions

Editing

This is an examination of the smaller issues in writing.

Step out of the role of the drafter.

Look at the writing with a critical eye.
Look at: sentence structure, word choice.
Pay attention to the subjects and verbs in sentences.
Make extra effort to edit for precision and conciseness.
Look out for sloppy word choice and unnecessary verbiage.

Proof reading

Responsibility for final product lies with the writer. Fault for missed words, format problems or
typographical errors lies with the writer. Proof-reading is therefore essential.

Proof-reading is not the same as revising or editing.

Proof-reading – is reading for errors. It must therefore be done at slowest reading rates.

Proof-read at a completely different time from revising and editing.

Proof-read all parts of the document:

 Headings.
 Charts.
 Captions.
 Footnotes.

Double check all dates, figures and spellings.

Strategies for effective editing and proof-reading

  Produce a first draft.
 Distance yourself from the draft.
 Edit from a hard copy.
 Do not edit and proof-read at the same time.
 Edit and proof-read in stages.
 Pin-point specific weaknesses in your writing.
 Read your draft once for each of these weaknesses.
 When proof-reading, you can use spell check: But do not rely on it to capture all spelling
errors.
 Label your drafts carefully.

General principles for effective writing

 Good writing is effective communication.

 Remember your audience.
 Remember your purpose.
 Follow expected format of document.
 Professionalism and competence are reflected in both content and presentation of
writing.

Question 4; Thursday, 19th July 2012

Discuss the fundamental principles of legal drafting. (5
marks)

Question 3 (a); August/September 2010

Discuss the fundamental principles of legal drafting. (5
marks)

EFFECTIVE PARAGRAPHS
A paragraph is a series of sentences that are organized and coherent and are all related to a
single topic.

A paragraph must support a single idea.

A paragraph points out to the main point in a subdivision of a writing.

Paragraphs may contain different kind of information, for instance it may give a series of
examples, it may give an illustration of a general point, it might describe a place or a character
or a process, it may narrate a series of events, it may compare or contrast two or more things, it
may also classify items into categories, it may describe courses and events.

Every paragraph must have a topic sentence.

A well organized paragraph always develops a single controlling idea, which is known as a topic
sentence. A topic sentence has several functions:

A topic sentence substantiates or supports the thesis statement.

It unifies the content of a paragraph and directs the order of the sentences.

It advices the reader on the subject to be discussed and how the paragraph will discuss that
subject.

Most topic sentences are placed at the beginning of the paragraph. Occasionally it may follow
the sentence paragraph. If this is the case, the paragraph will have started with transitional
sentences.

Function of a paragraph
1. Helps writers organize writing.
2. Helps readers see and understand the organization of the writing.
3. Helps writers stay in control of their writing.
4. They are like boxes in which to sort out information.
5. They make writing a manageable task.
6. Helps readers absorb information in manageable bits.
7. Allows readers see significant groupings of ideas.
8. It is more than a matter of logic and organization. It is also a matter of reader comfort
and aesthetics.

Long paragraphs lose the reader.

Very short paragraphs make writing and the thinking behind it inconsequential.

Paragraphs must be of the right size so that reader follows what writer is saying.

As a significant grouping of sentences, it is a mini-composition on its own with a beginning,

middle and end.

Types of paragraphs
There are two types of paragraphs:
1. A paragraph that narrates a series of events
 2. Paragraphs that give examples.

Paragraph structure and pattern

In terms of structure, a paragraph has three parts and each part of the paragraph has a role to
play:

i. Introduction which captures the topic sentence. It gives a background information or

provides a transition.
ii. Body. It discusses the main idea using facts, arguments, analysis, examples and other
information.
iii. And conclusion is the final part of a paragraph. It summarizes the connections between
the information discussed in the body of the paragraph and the paragraph’s controlling
idea. The conclusion of the paragraph must lead to the final conclusion of the final idea.

A paragraph must be coherent. Each sentence should relate clearly to the topic sentence or
controlling idea. Each sentence must flow smoothly. Sentences should be short. Sentences
must connect new information to the old information. If you reach a part in your paragraph and
the new sentence doesn’t flow with the paragraph, start a new paragraph.

The repeat of key words or phrases. In paragraphs where you have identified ideas or theory,
always be consistent by using the same words or the same phrases which describe the theory
or idea. Create parallel structures in paragraphs. Be consistent in point of view, verb tense and
numbering.

Paragraph patterns
Every paragraph needs a focus – there must be a point being made.

Every paragraph also needs a shape – a way of moving the sentences to make a shape.

There are two paragraph patterns – the hour glass paragraph and the V-shape paragraph.

A. The hour glass-paragraph

It begins with a general statement about the topic. This may take one or more sentences.
The paragraph then narrows to the specific support for that general statement (explanation).
Paragraph concludes with a more general sentence or two about the topic.

B. The V-shaped paragraph

This is the most common type in legal writing.

It begins with a general discussion of the topic and then it narrows to specific support. It does
not return to a general statement.

Both patterns work well in legal writing.

What is important is the general opening sentences followed by specific support for the
generalizations.

Unity and Coherence

Paragraph unity
A paragraph must have its own topic – it must make a point.All elements of the paragraph must
work together to make that point. When that happens, there is paragraph unity.

The topic is introduced at the beginning of paragraph by topic sentence. It is then developed by
supporting sentences.

The concluding sentence follows.

What a paragraph must not do is to stray from topic.

Paragraph coherence
Coherent paragraph – Its elements must be connected in such a way that the reader easily
follows the ideas developed.

Paragraph coherence can be achieved through:

 Using familiar organizational patterns.
 Establishing and using key terms.
 Using sentence structure and coherence devices

Familiar organizational patterns

All readers expect certain patterns:
 Cause/effect.
 Problem/solution.
 Chronological order.

When these expectations are met, the ideas are easy to follow.

Legal readers have some additional patterns they expect; for example

 Once a rule has been laid out, readers expect it to be applied.

  They expect a court’s holding to be followed by its rationale.
 In legal opinions, the IRAC pattern is expected.

Using key terms

Repetition of key words is the easiest and most important method of creating coherence.
Logical connections between key words to make your point are crucial.

Sentence structure and coherence devices

Coherence can be created through sentence structure and a number of coherence devices.

The major devices are:

Dovetails – beginning a sentence with reference to the preceding sentence.

Parallelisms – Used to show which ideas should be considered togetherand which should be
compared or contrasted.

Paragraph length

There are no hard and fast rules about paragraph length.

The writer simply needs to know if they have finished what they set out to say in the paragraph.

Sentences should be as many as enable point to be made.

Reader’s comfort must be kept in mind.

Avoid paragraphs that create a solid page – this has negative effect in mind of reader.

Length of each paragraph should be primarily determined by content.

Variety in paragraph length is necessary.

Short paragraphs work well after an unusually long one to give reader a break.Short paragraphs
also work well when the writer is making a major shift, change or connection between
ideas.Short paragraphs usually serve as transitions between sections and as introductions or
conclusions.

Topic and concluding sentences

Not all paragraphs have topic and concluding sentences.Many well written paragraphs have
neither.However, MOST well written paragraphs have topic sentences and those that don’t
have an implied one that governs the paragraph.

Concluding sentences sometimes are useful to the reader and at other times they are not.One
has to carefully determine if they need one or not.

Readers will find concluding sentences helpful after long complicated points.

Paragraph Blocks
Many paragraphs may not have topic sentences or concluding sentences yet work out
well.Why? Because they are part of a larger organizational element – the paragraph block.

A paragraph block is a mini-composition.It begins with a paragraph or two.The middle is usually

several paragraphs.The end is a paragraph or two.

Beginning paragraphs are general statements that introduce the topic of the paragraph block.
The middle paragraphs contain sub-points – the specifics that support the topic paragraphs.
The concluding paragraphs bring the discussions back to the broad topic but in a way that
advances the line of reasoning.

Question 2 (a); Thursday, 1st August, 2013: Distinguish a thesis

statement from a thesis paragraph (5 marks)

Question 2 (a); Thursday, 19th July, 2012: Distinguish a thesis

statement from a thesis paragraph.

Question 2 (a); August/September 2010: Define and distinguish

the following terms: thesis statement; and Thesis paragraph. (5
marks)
Tuesday, March 26, 2013

SENTENCE TRANSITIONS
These are words or short phrases that link two or more clauses in a sentence.

These may also be referred to as connecting words or phrases.

They introduce the follow of activity and ideas demonstrating where the writer is coming from
and where he is going.

Types of transitions
There are four types of transition:

1. Coordinating Transitions/Conjunctions
The coordinating transitions are represented by the acronym [FANBOYS For, And, Nor, But, Or,
Yet, So]

They connect sentences equally. When using a conjunction, the idea is that the sentences are
independent but linked. When the conjunctions are removed, the independent sentences can
stand alone.

Whenever a coordinating conjunction is used to connect two sentences, then a comma must be
placed before a conjunction.

For instance:
She is a good lawyer, but she doesn’t like litigation.

When using a coordinating conjunction to connect two phrases or words, then do not use a
comma.

For instance
The lawyer and the pupil went to court.

2. SubordinateTransitions
The use of a subordinate transition means that the meaning of one sentence depends on
another.

A sentence beginning with a Subordinate Conjunction always depend on another sentence that
does not begin with a Subordinate Conjunction
For instance;
I went to court because I wanted to argue a case

Subordinating transitions are used when reporting facts of a case.

If the Subordinate Conjunction is between two phrases, which can stand alone as independent
sentences after the removal of the subordinate conjunction, then do not use a comma to
separate the phrases.

If the subordinate conjunction is placed in front of the opening phrase, then place a comma
between the two phrases that are being connected.

A comma must not be placed after the subordinate conjunction.

3. Conjunctive Adverbs and Transitional phrases

These explain how two sentences relate to each other. Usually, strong punctuation marks like a
full stop or a full colon and at times semicolons separate a conjunction adverb or transitional
phrase from both sentences.

For instance
I went to court early. Unfortunately, my matter had already been called out.

The phrase ‘unfortunately’ in the above sentence shows contrasting relationship.

The connector ‘unfortunately’ helps the reader to move from one idea to the next.

Examples:

There are transitional phrases which show sequence. Examples include; again, in addition, next,
first, second, equally important, furthermore et cetera. They are also known as generic.

There are transitional phrases which introduce comparison. Examples include; also, similarly,
likewise, in the same way, in the same manner et cetera.

There are transitional phrases that contrast. Examples include; at the same time, on the
contrary, even so, in spite of, on the other hand, nevertheless, regardless, still, notwithstanding,
however et cetera.

There are transitional phrases which provide examples or they intensify; for example, indeed,
that is, for instance, illustration et cetera.

There are transitional phrases which indicate place. Examples include; above, beyond,
elsewhere, nearby et cetera.
There are transitional phrases which indicate time. Examples include; after a while,
immediately, presently, before, in the past, simultaneously et cetera.

There are transitional phrases which show effect. Illustrations include; accordingly, hence, as a
result, otherwise, thus, consequently et cetera

There are transitional phrases which give additional information. Illustrations include; in the
first place, otherwise et cetera.

There are transitional phrases which show logic. Illustrations include; consequently, for this
reason, therefore, as a result, however, then et cetera.

There are transitional phrases which summarize, repeat or conclude. Examples include; all in all,
in brief, in particular, in short, to put it differently, in other words, finally et cetera.

There are transitional phrases which show conditions. These include; as long as, if, in case,
provided that, in as much as, on the condition that et cetera.

There are transitional phrases which show or demonstrate purpose. These include; in order
that, so that, least, that et cetera.

Thursday, 1st August, 2013

Question 2 (b); Define a transition and explain the
purpose for which transition words are used. (5 marks)

Question 2 (c); Identify and list the transition words in

the following paragraph…[paragraph provided] (5 marks)

Question 2 (b); Thursday, 19th July, 2012

Define a transition and explain the purposes for which
transition words are used.

Question 2 (c); Thursday, 19th July, 2012

Identify and write the transition words in the following
paragraph […paragraph provided]

Thursday, 21st July 2011

Question 1 (a);For what purposes are transition words
used? (5 marks)
Question 1 (b); Identify (the) transition words (in the
following paragraphs) and explain what the transition
signifies in each case […paragraphs provided…]
Question 2 (b); August/September 2010
Define a transition and explain the purposes for which
transition words are used (5 marks)

Question 2 (c); August/September 2010

Identify and write the transition words in the following
paragraph: […paragraph provided…](5 marks)
Wednesday, April 3, 2013

EFFECTIVE SENTENCES
A sentence is effective if it communicates to the reader without ambiguity and without looking
for any other explanation or clarification.

The sentence must pass information without the reader looking for another source for
clarification.

Components of a sentence
A sentence normally has three components: a subject, a verb and a predicate.

As a cardinal rule, a sentence must have a subject and a predicate.

A verb can express something that is in existence or something that is being in place instead of
it being necessarily an action.

A subject is a noun, or a pronoun paired with a verb.

A noun can be a word or a group of words.

The subject in any sentence identifies the theme, the quality or the person that is the theme or
the topic of a given sentence.

For instance;
The commissioner may be represented by a counsel at the hearing of the application.

‘The commissioner’ is the subject in the above sentence.

The predicate in the sentence is ‘the counsel at the hearing’ – [group of words]

A sentence may also contain an object.

The object is a word or a group of words that receives the mental of physical action conveyed
by a verb and performed by the subject

For instance;
This act binds the state.

The subject is ‘act’

The verb is ‘binds’

The object is ‘the state’

At times, sentences comprises of phrases.
A phrase is a group of related words functioning as a sentence element but without either a
subject or a predicate.
Examples of phrase: without delay, in accordance with the regulations, in this section or in
this Act.

Besides a phrase, a sentence may mature into a clause.

A clause is a group of related words that contains a subject and a verb.
In legislative drafting, a clause in most cases refers to a complete statutory provision divided
into components.

In most sentences writers use modifiers

Modifiers are also known as adjectives and they can also be adverbs.
Adjectives describe or qualify nouns or pronouns or a group of words while adverbs describe or
modify verbs

For instance;
Reasonable grounds for appeal.
Theadjective in the above sentence is ‘grounds for appeal’

A suspect in a police station

The adjective is ‘a police station’

A person who knowingly or recklessly gives false information commits an offence

The adverb is ‘knowingly and recklessly’

Sometimes, we use dangling modifiers.

A dangling modifier is a phrase or clause in which the doer of the action is not clearly
identifiable. In that case, the modifier is misplaced and introduces ambiguity.

For instance;
Public hospital or school

‘Public’ is the dangling modifier. It is not clear whether it modifiers the hospital or the school.

A registered dentist or medical practitioner

A married woman or man

Together with dangling modifiers we’ve misplaced modifiers.

This is a word placed far from the word which it is supposed to qualify or describe which leads
to ambiguity in the sentence.
Examples:
The new recruits were informed that they were accepted by the new officer.

Last night she made meat loaf in her pajamas

The use of parallel structure [parallelism]

This is the use of the same grammatical form or structure for equal ideas in a list or sentence.

Parallelism is used in contracts and legislative drafting.

Subject - verb disagreement

The general rule is that the number of subjects in any sentence determines the number of
verbs.

When drafting, the subject in question will determine whether the sentence will be presented
in singular or plural

For instance;
Each of the hospital boards is required to submit any annual return.

A deputy member as well as the appointed members is required to hold a professional

qualification.

Avoid wide gaps between the subject, the verb, and the object.
In seeking to understand a sentence, the reader’s mind searches for the subject, the verb, and
the object. If those three key elements are set out in that order and close together in the
sentence, then the reader will understand quickly.

Lawyers like to test the agility of their readers by making them leap wide gaps between subject
and the verb and between the verb and the object.

The best remedy for really wide gaps is to turn the intervening words into a separate sentence.

Smaller gaps between the subject and verb can be closed by moving the intervening words to
the beginning or the end of the sentence.

Question 1 (b); Thursday, 19th July, 2012

Edit the following sentences to cure the separation of related
words. Keep the subject, verb and object together at the
beginning of the sentence. {Sentences given} [9 marks]
 Question 2; Thursday, 17th November 2011:
To make legal writing easy to understand, most declaratory
sentences should follow the normal English word order. Revise
the following sentences putting the subject, verb and object
together and near the front. Omit as many surplus words as you
can. [Sentences given] [15 marks]

Question 2 (b); Thursday, 21st July 2011:

Edit the following sentences to cure the separation of words.
Keep the subject, verb and object together at the beginning of
the sentence. […sentences given]

Question 1 (b); August/September 2010: Edit the following

sentences to cure the separation of related words. Keep the
subject, verb and object together at the beginning of the
sentence. […sentences provided…]
[9 marks]

Friday, April 05, 2013

ACTIVE AND PASSIVE VOICE

The term “voice” when it is applied to the subject-verb unit refers to the relationship of the
subject to the action expressed in the verb. This rather vague concept is easier to understand in
terms of the difference between active and passive voice.

Active voice is direct, clear and short whereas the passive voice is convoluted, ambiguous and
long.

Illustrations in sentences
John kicked the ball – Active sentence
The ball was kicked by John – Passive sentence

Active voice sentences are preferred in legislative drafting.

Passive voice sentences are commonly used in matters regarding gender sensitive issues or in
cases ofshort gunning.

Short gunning is using so many words in a sentence to describe a simple thing. When lawyers
want to be precise and cover every possibility, they often use the shotgun approach- take rough
aim and loose a blast of words, hoping that at least one of them might hit the target. The
simplest remedy is to use a dictionary or thesaurus to find a single word that will adequately
express the intended meaning.Where vagueness poses a problem, the best course is to choose
a serviceable term and define it for the reader. Then use the term consistently throughout the
document, being cautious not to depart from its defined meaning.

An instance of short gunning;

No person shall cut, prone, dig, carry, fell, bore, chop, saw, chip, move, climb, molest, take,
break, deface, destroy, set fire to, burn, pain, scorch or in any way interfere with, tamper,
mutilate, misuse or damage any tree, grass, flower, trunk or part thereof, nor shall any person
permit any chemical whether solid or gaseous to sip, drip or be emptied, sprayed or injected
upon, about or into any tree, shrub, grass, flower or any part thereof except when specifically
authorized by competent authority nor shall any person build fires or induce any road roller or
any other engine within an area covered by this part in such a manner that the vapor fumes or
heat therefrom may injure any tree.

 Avoid sentences in the negative

 Avoid mixture of verbs

Identifying Active and Passive Voice

In the active voice, the subject of the sentence is doing the action described by the verb.

Illustration; The judge overruled the objection

(Subject) (Verb) (Direct object)

In the sentence above, the subject “judge” is doing the verb “over-ruled”. Another way to look
at it is to remember that in the active voice, the subject is “active,” or acting.

In the passive voice, the subject of the sentence is having the action of the verb done to it.

Illustration: The objection was overruled by the judge.

(Subject) (Verb)

In this sentence, the subject “objection” is not doing the overruling; rather, the verb “was
overruled” is being done to the subject. Another way to look at it is to remember that in the
passive voice the subject is “passive.” It is not acting; it is acted upon.

Notice that in the passive voice, the person or thing doing the verb is either mentioned in a
prepositional phrase (“by the judge,” as in previous example) or omitted, as in the example
below.

The objection was overruled.

(Subject) (Verb)

Note that passive voice is different from past tense. Even though both concern the verb, past
tense refers to the time of an action and passive voice refers to the relationship of an action to
the subject of the sentence.

Effective use of Active Voice

Generally, the active voice is preferred over the passive voice for several reasons:

1. It is more concise.

Examples:

The marshal left the summons. (Active voice – 5 words)

The summons was left by the marshal. (Passive voice – 7 words)

2. It uses a more vigorous verb.

Examples:

The plaintiffs filed a complaint in the High Court of Nairobi County, Kenya. (Active voice – verb
‘filed’ is crisp and vigorous)

A complaint was filed by the plaintiffs in the High Court of Nairobi County, Kenya. (Passive Voice
– verb ‘was filed’ loses much of its vigor; the auxiliary verb ‘was’ and the preposition ‘by’ dilute
the energy of ‘filed’)

3. It allows information to be processed more readily.

Example:

The defendant’s attorney must offer the deposition into evidence.

This active voice sentence is easy to process mentally. The reader can visualize the subject
“defendant’s attorney” doing the verb “must offer” to the object “deposition” as quickly as the
words are read. The sentence suggests a mini-drama that readers can visualize in their minds.

The deposition must be offered into evidence by the defendant-s attorney.

Although the information in this passive voice sentence is not difficult to process, readers must
read the entire sentence before they can visualize the sentence in their minds. By the midpoint
in the sentence, “The deposition must be introduced into evidence,” the action has begun, but
it is being done by unseen hands. The “actor” in the mini-drama does not come in until the end
of the sentence.

In both objective and persuasive legal writing, active voice is usually preferred when you want
to make a point that someone or something performed a particular action. Active voice
emphasizes who or what is responsible for committing an act.

Example:

The defendant embezzled over Ksh 1 million. (Active voice – emphasizes that the defendant is
responsible for the act)

Over Ksh 1 million was embezzled by the defendant. (Passive voice – It is still clear that the
defendant performed the act, but now the emphasis is on the amount of money)

Over Ksh 1 million was embezzled. (Passive voice – doer of the action is either unknown or left
unsaid; emphasis is on the amount of money.)

Effective use of Passive Voice

Although it is true that active voice is generally preferable to passive voice, there are several
situations in which passive voice is more effective.

1. Use passive voice when the person or thing performing the action is unknown or
relatively unimportant.

Illustration:

A portion of the tape was erased.

The safe’s hinges must be examined before the manufacturer’s liability can be determined.

2. Use passive voice when it is undesirable to disclose the identity of the person or thing
performing the action.

Illustration:

The plaintiff’s retirement benefits were discontinued.

Toxic fumes were ventilated out of the plant between 2:00 A.M and 3:00 A.M

3. Use passive voice when the deed, rather that the doer, should be emphasized.T he thing
done is important, and who did it is not.

Illustration:
All defendants were convicted of murder.

4. Use passive voice when it allows the writer to keep the focus of the writing where it
belongs, as in the following example from a paragraph about a mistake in a contract.

Illustration:

A mistake can also be attributed to Miathene Secondary School for believing the price of the
playground equipment included installation.

5. Use passive voice when it provides a stronger link between preceding and subsequent
sentences or clauses. This link is enhanced by moving the connecting ideas to the end of
the first sentence (or clause) and then picking up on that point at the beginning of the
second sentence (or clause).

Illustration:

Under the Revised Code of Washington, Title 62A, contracts for the sale of goods are regulated
by the Uniform Commercial Code. The UCC outlines the requirements for a valid contract for
the sale of goods and the various steps necessary to the contract’s performance.

The first sentence uses passive voice so that “Uniform Commercial Code” will be at the end of
the sentence. The second sentence begins with “The UCC” to provide a strong link between the
sentences.

In persuasive writing, you will find that the passive voice allows you to downplay who
performed certain actions. For example, counsel for the defendant may want to use the passive
voice when admitting wrongdoing by the defendant.

Illustration:

A purse was taken from the plaintiff by the defendant.

Counsel for the plaintiff will use active voice to emphasize that it was the defendant who took
the purse.

Illustration:

The defendant took the plaintiff’s purse.

Thursday, 15th November, 2012

Question 1 (c) “Passive voice is not forbidden; usually active

voice is better and easier to understand.” Redraft the following
provisions of a contract in active voice so as to better express
the interests of the contracting parties.[ …sentences provided]
[10 marks]

November 2009

Question 1 (a) Discuss the advantages of using active voice and

the disadvantages of using passive voice (6 marks)

Question 1 (b) Discuss four instances when it is permissible to

use passive voice instead of active voice as an exception to the
general rule. Give one example under each instance. (4 marks)
 SECOND SEMESTER
Thursday, May 09, 2013

DRAFTING OF LETTERS (to be taught by Mr. Munene)

LETTER DRAFTING
The purposes of letter writing in the legal context are the following:
1. To persuade
2. To inform
3. To make a record of facts
4. To make a demand

It is significant that letters written by a practitioner do not have errors. They should be written in simple
and concise language for easy understanding. The form of the letter should be designed to assist the
reader to get the message that was intended.

FORMAT
The information in the letter should be arranged in a manner that is both logical and easy to understand.
The most common format;

1. The name and address of the writer

2. The name and address of the recipient
3. The date
4. By registered post of land delivery
5. Attestation
6. References

[The above is meant to create a record of matters that will become crucial later]

7. Salutation
8. Subject line
9. Body of the letter – here it is important to use effective language
10. Signing off
11. Name

The letter should be written in simple language

1. Consider the recipient of the letter; their level of education, ability to read and ability to
understand.
2. Organization of the letter; collect all the information you will need before writing.
 3. Do a first draft.
4. Arrange your letter in such a way that the most important information is at the beginning.
5. The “one idea per sentence” rule is critical.
6. Clarity; as much as possible, use the active voice, refer to actual names and places and use short
sentences.
7. Presentation and image; the image of the letter should show that it is professional letter writing.
Avoid spelling mistakes, untidy layout, unbalanced spacing, illegible typeface, dirty and damaged
paper, mistakes that are crossed out and re-written by hand and grammatical errors.

Thursday, 15th November, 2012

Question 2 (a) identify and explain the fundamental skills
in the drafting of letters in legal practice. [5 marks]

LETTERS TO CLIENTS
An advocate is under an ethical and professional duty to keep their client updated on their briefs. An
advocate may also be seeking further information from the client. The idea is to write to the client in a
way that it will not be necessary to explain later what they meant.

LETTERS TO OPPONENTS
An advocate should be very careful about what the contents of a letter are. Ambiguous language should
be avoided as it may be used against the advocate. Avoid being rude or using defamatory statements.
Lord Denning in ‘Traditions of the Bar’ stated; “Many cases have been worn by courtesy, and lost by
rudeness.”

Thursday, 15th November, 2012

Question 2 (b) what are the functional and drafting
differences between a legal opinion written to a client
and one written to a professional colleague? [10 marks]

DEMAND LETTERS
These are letters sent to a defendant on the basis of your client’s instructions. It sets out the basis of
your client’s claim and informs the addressee that your client will sue unless the addressee does what
your client demands.

The structure of a demand letter is the same as that of general letters.

The subject should be clear enough to show that the letter is a demand.
The introductory paragraph should establish your mandate as your client’s advocate and should clarify
that the letter is being written on your client’s instructions.

The next paragraph should briefly and logically state, in chronological order the facts on which your
client relies. Only set out the absolute minimum facts, enough to establish your case.

The facts should be accurate.

Draw a conclusion in law from the facts.

After the conclusion, make a demand.

Then set out the consequences of what will happen if the demands are not met.

Sign off.

Thursday, 1st August, 2013

Question 4 (a) Explain FIVE key parts of a demand letter (5 marks)
Question 4 (b) [..set of a facts given…] Draft the appropriate demand
letter (10 marks)

Thursday, 19th July, 2012

Question 3 (i); What is a demand letter? (2 marks)
Question 3 (ii); Discuss FIVE key parts of a demand letter (5 marks)
Question 3 (iii); […facts given..]Draft the demand letter that you would
send to the Kamaus. [8 marks]

Thursday, 4th November, 2010

Question 4 (a) What is a demand letter? (2 marks)
Question 4 (b) Discuss FIVE key parts of a demand letter (4 marks)
Question 4 (c) (ii) […set of facts given] Draft a demand letter. [6 marks]

November 2009
Question 4 (a) Discuss any four parts of a client care letter. (5 marks)

Question 4 (b) […set of facts given…] You are a legal assistant in the firm
of WakiliMkubwa and Associates. Prepare a client care letter to Malilio.
[10 marks]

December, 2008
Question 3 (a) identify and describe the salient features of a properly
drafted demand letter. (5 marks)
WRITING OF OPINION
Why do we write opinions as lawyers?

Opinion writing is persuasive. It is fact based and therefore most of the facts will be established
at the interview level. But this must be reinforced by an understanding of the law therefore the
need for legal research. The legal research is about:
 identifying the subject area.
 identifying the area of law that will play a role in your problem solving mission.

In the Kenyan context, which is the convenient starting point? What are your sources of law?

 The laws of Kenya – what is the statutory law governing the problem?
 Case law –what have courts said?
 Common law – where the statutes and case law are unavailable
 Customary law
 Commentaries by authoritative writers.

A critical tool of research is the use of the internet.

WAYS OF RENDERING LEGAL OPINIONS

1. By letter
This is when dealing with a client or a different firm. When doing a letter to the client, keep
it simple. Written communication must consider the reader. For a lawyer, use a cover letter
forwarding a memorandum.

2. Office memorandum
A memorandum must be headed with the “To:…” and “From…”, then the Date, then the
Subject line. The body then follows.

The first thing to interrogate in the body is a narration of the facts as you understand them
from the instructions.

After, ask yourself the following questions: What are the legal questions arising? Is there a
course of action? If so, what is the course of action?

After this, answer the legal questions. This reflects your understanding of the facts and the
law and how you apply the law to the facts.
 At times people break it down into short answers. When this is done, you must explain it in
substance thereafter. There must be evidence of application of the law to the facts.

The final stage is to summarize the factual analysis, the application of the law and to make a
recommendation. This forms the conclusion and it is critical since it should persuade the
person you are writing to.

It would be advisable to number the paragraphs.

At the end of the memorandum, sign out with just your name and the signature.

CONTENT
The element of identifying the facts and the legal principles, identifying the law and
applying the legal principles to the facts is critical.

The writing process is called IRAC.

 Issue
 Rule of Law
 Application of the rules
 Conclusion
It is wise to break a legal opinion into headings in a memorandum. This would however not
work in a letter. Remember to keep it simple.

When dealing with multi-faceted, they should each be broken down under each section.

In as far as rules of law apply, one must do it hierarchically. The principle law first then the rest.
Be very clear on the rules of law. If relying on custom, you must prove it.

In writing an opinion to your client, how much authority should you refer to? It is a delicate
balance but it is advisable to be as simple as necessary. Avoid loading it with statutory
provisions and case law. You can state “the law says” or “the courts have held the opinion”.

CASE ANALYSIS
A case can be defined as;
- a legal dispute,
- a decision that a court has made, or
- a law suit.
Case analysis is concerned with the fact that every legal dispute revolves around a story. That is
why narration of the client’s story is important.

A court makes its decision at two main levels;

1. Substantive level - what are the merits of the case?
2. Procedural level - have you used the right procedure, matters of jurisdiction, etcetera.

A decision can be a mix of the two.

What is the importance of reading cases in the learning and practice of law?
i. To understand the law.
ii. To determine how that law applies to a client’s situation.
iii. To predict how a court will view a client’s situation.

Practicality of going about cases

i. Careful and purposive reading - you are looking for meaning. It is about mastering the
essence of the case so that you are then able to explain it. To be able to do this, you are
going into looking at what the general statements of the opinion are. Cases generally
state;
a. The facts that give rise to the dispute – note that every case is based on a story.
b. The issue(s) – this is a question about what the law means, or how or whether
the law applies to a particular situation.
c. The law applicable to the dispute – this is about knowledge of the law and where
it is found, that is, statute, custom or precedent.
d. The holding - this is the court’s decision on the issue(s). What is the court’s
decision about how the law applicable relates to the facts?
e. The reasoning or court’s rationale - this is the support for the holding. In judicial
practice, the court is expected to explain why the law in its mind reached a
particular decision or result.

Essential elements of case analysis

Starting point, read the case carefully.

Steps of case analysis

1. Understand the case and the general facts of the case. Pick out what you consider to be
the crucial facts.
2. Identify the holding. What did the courts decide? It is the answer to the legal questions
raised.
 3. Identify the issues. Why do we have the matter before the court? These are issues which
the parties have disagreed upon and have brought them before the court for
adjudication. The issues may be express and may also be implied due to the nature of
the case.For instance; in a paternity suit where the plaintiff requests the court to
ascertain paternity, the implied issue is that of upkeep (money).
4. Identify the rule. The general legal principle that is relevant to the particular situation.
5. Identify the relevant facts.
6. Identify the policies and reasons. A policy is the underlined reason/purpose/object for a
particular legal provision. Why do we need this legal policy? What was the policy
consideration behind the policy? The policy consideration must be within the broad
principles of law neither should it go against the black letter of the law. What was the
rationale for the policy? Reasons are specific whereas policy is global.
7. Check out for congruency. What are the similarities in other cases? Determine the
extent to which the policies and reasons are similar.
8. Where there are multiple issues in a case, analyze each issue separately. Do not clamp
the issues together because they are supported differently by evidence. If you are on
the opposition, rely on distinction of the cases.

CASE BRIEFING
This is a written summary on how you understand a case. This is a written concise summary of a
court’s decision. Mostly they are written for personal use.

Case noting is for law reporting. It involves the summary of the case and a full decision.

Why do we do case briefs?

i. To understand the court’s opinion.
ii. To predict the outcome of a case.
iii. To come up with arguments for a client.
iv. To master new case law in a particular area of expertise.
v. To show a judge how new law relates to the proceedings.
vi. To respond to a specific question about a case.

Thursday, 15th November, 2012

Question 3 (a) Explain the reasons that make writing of
case briefs important. [5 marks]

Steps in briefing
i. The facts
 ii. The issues
iii. The law
iv. The holding
v. The reasoning

Ideally, a case brief should not be more than 5 pages.

The essence of case briefing is to transfer the case analysis into written form.

Thursday, 15th November, 2012

Question 3 (b) Read the following decision {in
Okeyo v. Owino (2003) KLR 413 (Kuloba. J)} and
draft a case brief based on the judgment. [10
marks] [judgment attached]

Question 4; Read the following judgment of the

High Court and using the appropriate format,
prepare a case brief based on the judgment. [15
marks] [judgment attached]

Thursday, 4th November 2010

Question 2; Re-write the summary (of a ruling
attached) as a case-brief using the appropriate
format (15 marks)

Question 2; November 2009:

Write a brief on the case of Ichaura& 8 others v.
Nation Media Group (2005) 1 KLR 499 (attached)
using the IRAC (Issue, Rule, Application,
Conclusion) method. Remember to apply the
characteristics of good writing and writing in plain
English.
[15 marks]
PREPARING OR WRITING A LEGAL OPINION
Types of legal opinion include; Memorandum, Submissions, Judgment et cetera.

When preparing to draft an opinion, there are some things you need to know

1. What is the purpose of the opinion? This will help you determine what language to use.
2. Understand the facts of that case, issues arising, what is the subject matter?
3. Understand the legal rules/principles governing the subject area. This includes some
basic background reading.
4. Look at similar decisions that have been considered in the country
5. Consider the client. Whom are you advising?

What is the content of a legal opinion?

1. Always commence the opinion by setting out the facts as presented before you. This will
help you understand and crystallize
2. Identify and set out the issues arising. What are the issues you are going to propose
answers to?
3. The answers to the issues raised. Bring out the legal decisions you rely on and
distinguish issues and decisions as need be. Discuss issues separately in manageable
paragraphs. For continuation of paragraphs, use transitions so as to have a logical
sequence.
4. A summary statement of your conclusion.

Opinions take different forms; letters, legal memoranda and each has its own structure and
format.

For instance, Legal memorandum

First part: Heading. Identify the client or give the case number

Followed by introduction. Hereunder, identify the client, state why the client or the matter was
referred to you (preferably paragraphs of 2 to 3). Set out the basic issues arising. Give a brief
answer to those questions.

Body. Start with a detailed statement of the facts.All relevant facts, facts in dispute and facts
relevant to the case. The facts must be presented in a chronological manner. You may number
the paragraphs or use subheadings in different paragraphs.

The undertake a survey of pertinent statutes involved. Identify and briefly describe the
statutory provisions relevant to the issues in question.
Brief survey of precedents. If there are decisions arrived at relating to the facts starting with the
most recent.

Undertake a discussion of the issues raised. Remember to discuss each issue separately.
Discussion of issues is the central part of the memorandum. Do not only give the strong points
of your case, bring out the weak points of the case. Give a dispassionate opinion of the case.

Give a conclusion. Remember, you are not making a decision. This is a summary of your
predictions about the state of the law and how it applies to the case before you. Do not give an
affirmative decision.

Give your recommendations. What do you propose to your client?

Question 3; Thursday, 1st August, 2013

[…set of facts given] Draft your legal opinion
[15 marks]

Question 3; Thursday, 17th November, 2011

Question 3; Thursday, 21st July 2011

[…set of facts given] Draft your legal opinion
[15 marks]

Question 3; Thursday, 4th November, 2010

Draft your legal opinion (to MtakaShamba on his rights and set
out clearly the nature of the appropriate civil action as well as the
criminal charges that may be preferred against Kambo.)
[15 marks]

Question 3; November 2009

[…set of facts given] Draft the legal opinion
[15 marks]

DRAFTING OF LEGAL DOCUMENTS

Every time you are drafting legal documents there are four principles that you must observe:

1. Before you begin drafting your document understand what the document is supposed
to accomplish. For example if it is a will, understand what the will is supposed to
accomplish.(PURPOSE)
2. Always research, identify and understand the rules that govern your action in your
jurisdiction. For example, a will must comply with the law and specific rules applicable in
the country.
3. If it is a document that is being filed in court, remember to capture the citation and
identify the appropriate court.
4. Always back up your arguments with pertinent statutory decisions.
Tuesday, May 21, 2013

THE ENACTMENT PROCESS

GENERAL PROCEDURE FOR THE ENACTMENT OF SUBSTANTIVE
LEGISLATION [PREPARATION OF A CABINET MEMORANDUM]

THE CONTEXT

As Cabinet Memoranda play a pivotal role in the Cabinet decision making

process, it is critical to understand the function and process associated with the document. A
cabinet memorandum is the key instrument a Cabinet Secretary uses to obtain the support of
Cabinet colleagues for policies and proposed course of action. In draft form, it is also the
instrument used by officials to lay the consultations groundwork with other departments and
the central agencies before the Cabinet Secretary actually presents the initiative to Cabinet.

They are mostly prepared by public agencies. It is a tool by the government to make the
Cabinet make decisions.For instance, when consulting with government agencies, this has to be
through Cabinet Memorandums.

A Cabinet memorandum is prepared when directed by the president or a Cabinet decision; in

response to recommendations or requests; when proposed legislation is to be presented to
Parliament; or when a policy or program initiative is of significant importance or sensitivity to
warrant a Cabinet decision before any action is taken by a Minister, for example, a policy that
affects the tax, a policy that leads to amendment of existing legislation or a policy touching on a
new policy area.

When preparing a Cabinet Memorandum, be strategic and alive to the political realities of the
day.

The process for the enactment of an Act of Parliament begins with a request for policy approval
from the Cabinet for the proposed legislation by the Ministry concerned. The request must be
in the form of a Cabinet Memorandum setting out the following:

 The purpose of the Memorandum

 The background for the legislation
 Issues for consideration by Cabinet
 Inter-departmental or Ministerial consultations that have been held with bodies or
agencies of relevance.
  Financial, considerations supported by a statement that the Ministry of Finance has
been consulted.
 Employment considerations, if any.
 Whether or not there is existing legislation.
 Whether amendment or new legislation is required, and
 The recommended action to be taken by Cabinet.

The Cabinet memorandum must be presented by the sponsoring Cabinet Secretary to Cabinet
under cover of a letter to the Secretary to the Cabinet signed by the concerned.

After consideration of the Memorandum, Cabinet approval is communicated in a letter signed

by the Secretary to the Cabinet to the sponsoring Cabinet Secretary and copied to the Attorney-
General. This letter gives direction for the preparation of the legislation concerned. It is useful if
a copy of the Cabinet Memorandum is attached to the Cabinet approval to the Attorney-
General because the explanatory memorandum that goes with each Bill is prepared by the
drafter on the basis of the Cabinet Memorandum for policy approval.

The significance of the Cabinet approval is that it authorizes the sponsoring Minister through
the schedule officer to issue drafting instructions to the legislative Drafting Division of the
Attorney-General’s Department.

The drafting instructions should follow the contents of the Cabinet Memorandum and should
include the following:

 Objectives intended to be achieved by the Bill

 Reports on the matter including any relevant legal opinions
 References to existing legislation
 Indication of any consequential amendments, transitional or savings provisions
required.
 Prospective commencement date if required, and
 The name of the schedule officer in the Ministry, Department or Agency who is to liaise
with the Legislative Drafting Division of the Attorney-General’s Department.

The draft Bill will be prepared by the Legislative Drafting Division in close collaboration with the
sponsoring Ministry through the Schedule Officer. After consultation between the Legislative
Drafting Division and the sponsoring Ministry, the Bill is finalized. Upon finalization, the draft Bill
is submitted to the sponsoring Ministry with an Explanatory Memorandum attached.

The draft Bill with the memorandum unsigned is then submitted by The Cabinet Secretary to
Cabinet to seek approval for the Bill to be laid before Parliament. The Secretary to the Cabinet
communicates the approval of Cabinet to the Attorney-General and the sponsoring Ministry.
After that, arrangements are made by the Legislative Drafting Division for the printing and
publication of the Bill in the Gazette for the statutory fourteen day period as generally
stipulated in the Constitution.

The Bill is then laid in Parliament by the sponsoring Cabinet Secretary and goes through the
Parliamentary process of passage into an Act of Parliament. It is assented to by the President
and comes into force after it has been published in the Gazette in accordance with the
provisions in the Constitution.

Where the draft Bill is sponsored by an agency or departmental which does not fall under a
Ministry, the Attorney-General takes responsibility to submit the draft Bill to Cabinet and seek
approval for the Bill to be laid before parliament.

The procedure for amendment of an Act of Parliament is similar to that for fresh legislation, it
begins with the sponsoring Ministry obtaining approval from cabinet for the policy of the
amendment and continues in the same way as the enactment of new legislation.

Where it is determined and certified by a Committee of Parliament that a Bill is of an urgent

nature, that Bill may be introduced without publication. A Bill may be laid in Parliament after it
has been published in the Gazette but before the statutory fourteen day period has elapsed if
Parliament considers the matter to be urgent. This often applies to financial legislation.

Some concerns to address while drafting a Cabinet Memorandum include:

 The source of the finances; financial implications.

 What is the overall object of the project? The rationale of the policy.
 Sustainability of the project.

Structure of a Cabinet Memorandum

The structure of a cabinet memorandum is formal and official. It must be followed in order for
the memorandum to be approved and accepted into the decision making process by the
Cabinet.

Every cabinet memorandum consists of:

 the Ministerial recommendations (MR);
 the Analysis;
 the Communications Synopsis and Plan; and
 an Advisory Note.
There may also be Annexes or Appendixes. Usually the Analysis is written first, then the MR
although in final form the MR appears at the beginning of the MC.

The Ministerial Recommendation (MR) is an “advocacy document” providing an overview of

the issue, the recommendations along with their costs and the main supporting arguments. This
is the only part of the MC that contains the Minister’s views, opinions and recommendations.
Attached to the three page MR is a one-page Communications Synopsis and an annex with the
Communications Plan. The sections of the MR are:

1. Title; which should be a description of what the Cabinet Memorandum is about in 5

words
2. Issues; identify the issues in a sentence or brief
3. Recommendations; state the decision that the sponsoring cabinet want.
4. Rationale; what is the justification? Develop the principle argument for the
recommendations.
5. Give the problems and the strategies; the problems take two phases. Take the global
picture of the problem and some of the problems to be taken in implementing the
program.
6. An assessment of the political issues related to the recommendations.
7. Identify the sponsoring agency’s position. Are they supporting the mission? Also identify
if there are other people opposing the measure.
8. Make a recommendation. Indicate the possible decisions the cabinet will make. For
example:
i. We invite the cabinet to take note of the contents of the Cabinet Memorandum.
ii. We invite the cabinet to make a decision.
iii. We invite the cabinet to direct

The Analysis contains the background of the issue, factors considered in arriving at the options
presented and the costs and benefits of implementing each option. The objective is to provide
other analysts, briefers and implementers with the details and background needed to
understand the issue and its implications. The sections of the Analysis are:

 Background (outline of events leading to presentation of the issue to Cabinet)

 Considerations (description of the non-financial factors and interest that will be affected
by the recommendations)
 Options (balanced presentation of the pros and cons of each of the possible courses of
action and the financial implications of each option)
The Communications Synopsis generally contains nine sections on one 8.5 x 14 inch page:
Consultation, Date Drafted, Anticipated Announcement Date, Goals, Impact, Possible Headlines,
Messages, Activities, and Sustaining the Message.

The Communications Plan should not be longer than 8-10 pages and explains how the Minister
will present and explain the decision to the public. It consists of a Communications Analysis and
Communications Tactics sections.

The one-page Advisory Note is written by exempt staff outlining the political communications
considerations.

Style of a Cabinet Memorandum

When writing a cabinet memorandum, to make it as readable and understandable as possible,

keep in mind plain writing principles:

 Use plain, everyday language that can be easily understood

 Be coincise and build your arguments logically.
 Avoid technical terms and acronyms.
 Number the memorandum in a logical manner in terms of paragraphs not by headings.
 Make your paragraphs short and very brief. Avoid long sentences and stories.
 Each paragraph must only carry a single idea.

Assume your first draft will be too long, verbose and bureaucratic. Avoid all three by rigorously
& ruthlessly editing & revising. Ask yourself these questions:

 Given the purpose and context of this cabinet memorandum, what exactly do briefers
and Ministers really need to know?  What is the strategy, the game plan here?
 Have I identified the various actors or issues or options; captured the strategic
considerations?
 Would I be confident walking into Cabinet with this cabinet memorandum?
 Is the level of detail I am providing appropriate to the subject? Is every word and
paragraph essential? What can I edit out?

Thursday, 15th November, 2012

Question 6 (a); Prepare a Cabinet Memorandum
on how the state should implement the “one third
gender rule.”
 Question 6; Thursday, 19th July, 2012:
The cabinet Secretary responsible for matters
relating to Justice and Constitutional Affairs has
been tasked to prepare a cabinet memorandum
on the causes of corruption and how to combat
the same in Kenya. The ultimate aim is to prepare
a new Anti-Corruption Legislation.
Prepare a cabinet memorandum that clearly
identifies the causes of corruption and how to
combat them. [15 marks]

Thursday, 21st July 2011

Question 5; Using (the above) instructions
forwarded to you, prepare a Cabinet
Memorandum (15 marks)

Procedure for the enactment of subsidiary legislation

Most subsidiary legislation, Orders, Rules or Regulations are procedural in nature and often do
not require prior Cabinet approval before the policy proposal are submitted for drafting to the
Attorney-General’s Department. However, instruments that have financial implications for the
State or are by the nature of their contents likely to indicate a policy shift or drastic change in
an existing situation require Cabinet approval and must therefore be submitted for prior
Cabinet approval before drafting begins.

After the proposals for the subsidiary legislation have been received from the sponsors, the
draft Order, Rule or Regulation will be prepared by the Legislative Drafting Division in
collaboration with the sponsoring Ministry through the schedule officer.

In accordance with the provisions in the Constitution, the draft Order, Rule or Regulation must
be published in the Gazette on the day it is laid before Parliament and comes into force on the
expiration of twenty-one sitting days unless the Parliament annuls the Order, Rule or Regulation
by the votes of not less than two-third of the members of parliament before the expiration of
the twenty-one days. The procedure for the amendment of subsidiary legislation is the same as
the making of fresh subsidiary legislation.

There is no specific time frame for the completion of making or amending subsidiary legislation
apart from the statutory requirements for publication. It all depends on Parliamentary agenda
since the time in Parliament is calculated in sitting days and excludes week-ends and recess
periods. The Attorney-General Department has to be notified to know when the subsidiary
legislation comes into force for the date to be printed on the subsidiary legislation.

Finally, the modality for the publication in the Gazette of executive instruments is that the
document to be gazette must be sent to the Attorney-General with a request for the
publication. After vetting, the Notice, Order or Instrument will be sent to the Government
Printer under cover of a letter by the Legislative Drafting Division for publication in the Gazette
after the payment of the prescribed fee by the sponsor. This is the procedure that generall
applies in Commonwealth jurisdiction.
 THIRD SEMESTER
Tuesday, 20th August, 2013
Brown, George Mackay (1921-1996)
“We who deal in words must strive to keep language pure and wholesome; and it is hard work,
as hard almost as digging a stony field with a blunt spade.”

Legal Drafting is a science, it is an art.

Legislative drafting is not just a technical exercise. A drafter is the advisor to the Government in
its legislative capacity. The drafter must work in close collaboration with the instructing
department and ensure that, so far as possible, legislation is based on sound legal principles,
gives effect to the intended policy and is clear and understandable as practicable.

Legislative drafters provide specialist form of advice. The relationship between a drafter and
instructing department is similar to that between a solicitor and a client. The drafter must
provide advice and drafting services in a professional and impartial manner. It is not the
drafter’s role to push through whatever an instructing department wants at all costs. On
occasions, drafters have to speak the unpalatable truth or expose the weakness in a legislative
scheme. This does not always make them popular with policy makers but it is a necessary part
of their job.

The drafter has a wider responsibility to ensure that, in public interest, legislation as finally
enacted by parliament or made by the Executive:
 Complies with fundamental legal principles including constitutionalism
 Complies with guidelines
 Is workable and effective
 Is clear and unambiguous
 Will withstand challenge or adverse criticism in the courts and in law schools
 Does not impose unnecessary or unreasonable compliance costs.

A drafter must thus have a good basic knowledge of the law of the jurisdiction in which he is
operating and must be a person who shows the necessary interest in legislative drafting.

The scope of the legal problems which will come in the way of the drafter is almost unlimited
and the drafter will experience the fascination in the use of words and the correct choice of
words for the solution of any particular problem. The work of the drafter must be related to
practical goal of preparing laws which can be readily understood and which will carry out the
policies of the Government in a form acceptable to Parliament.
A meticulous attention to detail and a clear systematic approach to problems are vital. An
analytical mind is also essential to good drafting. A drafter must keep up to date with events in
his or her country and events in the world generally. The drafter should be in a position to
appreciate the political, economic and social policies that will undoubtedly be the background
to the drafted legislation.

The drafter must be prepared to be a team player both within the legislative drafting division
and with other public officers.

The drafter must be concerned with the practical and effective implementation of the law. This
involves a clear understanding of the role of the drafter in the enactment process and the policy
objectives and the administrative and other requirements necessary to include in the legislation
to implement the policy.

A drafter must always be prepared to accept criticism with tolerance and good humor and by so
doing, quickly gain a reputation for reasonableness. This is important as on those occasions
when the drafter does feel strongly on some matter arising in any drafting instructions or in the
wording of a prepared draft. Any views expressed in a reasonable manner will be more readily
accepted by those concerned.

A drafter is required to undertake extensive legal and factual research beyond the drafting
instructions.

Typically, the drafter’s work involves:

 Receiving and reviewing instructions from the instructing department.
 Raising issues with the instructing department that arise out of the instructions or
seeking clarifications.
 Producing drafts that are clearly drafted and that give effect to the policy intent.
 Devising solutions to problems that arise during the drafting process.
 Assisting in resolving conflicts between departments over the policy or provisions in a
draft
 In the case of Bills, drafting amendments for select committees incorporating changes
made during the parliamentary process and ensuring that the assent copies of
enactments passed by parliament are completely accurate.
 In the case of statutory regulations, certifying to the responsible minister that the
regulations are in order.

The drafter should work constructively with those providing the instructions, seek clarifications
where necessary, endeavor to devise solutions to problems that arise during the drafting
process and insist in resolving differences of opinion between departments.
At the same time, however, if a drafter considers that the policy or some aspect of it does not
comply with legal principle, or is or may be unworkable, or that the instructions are to draft
something that will not be understood, the drafter must raise the matter with the instructing
department and if necessary, with the responsible minister and the Attorney General.

The drafter must attempt to reduce the legislative purpose or intention to simple terms in order
to be able to express it simply. As far as possible, everyday language should be used. Where
necessary, clarity of expression should take precedence over style. Drafting which is
grammatically correct and respects the rules of punctuation makes it easier to understand the
text as well as its translation into other languages.

Drafters cannot, however, control everything. They cannot control judges and they cannot
control the future. Tying the hands of judges leads to overwriting, archaic expression and
headaches for the drafter and the reader. The drafter should accept that interpretation of
statutes can produce surprises.

Philosophical Role of the Drafter

 Catalyst for social development and change

As a drafter, every time you sit to draft legislation, you have to consider the past, see the
present and foresee the future. The law should be able to apply to all situations.

 Word mechanic

The greatest asset of a draftsperson is the ability to get many ideas from people and
engineering them in a single sentence creating rules, obligations, sanctions et cetera.

 Scientist
 Artist

A draftsperson creates graphs in the mind of people.

A draftsperson dictates how particular circumstances are to be dealt with.

As a drafter, one should foresee challenges and come up with solutions to those problems.

 Contribute to achieving justice and welfare for society

As a draftsperson, one should be the gatekeeper of legislation.

A drafter should ensure that legislation is geared towards achieving justice and welfare in the
society.
  Legislative advisor

A drafter plays this role just as a lawyer does.

A draftsperson should advise the government and the client on the technical aspects of drafting
a particular piece of legislation.

The Drafting Process in Your Jurisdiction

What is the unique jurisdictional process?

I. Time
II. Cabinet/Responsible ministry
III. Policy - The law follows the policy.
IV. Green paper
V. White paper

The green paper and the white paper are processes of generating policy before the final Bill is
presented to Parliament.

The Green Paper is used for consultation whereas the White Paper is the one cleared by
Cabinet.

VI. Parliament - Bill

VII. Debate
VIII. Readings
IX. Public consultations
X. Select Committee

Styles of Drafting

1. Common Law Drafting Style

This style of drafting gives a lot of detain in legislation.

It is applicable in Kenya, Tanzania and Uganda.

2. Continental Drafting Style (or) the Civil Drafting Style

In this type of legislation, a lot of discretion is left.

3. Religious Connected Style

This style of legislative drafting draws a lot from the religious context.
For instance, in most Muslim countries, a lot of their law follows the Quran or the teachings of
the Prophet. Also, in Rome, most legislation has a bearing on the Bible.

4. Roman-Dutch Drafting Style

This style in mostly used in South Africa.

5. There is emerging a blend style to encompass and accommodate all the

various styles into one style due to the regional integration and universal
conventions drafted.

Who are the drafters?

 Technical persons
 Persons within existing ministries
 Attorney General’s chambers
 Consultants.

Drafters should have legal knowledge due to the complex society they draft laws for.

Law Revision in Your Jurisdiction

This is the process of cleaning up laws.

When last were laws revised and updated?

Sources of National Laws

1. Constitution as Supreme Law

Article 2 (1) of the Constitution provides that it is the supreme law of the Republic and binds all
persons and all State organs at both levels of government.

A draftsperson should use the Constitution as a mirror.

A draft Bill must be in line with the Constitution.

2. Framework Legislation

A drafter must be cognizance of the Framework Legislation.

The Framework Legislation has overriding powers over all other laws. The key reference laws
for a drafter are the Constitution and the Interpretation Act. A drafter must be very conversant
with these two enactments in order to foster the Rule of Law and consistency of language.
Illustration of the major Framework Legislations:

The Constitution; The Constitution is the fundamental of the land. A Constitution contains the
principles upon which the Government is established. It regulates the powers of the various
authorities that it establishes. It determines the manner in which the powers it confers are to
be confined or exercised. It confers rights and powers and privileges to individuals and
authorities. It specifies the limits to which powers are confined in order to protect individual
rights and prevent abusive exercise of arbitrary powers.

A constitution is the cornerstone of the Rule of Law. It provides for the Legislature, the
Executive and the Judiciary.

Chapter 2,The Interpretation and General Provisions Act.It provides timelines, effects of
amendment, repeals, alterations et cetera.

The Interpretation Act provides the basic rules about how the courts should interpret the
provisions of an Act of Parliament or subsidiary legislation made pursuant thereto. It defines
certain words and expressions and removes the necessity to repeat the meaning in an Act.

Apart from definitions and rules of construction, an Interpretation Act also includes substantive
rules of law such as provisions related to the effect of repeal of an Act.

An Interpretation Act therefore clarifies the rules of construction, avoids repetition and
promotes consistency of language.

It must be noted however that the meaning in an Interpretation Act can be ousted by a
particular definition or provision in an Act.

Other Reference Laws that are important for a legislative drafter are:

Public Procurement and Disposal Act, 2005 (No 3 of 2005)

Government Financial Management Act, 2004 (No 5 of 2004), every budgetary process must
conform to this Act.

The Public Audit Act, 2003 (No 12 of 2003) which is the framework for auditing government
finances. The procedure in draft legislation must conform to the Public Audit Act.

Revision of Laws Act (Cap. 2 Laws of Kenya)

Standing Orders of the National Assembly

EMCA; in terms of environmental matters, it gives principles dealing with conservation matters.
County Governments Act; county laws must be line with the County Governments Act.

These laws are relevant to the drafter because of their cross-cutting nature and supremacy
while dealing with the subject matter of the respective statutes.

3. Sector Specific Laws

Acts must fit in specific sector laws within the Statute Book.

While repealing Acts, state the specific Act to be repealed.

4. Incidental Laws

These are laws which may be affected in the process of drafting new legislation or by
amendments.

As a draftsperson, identify these provisions and state how they should be dealt with.

Bismark, Otto Von (1815 - 1898)

“Laws are like sausages. It’s better not to see them being made.”

The process is murky, tiresome and the life of the drafter is in danger. There are a lot of
challenges.

Drafting Stages and Steps

Suggested Stages
The Understanding Stage

Receive instructions and understand them.

Do a background reading and research.

The Analysis Stage

Use the various instruments (for instance, the Constitutional mirror) to determine whether the
instructions withstand the test of time.

Design and Planning Stage

Here, the draftsperson should prepare proposals of the intended legislation.

Composition Stage
Then, the draftsperson should sit and draft the Bill. The drafter should have an outline, for
instance, regarding the arrangement of sections.

Scrutiny Stage

Under this stage, the draftsperson seeks to know, is the Bill communicative? Does it conform to
the Constitution?

The draftsperson should share the Bill with the agency to get feedback .

SUGGESTED ARRANGEMENT
This relates to the order of a Bill.

PART 1 – PRELIMINARY PROVISIONS

 Long title.
 Enacting Formula/enacting Clause – This is constitutional.
 Short title, for example, this commences as such; “This Act may be cited …the Law of
Contract Act.”
 Purpose provisions/Objectives.
 Definitions/Interpretation – This relates to definition of terms.

PART II – PRINCIPAL PROVISION

This is the heart of the Act

It creates rights and duties and lays down the machinery of implementing the law.

PART III – MISCELLANEOUS/GENERAL

These are supplementary provisions. They assist the main provisions. They create offences and
give powers to assist in implementing the main provisions.

PART IV – FINAL PROVISIONS

These include the savings and transitional provisions, repeals and schedules.

CHECKLIST FOR DEVELOPING NATIONAL LEGISLATION TO IMPLEMENT

INTERNATIONAL CONVENTIONS/INSTRUMENTS

 Set out conventions requirements for national action (legal or others)

 Closely examine each of the requirements
 Consult relevant secretariat documents and precedents including model legislation
where available
 Allocate time for element of the legislation needed at national level.
 Legislative elements
 Definitions
 Objectives
 Principles
 Operational provisions
 Enforcement
 Liability (where appropriate)
Tuesday, 27th August 2013

DRAFTING INSTRUCTIONS

What are drafting Instructions?

Drafting instructions are data provided to the legislative drafter by the policy makers as
a means of assisting the drafter to draft effective legislation within the parameters detailed by
the policy makers of the government.

A legislative Drafter need to know:

a) What the present state of the law is?
b) What the law is to be, and
c) Why?

The ‘what will be’ and ‘why’ are both important elements of legislative drafting instructions.
In writing them down, in thinking them through, and in discussions about them, the ‘what is to
be’ and ‘why’ help sharpen the issues from …

Scope of the instructions

Drafting instructions should explain the reasons for the proposals. That is, the problem
the proposed legislation is intended to solve, or benefits which it is intended to confer. They
should set out the principal objectives of the proposed legislation and how the objectives are to
be achieved by legislation…

The instructions should mention any public response which has already been obtained
in respect of the proposals including consultation through, for example, the Law reform
Commission. The drafter is not asked to weigh the responses but…

Instructions should deal with the legal aspects of the proposal. They should tell the
drafter what the present state of the law is, what the law is proposed to be, and why.

Drafting instructions should deal with any legal issues known to the Ministry and if
appropriate cite relevant case law, for example, income tax liability in the case of a tax statute.

Contents of the instructions

Background Information
 Instructions should contain sufficient background information to enable the drafter to
understand the problem or initiative, how it has arisen, and why it is being proposed. This
should include issues the legislation is intended to deal with.

Principal Objectives

The principal objects of the legislation should be clearly and fully stated. It is helpful for the
drafter to know the purpose of the legislation…

The instructions should include an accurate and comprehensive description, in straightforward

language of how the objectives of the legislation will be achieved.

Important issues of policy and administrative details should be included in the instructions. For
example, if a power to make regulations is envisaged, the instructions should identify the kinds
of things that are intended.

If the draft legislation is to be the subject of a consultative process, the instructions should
describe the nature of it and the projected timeframes.

The instructions should include information about the availability of all relevant legal opinions
and legal research. Also, relevant court decisions or an indication of their availability, and
legislation in other jurisdictions that might provide assistance.

The instructions should mention any Acts or regulations to be repealed. Also, any transitional or
savings provisions needed to deal with issues arising as a result of the repeal of one law and the
enactment of new law.

The instructions should state the proposed timeframe, that is, the date for coming into force of
all or part of the legislation, or information about how the law is to come into force.

Whether other departments and agencies are affected by the proposal.

The instructions should indicate if there have been consultations and note any outstanding
issues.

Format of drafting instructions

 Proposed legislation

 Sponsoring department/ministry

 Department/ministry contact officer. Name/Ph/Fax et cetera

  Date of cabinet approval in principle (copy to be attached)

 Main objectives of the proposed legislation

 Practical implications of the proposals

 Unresolved issues

 Legal advice received

 Level of penalties (if any)

 Acts to be amended or repealed

 Transitional or savings provisions

 Proposed commencement date

 Other departments consulted

 Other matters (including relevant background information reports et cetera)

 Proposed timetable

What form should drafting instructions take?

Most legislative drafters prefer to receive instructions in a straightforward narrative form. Many
offices do not object to instructions in the form of a draft, preferably annotated with
explanations.

Departmental drafts are instructions only and legislative drafters will prepare their own draft
based on the instructions. Consequently, departmental officers should avoid committing to any
particular form of words of expression, because these may not survive the drafting processes.
Alternatively, involve legislative counsel early to get their input.

Ethical implication for drafters and drafting implications

Drafters should serve as custodians of the Rule of Law to ensure good governance and avoid
arbitrary decision-making.

Protect public interest, loyalty to legislative process and the legislature

Competence in translating policies into effectively implementable legislation.

Must never draft in ways that violate public interest.

Ethical matters
Drafters should refuse to carry out Ministry/Agency’s instructions if:

a) Instructions do not uphold the Rule of Law

b) Drafting the law will violate the Constitution.

Should a drafter draft a law that violates personal conviction?

Thursday, 29th August 2013

DESIGNING A LEGISLATIVE SOLUTION

Methods of Problem – Solving in the Analysis of the Legislative
Solution
 End – Means Analysis (the drafter invents as many routes to the objectives on the
proposed legislative text as possible and selects the most socially cost-effective
solution.) As a result, the drafter’s response to the social need is limited to solutions
conforming with the values of those in power. End – Means Analysis carries dangers of
an ethical and moral nature.

 Incrementalism (it accepts that the drafter cannot ensure knowledge of all possible
situations, solutions and implications and purposes that the drafter moves gradually and
with extreme caution; it is useful only in cases where there is a serious gap.)

 Reason informed by experience: Developing new ways of doing things by reflecting on

the facts presented by experience. Look at the proposal presented before you design a
solution informed by previous successful experiences.

Designing a Legislative Solution: What is it?

Question 5; Thursday, 17th November 2011:
You are a legislative drafter in the ministry of Justice and
Constitutional Affairs in the Republic of Kenya. You’ve been
 given instructions to prepare a bill establishing the industrial
Court with jurisdiction to hear and determine all labor disputes
in Kenya, the court has the same jurisdiction as the high Court,
the presiding judges must have similar qualifications as a person
qualified to serve as a judge of the high Court.
Taking into account the provisions of the Constitution of Kenya,
prepare a legislative plan, setting out clearly the checklist for
legislation establishing and regulating the court. [15 marks]

This is the compilation of a legislative plan, also known as legislative research report.

It involves a brief or longer report on the basic elements of the drafter’s response to the
drafting instructions.

It does not need to be complete but a written …

The Advantages of Designing a Legislative Solution

The design of a legislative solution ensures that the end result of legislation is what is expected
from the policy makers: often matters of policy arise when the drafter attempts to transform an
idea to a legislative text; thus, the design acts as a Bill’s quality control.

A complete design of a legislative solution identifies all elements of the proposed legislation
thus preventing disruption of drafting: before drafting is attempted the design of the legislative
solution will attribute prominence…

A complete design of a legislative solution identifies all elements of the proposed draft and
allows the drafter to analyze each one separately and in turn thus encouraging logical
structures and complete solutions: thus a design before drafting begins results to: the division
of long instrument into distinct parts; a logical relationship between the parts and the whole:
and a rational sequence of normative provisions in a rational sequence.

By identifying the elements of the legislative solution, the design ensures that the drafter
examines all relevant evidence and facts and that these facts are classified logically.

Designing a legislative solution assists the drafter to estimate a realistic time-scale.

Designing a legislative solution facilitates delegation and management of the drafting within the
office.

What are the elements of analysis of legislative proposals?

  Analysis of the existing law
 Analysis of the necessity of legislation
 Analysis of potential danger areas
 Analysis of the practical implications of the legislation
 Analysis of practical implications of the legislative proposal including an analysis of
matters for which secondary legislation is likely to be needed to implement the draft
law.

Analysis of existing law

The analysis of the legislative proposal as detailed in the drafting constructions begins with the
analysis of the analysis of the existing regulation of the topic by current laws as interpreted,
implemented and supplemented by court decisions and academic opinion. Comparative
research can also be included at this point.

For the purpose of analysis, all legislation must be considered as an amending law. This
generally accepted rule ensures that drafters focus on the legal implication of the proposed
legislation exercising acute alertness with regard to the analysis of existing law. This analysis
must reply to the following questions: what must be amended? What must be repealed? And
how! Express or implied repeals? What must be preserved? What must be added?

Analysis of the necessity of legislation as a solution to the identified

social need
Legislation must be viewed as a solution of last resort. It is necessary for the drafter to assess
whether the identified social need can be addressed by reference to self regulation,
agreements between employers and employees or other innovative solutions.

Analysis of potential danger areas

Competence issues

Proposals affecting personal rights (such as proposals affecting social benefits, pensions, access
to justice, electoral rights, freedoms or non-discrimination)

Proposals affecting private property rights (namely proposals granting powers of access to
private property, search, seizure, detention or forfeiture of private property)
Proposals to introduce powers to the government (Executive) without necessary parliamentary
authority [such as proposals to introduce taxation legislation without specific parliamentary
(authority)]

Proposals for retrospective legislation (according to Prof Good Hart criminal retrospective
legislation must be viewed with extreme caution; civil retrospective legislation can be accepted
if the law is certain and stable; it is general in character; and it is not subject to alteration in
regard to specific individuals.)

Proposals for extra-territorial legislation (in principle extraterritorial legislation is a shock to the
legal system; however, it may be imposed in the case of transnational social needs, such as for
the regulation of transnational legislation.)

Proposals which are not in compliance with international law (such as the expropriation of the
property of foreign individuals without compensation)

Proposals of doubtful territorial or constitutional competence

Proposals which are unnecessarily bureaucratic (such as proposals introducing complicated

licensing or permit systems)

Proposals affecting interests of other government departments or public bodies

Content of the Design Legislative Solution

Identification of the causes of the problematic behaviors behind the social need

Preliminary choices

Delimitation of the scope of the legislative solutions: identification of the specific behavior to be
addressed and differentiation from other intertwined behaviors

History of the social problem as means of understanding the elements for its regulation

Comparative experiences

Conformity inducing measures (punishments; civil damages or penalties; rewards; indirect

measures)

Description of the proposed solution

Analysis of the effectiveness of the proposed legislative solution

Analysis of the Bill’s probable cost and benefits

Identification of the monitoring and feedback systems

Justification of the Bill’s implementing provisions (such as the subjection of new duties)

Analysis of the Practicability of the Legislative Solution

The analysis of the practical implications of the legislative solution and the reasons for
preference of the specific solution must be included in the drafting instructions. Nevertheless,
the drafter is often called upon to conduct this analysis in order to supplement incomplete
drafting instructions and to verify complete instructions.

Another element of practicability identification of matters for which secondary legislation is

likely to be needed to implement

Problem solving in the Design of the Legislative Solution

Identify the difficulty described in the drafting instructions.

Identify the reasons behind the problematic behaviors which cause the social need which the
proposed legislative text aims to address.

Design solutions which address the problematic behaviors behind the social need which the
proposed legislative text aims to address.

Identify the monitoring and implementation mechanisms which will ensure that after
enactment, the proposed legislative solution will be controlled for effectiveness and adjusted if
and when necessary.

Design solutions which address the problematic behaviors behind the social need which the
proposed legislative text aims to address.

Identify the reasons behind the problematic behaviors which cause the social need.

Thursday, 17th November, 2011; Question 5

You are a legislative drafter in the Ministry of Justice and

Constitutional Affairs in the Republic of Kenya. You’ve been
given instructions to prepare a Bill establishing the Industrial
Court with jurisdiction to hear and determine all labor disputes
in Kenya, the court has the same jurisdiction as the High Court,
the presiding judge must have similar qualifications as a person
qualified to serve as a judge of the High Court.

Taking into account the provisions of the Constitution of Kenya,

prepare a legislative plan, setting out clearly the checklist for
legislation establishing and regulating the court. (15 Marks)
Wednesday, 18th September 2013

PROCEDURE FOR ENACTING LEGISLATION

The Constitution provides for the procedure under Part 4;

Article 109: Parliament to exercise legislative power through Bill passed by parliament and
asserted by the President;

A Bill therefore is a legislative proposal;

Any Bill may originate in the national Assembly;

Bill not concerning County Governments is considered in the National Assembly and passed in
accordance with Art 122 and Standing Orders of the Assembly;

Bill may be introduced by any member or committee of the relevant House;

Money Bill may be introduces in the National Assembly in accordance with Article 114.

Bills Concerning County Governments

Art 110 of the Constitution;

These are Bills with provisions affecting powers of the county governments, Bill relating to
election of members of a county assembly or a county executive, or a Bill affecting finances of a
county government.

Speakers of both houses must jointly resolve whether a Bill concern counties and whether it is
special or ordinary before either house considers the Bill;

When any Bill has been passed by either House the Speaker of that House refers it to the
Speaker of the other House;

If both Houses pass the Bill in the same form, the Speaker of the House in which the Bill
originated shall refer the Bill to the president for assent.

Special Bills concerning county Assemblies (Art 111)

N.A may amend or veto a special Bill that has been passed by the Senate by a resolution
supported by at least 2/3 of the members of the Assembly.
If a resolution to amend or veto fails to pass, the Speaker of the N.A shall refer the Bill in the
form adopted by the Senate to the President.

Ordinary Bills concerning County Governments

If one House passes an ordinary Bill concerning counties and the Second rejects the Bill, it shall
be referred to a mediation committee appointed under Art 113.

If Mediation Committee fails to agree within 30 days or if the Bill is automatically defeated

[….]

MONEY BILLS (ART 114)

Money Bill only deals with issues of taxes, imposition of charges on a pubic fund or variation or
repeal of any of those charges; the appropriation, receipt, custody, investment or issue of
public money; raising of guarantee of any loan or its repayment; or matters incidental to any of
those.

President Assent
President to assent within fourteen days after receipt of Bill or refer it back to parliament for
reconsideration noting any reservation that the President has;

Parliament must consider the Bill with reservations by amending it in light of the reservations or
pass the Bill a second time without amendment.
 THE LEGISLATIVE SENTENCE, LANGUAGE AND SYNTAX
INTRODUCTION
The legislative sentence is the means the drafter uses to translate policy into law.

In each sentence there must be:

 The legal subject – the person to whom the law is to apply

 The legal action – the law which is to apply, and

 The circumstances in which the law is to apply

The legislative sentence is an arrangement of words to express a command or state a

prohibition. It confers a power or imposes an obligation. It states:
 How, the manner in which the law is to operate

 What, the nature of the legal action

 When, the conditions under which the law is to operate

 Where, the circumstances in which the law will operate

 Who, the legal subject, the person given responsibility or on whom is placed an
obligation or prohibition.

 Why, the policy considerations of the law.

A drafter should use-

 Short familiar words and phrases

 Short sentences which state only one thing

 Use the same word or express one meaning

 Consistent spelling

 The standard form language of the drafting office

A drafter should not use:

  Archaic words such as;the said, same, aforesaid, before-mentioned, herein before-
mentioned, whatever, whatsoever, whomsoever, and/or, pursuant to (under), and
similar words.

 Latin expressions.

 More words that necessary; For instance, all and singular, Aid and abet, each and every,
Full force of the law, null and void, will and testament, unless and until, as to whether
this happened, by reason of, in lieu of, in relation to, in the event that (if), permitted to
may)

TENSE
Laws are meant to be of continuing application and should be written in the present tense. This
avoids complicated and awkward verb forms. The active voice should be used instead of the
passive.

Illustration:

Do not write: The function of the board will be or will include or shall include.

Write: The function of the board is … or includes.

Do not write: A contravention of a provision of this Act shall be an offence.

Write: A contravention of this Act is an offence.

Do not write: A person may make an application

Write: A person may apply

Do not write: A person who shall permit a dog to soil a pavement shall commit an offence

Write: A person who allows a dog to soil a pavement commits an offence

Do not write: Up to nine persons may be appointed by the Cabinet Secretary to be members
of the Advisory Committee

Write: The Cabinet Secretary may appoint up to nine persons as members of the
Advisory Committee.

Use of the passive voice should be avoided because:

  A sentence in the passive voice does not assign responsibility clearly. For instance,
assigning general rights.

 The passive voice places the receiver of the action before the main person, and

 Passive construction is confusing when used in legislation

Exceptions where the passive voice may be used:

 When the person to carry the act is unknown, unimportant or obvious. For example, the
letters have been dispatched.

 To avoid the use of gender specific language

 To put old or repeated information at the beginning of a sentence, new information at

the end of the sentence to stand out.

SHALL
The drafter should use “shall” to impose a duty or an obligation.
Illustration; a driver shall provide a license on demand.

“Shall” should not be used to predict the future. Where the intention is to predict future action,
the word to use is “will”

A drafter should avoid the use of “shall” to confer a right.

Do not write: You shall receive.

Write: You are entitled to.

Do not use “shall” to state a rule of law or how it applies. This creates a false imperative.

Illustrations:

Do not write: A person shall be eligible to apply for…

Write: A person is eligible to apply for…

Do not write: A person who commits an offence shall be liable

Write: A person who commits an offence is liable …

Do not write: It shall be unlawful.

Write: It is unlawful.

ANY
“Any” means one or some.

It is often misused in a legislative sentence when one person or thing is being referred to.

It can often be replaced by “a”, “an”

Illustration:

The Cabinet Secretary must consult any organization which appears to the Cabinet Secretary to
represent a substantial number of coffee growers.

The Cabinet Secretary must consult an organization which appears to the Cabinet Secretary to
represent a substantial number of coffee growers.

EACH
“Each” refers to two or more in a numerical context where there has been previous
identification. Used when referring or laying emphasis on an individual from an identified pool.

Illustration:

There are ten attorneys in the Division. Each is a lawyer of ten years standing

EVERY
“Every” implies a class.

Illustration:

Every attorney is a lawyer.

The reference in this example is to each attorney of an identified class.

ALL
The word “all” is a spurious form of emphasis and should not be used. All is used for purposes
of determining collective responsibility.

Illustration:

All elected members hold office for three years.

SUCH
“Such” is misused in legislation and creates ambiguity.

It should be substituted with the word “the”, “a” or “that”.

SAME
“Same” is used as a preceding noun or phrase in legal jargon and does not add to a legislative
meaning.

It should not be used as it creates ambiguity.

The word “it” or “them” can be used as a substitute

AND
“And” is usually construed conjunctively and connotes togetherness.

A drafter should use “and” to connect two or more phrases, conditions or events all of which
must occur

Illustration:

The register includes;

a) each person who is seventy years or older;
b) each person who is permanently physically disabled; and
c) each person who has been declared mentally incompetent.

OR
“OR” is construed disjunctively and suggests a choice between two or more options.
A drafter should use “or” to connect two or more phrases events, conditions, when only one or
more but not all need occur.

Illustration;

The register includes each person who:

a. Is seventy years or older, or
b. Is permanently physically disabled, or
c. Has been declared mentally incompetent.

WARNING
Never use “and/or” rather use “A or B or both”

A, AN, THE
“A” is used as an indefinite article in legislative drafting to denote the singular, often as part of a
general statement.

“An” is used before a vowel.

“The” is used as the definite article. It is placed before a noun.

Examples:

A citizen shall possess an identity card.

The citizen shall possess an identity card before applying for a passport

The identity card must always be carried.

An entity that is required to be licensed must submit an application to the Commissioner.

DEEM
Deeming clauses should only be used to create a legal fiction.

It may be used to provide for the retroactive operation of an Act.

Example.

This Act is deemed to have come into force on the first day of January 2000.
In order to avoid a legalism, “consider” or “thinks” can be used instead of “deem” in situations
where a legal fiction is not being created.

Example;

A doctor shall be registered to practice medicine if the Registrar considers the doctor to be
qualified.

BEFORE AND AFTER

“Before” and “After” exclude the specified day.

“After” is better than “from” because “from” is equivocal.

Example.

After 13th March, excludes March 13th.

From 13th March is debatable although 13th March is probably excluded.

The phrase “on” and “after” should be used when the specified day is to be included.

Example:

The phrase, between 1st January and 1st March is ambiguous. After 1st January and before 1st
March is preferable.

WHERE
The use of the word “where” conveys a description of a factual situation; suggesting a place or
venue, referring to situations, to define a set of circumstances.

Example:

Where dogs are running at large.

WHEN
The use of “when” in legislative drafting is to indicate a single or rare concurrence or
occurrence of a contemplated event. You are not certain that the events will take place.

Example
When the fees has been paid…

The drafter may use “if” to state a condition in a legislative sentence.

WHICH AND THAT

“Which” is non-restrictive, “that” is restrictive.

If the insertion of a comma in the phrase does not change the meaning use “which”, otherwise
use “that”.

A nonrestrictive clause is one which can be omitted or placed between brackets without
destroying the meaning and is set off by commas.

Example;

Section 10 which was amended in 1956 was repealed in 1966.

A non-restrictive clause does not need to be set-off by commas.

BY, UNTIL, TILL

Where action is to be taken by a stated date or until or till a date, action on that day is
permitted. It is better to say “not later than” or “before”.

Words of authority
Use words of authority with care.

When drafting rules, contracts, and other forms of legal documents, be precise and consistent in using
words of authority such as ‘must’, ‘shall’, ‘will, ‘may’,’should’ and their negative forms, such as must
not, and will not.

Don’t use ‘shall’ for any purpose because it is simply too unreliable

PUNCTUATION
Punctuation is used by the drafter to assist the reader of the law to understand the text easily.

There are general rules about punctuation as follows:

PUNCTUATION RULES
Punctuate sparingly and with purpose. Unnecessary punctuation can be very distracting, the
drafter should ensure that every punctuation mark must serve a purpose.

Punctuate for structure and not for sound. A drafter should test every punctuation mark to see
whether it assist in explaining the structure of the sentence.

Be conventional. While most other forms of prose writing admit a measure of individuality,
legislative drafting does not. The drafter should adhere to the conventional use of punctuation
marks.

Be consistent. Inconsistency is the most common error in the area of punctuation. A haphazard
use of punctuation marks, especially the comma can destroy the value of punctuation.

THE FULLSTOP (PERIOD)

As a general rule, every sentence should end with a full stop.

There should not be a full stop in the following:

 After an abbreviation or contraction.

 After a heading.

 There is no full stop after a title.

 After a number.

 After a symbol or currency or measurement.

THE COMMA
A comma may be used to separate items in a series of words, phrases or clauses.

Separating comma and Enclosing Comma

Use a comma after introductory elements. Separating comma may separate an introductory
modifying clause or phrase from what follows.

Illustration;

When amount of compensation payable is determined, the Cabinet Secretary

must issue a certificate.

If the introductory clause is short, then a comma is not necessary.

Separating comma may be used to separate items in a series. If a sentence has a series of three
or more items, join with one conjunction, put commas after each item except the last. If the
series is simple, you can omit the comma before the conjunction. If the series is complicated,
use semicolons rather than commas.

Illustration:

A person who willfully alters, conceals, destroys or refuses to produce a register

commits an offence and is liable.

Livestock means cattle, horses, goats, sheep and pigs.

A separating comma may separate long independent clauses joined by coordinating

conjunctions such as: and, but, or, so, yet, for, noret cetera.When you use a coordinating
conjunction to join two independent clauses into one sentence, put a comma before the
conjunction. To join two independent clauses properly, you need both the comma and the
conjunction.

A comma may separate words or numbers in order to facilitate communication.

Illustration:

In 1996, 16 subsidies were granted.

In 2005, one hundred chicken were sold.

Enclosing commas

They only operate in pairs. If one is omitted, the other remaining bit is useless.

Use commas to set off nonrestrictive elements.

 The car, which is blue, ran the red light.

Use commas to set off parenthetical elements.

The president’s indictment was, to say the least, unexpected.

Use commas to separate coordinate adjectives. Two or more adjectives are coordinate when
they modify a noun equally. They should be separated with commas.
The plaintiff was driving an old, ratty, blue truck.

If one adjective modifies another, do not separate them with a comma.

Use commas to set off transitional or interrupting words and phrases.

The conclusion, therefore, is that…

Attorney advertising is a type of commercial speech; therefore, it deserves…

We submit, Your Honor, that the…

Use commas to set off dates, titles, geographic names, and short quotations.
Tuesday, July 6, 2007, is the termination date.
Jane Sherwood, M.D., testified.
Seattle, Washington, is the…
The witness said, “The red car was speeding.”
The statute banned smoking, “in any public building.”

To separate long and independent clauses joined by coordinating conjunctions such as and, but,
for, nor, or and so.

APOSTROPHES
Use apostrophes to form possessives.

Used to form the plural of some terms.

Illustration
(She got mostly B’s in school.)

Use apostrophes in contractions and abbreviations.

THE COLON and Dash

For purposes of drafting, use a colon to introduce a series of paragraphs, a list or tabulation.

Use a colon to introduce a summary, or elaboration, or illustration of what precedes it.

Use a colon to introduce a long quotation.

Illustration: Dash
In this Act car does not include-
a) goods vehicle
b) an omnibus
c) a motorcycle; nor
d) an invalid carriage

Illustration: Colon

The corporation must forward to the Cabinet Secretary the following:

a) notice of the address of the registered office; and
b) a copy of the constitution

Never combine a dash and a colon (:-)

THE SEMI-COLON
The function of the semi-colon is to show a relationship between elements of a sentence which
a complete break into separate sentence may obscure.

It is a mark of co-ordination.

A semi-colon is used in two ways:

 It may join in one sentence two independent clauses which are closely related to make
it desirable for purposes of showing their coherence in one sentence.

 The semi-colon is also used to co-ordinate a series of paragraphs, subparagraphs or

listed items.

If a series of paragraphs is followed by words applied in all the paragraphs then the paragraphs
should be separated by commas. This serves as an exception to the rule that we use semi-colon
to separate paragraphs.

Illustration:

A person aggrieved by the action of a county government

a) in rejecting plans,
b) in fixing or refusing to extend any period, or
c) in imposing or refusing to vary any building condition,
 may appeal to the Governor within the time stipulated and in the manner

If a series of paragraphs is a collection of compositions, independent but connected, then they

should be separated by semi-colons and introduced by a colon.

Illustration

The corporation must forward to the cabinet Secretary the following:

a) notice of the address of the registered office; and
b) a copy of the constitution.

The Commission shall be the co-coordinating agency for the enforcement of:

 The Anti-Money laundering Act, 2003 (Act 102);

 The proceeds of Crime Act, 1995 (Act 103);

 The Miscellaneous Offences Act (Act 104); and

 Any other law or Regulations related to economic and financial crimes.

Use a semicolon to join two independent clauses without a conjunction.

Use a semicolon when two independent clauses are joined by a transitional expression.

Use semicolons to separate the items in complicated series.

HYPHEN
The hyphen should generally only be used when the word’s proper spelling includes a hyphen.

The following are exceptions to this rule:

 Hyphenate if the second element of the word is capitalized or a figure.

Illustration:

Anti-Semitic

Pre-1914

Follow common usage in hyphenating compound modifiers.

Use hyphens for compound numbers and fractions.

Use a hyphen to divide a word at the end of a line.

PARENTHESIS
Parenthesis is usedforgiving examples, explanations and illustrations that are connected with
the message of the sentence.

They must be used with care because they have a probability of diverting attention.

In legislation, they are used to explain.

Illustration:
No person may subdivide land, unless the subdivision is effected by a transfer, exchange, or
other disposition of land made by an order under section 129B of the property law Act 1974
(which relates to the granting of access to land locked land).

Use parentheses to avoid ambiguities.

Use parentheses when you want to label the items in a series.

Use parentheses to introduce shorthand expressions you will use later.

THE USE OF PROVISO

They are no longer used in modern drafting.

The purpose is to create an exception.

The proper approach today is that when you are preparing legislation and want to introduce
exceptions use the word except and then list them as exceptions.

Phrases with the words “provided that” should be avoided because they create ambiguity, they
can often be removed or substituted by the word “if”.

Example:

Do not write: Provided that the fee is paid.

Write: If the fee is paid.

Split infinitives
A split infinitive is a grammatical construction where a word phrase, usually an adverb or
adverbial phrase occurs between the maker “to” – and bare infinitive form of the verb.

In English, an infinitive verb fulfils the function a noun and is formed with “to”; for example, to
take, to laugh and to be..

An example of a split infinitive is “…to boldly go where no man had gone before.”

The infinitive is “to go” and it is split by the adverb “boldly”

Example:

 The courts’ intention.

 Children’s television

 Farmer’s co-operative association

POSITIVE WRITING
The drafter should write positively; if an idea can be expressed either positively or negatively, it
should be expressed positively.

Example:

Do not write: The panel may not consider candidates other than those with second-
class upper degrees.

Write: The panel will only consider candidates with second-class upper degrees.

The use of several negatives in one sentence should not be used. A negative can be expressed
in positive from such as:

Did not remember - Forgot

Left out - Omitted

Did not pay attention to- Ignored

Beware of sentences that contain more than one negative expression.

When you find that you have written a sentence with multiple negatives, identify each negative
term. Then pair as many of them as you can to turn them into positives. Rewrite the sentence
using as many positives and as few negatives as you can.

CAPITALIZATION
The drafter should use capital letters sparingly.

Use capitals to begin a sentence, to refer to titles, nouns et cetera.

Capital letters should be used for proper names.

Example:

Ghana.

Lesotho.

Capitals should not be used to begin each paragraph in a series of paragraphs.

Capitals are also used where reference is being made to important officials, statutory bodies or
administrative bodies.

The names of private organizations can be capitalized.

The use of capital letters should be restricted to cases where special attention is drawn to
particular circumstances.

Example

Minister may by legislative instrument make regulation.

Do not write: Be sure to promptly attend to the clients…

Write: Be sure to attend promptly to the clients; or be sure to attend to the

clients promptly.

Capitals should not be used to define each word in a series of definitions.

Use capitals for:

 Act of Parliament.
  Names and titles of persons of considerable eminence, for example, President, Chief
Justice, Governor, Attorney Generalet cetera
 For words of general significance if used in a special or technical sense. For example,
referring to a Dispute Tribunal
 We do not use upper case for words such as ; quote, judge, government unless they
have a similar specific sense for example, if referring to the institution known as Court of
Appeal, Government of Kenya

NOUNS: SINGULAR OR PLURAL

In rule drafting, prefer the singular number.

Use singular unless you can articulate a sound reason for using the plural.

Most common reason for using the plural is to refer to a group of people rather than to
individuals within the group.

The use of a singular noun instead of a plural noun avoids the problem of whether the rule
applied to each member of a class or to the class as a whole.

Example:

The doctor will treat each patient suffering from typhoid, fever and malaria fever.

If the plural must be used in a compound word, the significant word takes the plural as shown
below:

Do not write Write

Attorney-generals Attorneys general

Notary publics Notaries Public

Director-generals Directors general

ABBREVIATIONS
The drafter should avoid abbreviations and acronyms.

Example:
The acronym should be written in full as non-government organization which can be shortened
in the definition section to:

“Organization” means a non-governmental organization.

An exception is where the acronym has become familiar to the public

Example:

 AIDS rather than Acquired Immune Deficiency Syndrome.

 DNA rather than Deoxyribonucleic Acid

COUPLETS
Where words have the same effect or the meaning of one word includes the other, the drafter
should not use word pairs.

Do not write Write

Order and direct Authorize or direct

Means and includes Means or includes

Each and every Each or every

Null and void Null or void

Full and complete Full or complete

LISTING
When listing membership of a body, a use comma as the sentence is continuous. Use a colon at
the end of the introductory words and semi-colons at the end of each paragraph when listing
objects and functions in tabular form. After the penultimate item, use “and” or “or” as
appropriate.

PARAGRAPHS
Short paragraphs improve the clarity of a provision. Each paragraph should deal with a single
topic. Lengthy, complex or technical provisions should be split into a series of related
paragraphs.

GENDER – NEUTRAL LANGUAGE

The use of gender neutral language is best practice in legislative drafting. The reflection of male
dominance in the legislative sentence should be avoided.

Avoid sexist language.

Many readers, both male and female, will be distracted and perhaps offended if you use
masculine terms to refer to people who are not necessarily male.

Don’t use expressions that imply value judgments based on sex.

Illustration; Don’t write “Amanly effort.”

Use sex-neutral terms if you can do so without artificiality.

Use parallel construction when you are referring to both sexes.

For instance; Write, Husbands and wives; do not write men and their wives

Don’t use a sex-based pronoun when the referent may not be of that sex.
For instance; don’t use ‘he’ every time you refer to judges.

Always use gender neutral language.

Illustrations:

Fireman Fire fighter

Workman Worker

The ship is manned The crew

Chairman Chairperson

Draftsman Draftsperson

Nurse Health personnel

Do not write: An employee must wear his identification card.

Write: Employees must wear their identification cards.

Do not write: He must present his application to…

Write: Each application must be presented to…

Do not write: The supervisor or his representative must inspect the work done.

Write: The supervisor or the representative of the supervisor must inspect the
work done.

Do not write: The director shall hold office until his successor is appointed.

Write: The director shall hold office until a successor is appointed.

It is often necessary to repeat words to achieve non-sexiest: engage where a nominalization is

placed with a verb form, for example:

Do not write: A person who has stolen goods in his possession

Write: A person who possesses stolen goods commits a crime.

Define the term “nominalization” (2 marks)

Identify nominalizations contained in the

sentence below and re-write the sentence to
replace the nominalizations.

“To provide its customers with an extra measure

of satisfaction, special authorization has been
given by Family Mart Supermarket to its
supervisors to institute an exchange of
merchandize within ten days following the
purchase by the customers.”
(3 marks)

ARCHAIC WORDS
Legalese in archaic words should be avoided as it mystery “heretofore” or other similar words
should not be used; a possible word “hereby” although the phrase “by this Act” can be used as
institute.
EXPRESSING NUMBERS
In legislation, numbers should be expressed in words. Wrong figures can be typed accidentally if
figures are used. In Schedules however, figures may be used.

WORD ECONOMY
Verbosity should be avoided and legal language should be as direct as possible.

SECTIONS AND SUBSECTIONS

An Act of Parliament is divided into sections which contain one idea. If the sentence is long, it
should be divided into subsections, when these are read together they should convey the same
idea. Sections are numbered in Arabic numbers consecutively and subsections are also
numbered consecutively but in brackets.

Where the section subsection is long, it is best to divide it into paragraphs to create a full
sentence when read with the introductory words and possible including words. Paragraphs are
numbered with lower case letters of the alphabet in bracket.

Further sub-divisions of paragraphs are sub-paragraphs numbered with small numbers. The
legislative sentences of a Constitution are called Articles. The divisions are called clauses. In
subsidiary legislation, the sentences are referred as to regulations and the sub-divisions as sub-
regulations.

REFERENTIAL LEGISLATION
Where reference is made in one legislation to another, it is important to ensure that the
imported legislation fits in. there may be problems with the meaning of words where this has
changed due to judicial precedent. In order to avoid the situation where reference is made to
another enactment to determine meaning, the provision from the referred text should be
repeated.

USES OF PRECEDENTS
Very few things are novel, the drafter can benefit from information gained from the laws of
other jurisdictions, more especially with the access information communication technology had
provided. This reference should however be handled with caution since the circumstances in
each country differ. It may better to base a draft on precedent within the jurisdiction than to
modify foreign legislation carelessly.
Thursday, 1st August 2013

Question 6; Study the following statutory provision and break it up into separate
legislative sentences, in your own words, but without changing the meaning. Where
possible each sentence should begin with the relevant legal subject, then the legal
action, and then the context. Make sure that you use proper punctuation and in and
out denting.

Section 86A (5) Income Tax Act

(5) if an intending appellant wishes to appeal against a decision of the Tax

Court to the Court of Appeal, the Registrar of the Tax Court shall submit the
notice or notices of intention to appeal lodged under subsection (3) to the
president of the Tax Court who shall, having regard to the contemplated
grounds of the intended appeal or appeals as indicated in the said notice or
notices, make an order granting or refusing, as he sees fit, leave to appeal
against such decision to the said court and the order so made shall be final.
(15 marks)

August/September 2010

Question 5; Study the following two statutory provisions and break up each
provision into separate legislative sentences, in your own words, but without
changing the meaning. Where possible, each sentence should begin with the
relevant legal subject, then the legal action, and then the context. Make sure
that you use proper punctuation and in - and out - denting.

Provision A

Section 86A (5) Income Tax Act

(5) if an intending appellant wishes to appeal against a decision of the

Tax Court to the Court of Appeal, the Registrar of the Tax Court shall
submit the notice or notices of intention to appeal lodged under
subsection (3) to the president of the Tax Court who shall, having
regard to the contemplated grounds of the intended appeal or appeals
as indicated in the said notice or notices, make an order granting or
refusing, as he sees fit, leave to appeal against such decision to the said
court and the order so made shall be final.
(7 marks)

Provision B
 Section 43 (1) of the Customs and Excise Act, 1964 (amended by section 124 of
Act 60 of 2001)

1) If entry of imported goods has been made under the provisions of section
38 –
(a) In the case of goods in a container depot, within 28 days from the date
the goods were landed; or
(b) In the case of any goods, on expiry of the prescribed period, the master,
pilot or other carrier, container operator, person in control of a transit
shed or other person who has control of such goods shall furnish a list
thereof together with all available documents to the Commissioner and
shall remove the goods to-
(i) The government warehouse
(ii) Such other place indicated by the Commissioner.
(c) The Commissioner may-
(i) Where any such person fails to remove the goods as required in
terms of subparagraph (i) and (ii) at the risk and expense of such
person, so remove the good, or
(ii) Allow the goods subject to such conditions as the Commissioner
may impose, to remain under the control of such person.
(8 marks)

NUMBERING AND LETTERING OF LEGISLATION –

PRACTICE
For Acts of Parliament, start with section, then subsection, then paragraphs, then
subparagraphs.

Part 1

Sub-part (sub-division) 1

1) Section
a) Subsection
i) Paragraph
(1) Subparagraph

For regulations, rules and orders start with regulation, then sub-regulation, then paragraph,
then sub-paragraph.
1) Regulation
a) Sub-regulation
i) Paragraph
(1) Subparagraph

For Orders,

1) Order 1
i) Rule 1
(a) Sub-rule (1)
1. Paragraph (1)
i. Subparagraph (i)

REFERENCE TO LEGISLATIVE PROVISIONS

When referring to legislative provisions, use figures rather than words.

Illustration

Section 27 not section twenty seven

Part 3 not part three

Section 14 (4)(a)(i) and (iii)

THE STRUCTURE OF A BILL

Preliminary provisions
 Arrangements of sections (for statutes and clauses for Bills)
 Long Title – purpose or summary of what the Bill is all about.
 Preamble
 Enacting formula – It is a constitutional requirement
 Short Title – “Takes the form …”This Act may be cited as…””
 Commencement – It is not necessary since the Constitution has mentioned it. Not more
than six months from the date of signing.
 Interpretation provisions – Definition of the terms of the Act.
 Application

Principal provisions
 Substantive provisions. They provide for the substance of the law.
  Administrative provisions. These create the implementing authorities, establishment of
bodies et cetera.

Miscellaneous Provisions – General or supplementary

Miscellaneous and supplementary provisions include financial matters, offences, power to
make regulations, search, seizure and arrest.

Final provisions
 Savings
 Transitional provisions
 Repeals and consequential amendments
 Schedules

Arrangement of sections
The arrangement of sections is on a separate page immediate before the Act

The wording is the same as that used for the head notes or marginal notes in the Act an\d
serves as s useful index to the Act

It does not form part of the Act and is not subject to debate in Parliament

Arrangement of parts
A Bill should only be divided into parts when each Part standard alone to form the subject of
another Act, otherwise headings should be used in provisions

Head notes and marginal note

Each section is given a head note or marginal note and this provides a guide to the contents of
the section. It must be short and accurate and no attempts should be made to set out a
summary of the whole contents of the section.

The appropriate head note or marginal note is often difficult

Long title
This is the starting point of the Act and indicates the general purpose and intention of the
legislation. It must be introduced to Parliament as a Bill first.

A BILL FOR AN ACT…

The Preamble
It is an aid to construction to explain the reasons for an enactment

They are seldom used nowadays and are limited to Acts dealing with constitutional matters or
the application of international conventions or Acts of historical or ceremonial nature.

Enacting formula
This is generally provided for in the Constitution, the Interpretation Act or other legislation
dealing with this and other matters concerned with the procedure of Parliament.

ENACTED by Parliament as follows-

It comes right after the long title.

Thursday, 15th November 2012

Question 5: The Kenyan Government has decided to establish a
corporation to establish a corporation to be known as the
Nuclear Atomic Commission. The Commission’s primary
mandate shall be to prepare Kenya for the production of nuclear
energy and to manage any such nuclear plants. The commission
must have between three and five members, including the
chairperson. The members must be Kenyan and must be
qualified in science-related fields. At least one must be a lawyer
to provide guidance on legal matters.
You are a parliamentary counsel in the Drafting Department.
Prepare the draft Bill establishing the commission. [15 marks]

Question 6 (b); Prepare an amendment Bill to Article 97 and 98

of the constitution to ensure that the “one third gender rule” is
observed in the membership of the National Assembly and the
Senate. [The relevant provisions of the Constitution are
reproduced for ease of reference.]

Question 6;Thursday, 21st July 2011:

You are a drafter in the State Law Office. (Using instructions in
question 5 above,) prepare an amendment Bill creating the
Authority to implement the Sexual Offences Act.

Question 6; Thursday, 4th November, 2010:

[…facts provided] Prepare the Bill establishing the Commission.
The Bill should establish the Commission as a body corporate
with all attributes of a legal person. Provide for appointment of
Commissioners by the President upon approval by parliament.

The Bill must clearly provide for:

a) appropriate title;
b) establishment of the Commission and its composition;
c) objects and functions of the Commission;
d) term of office, and
e) clause on offences.
Do not include provisions on reporting and finances.
(15 marks)

Question 5 August/September 2010:

[…Instructions given…]Draft the Bill
(15 marks)