INTRODUCTION TO

LAW SEMINAR 1
BAR 307 |ELEMENTS OF LAW
BACHELOR OF ARCHITECTURAL STUDIES

DEPARTMENT OF ARCHITECTURE &

BUILDING SCIENCE
UNIVERSITY OF NAIROBI

23-01-2023
GROUP MEMBERS
1. B02/0923/2015 NYAGAKA Brian Ongubo 7. B02/1157/2020 IRERI Shem Munyi

2. B02/140242/2020 WABWOBA Emmanuel Heri 8. B02/141197/2020 ZACHARIA Hussein Mohamed

3. B02/1143/2020 MUTHOMI Ken Mike 9. B02/140642/2020 MACHARIA Zawadi Macharia

4. B02/1158/2020 NYAMWEYA Samuel Mikaye 10. B02/140037/2020 CHEMITEI Ian

5. B02/140737/2020 OTSOLA Kevin Robert 11. B02/1151/2020 KIMINGI Joseph Karanja

6. B02/140742/2020 KIPKWEMBOI Sarah Cherop

CONTENTS
1. The meaning of the law
2. The classification of law
3. The significance of law
4. Law and morality
5. Sources of Kenyan law
6. Provisions of the Constitution of Kenya & their
Implications to Architects in Kenya.
MEANING OF LAW
MEANING OF LAW
• A command to do or abstain from doing a certain class of
acts, issued by a determinate person or body of persons
acting as a body, and involving the announcement, express
or tacit, of a penalty to be inflicted on any persons who may
disobey the command: it being assumed that the individual
or body announcing the penalty has the power and purpose
of inflicting it.
CLASSIFICATION OF LAW 1
MUNICIPAL LAW
• The law applied within a state. Also called civil law or the
law of the land.
• Public law - determines and regulates the organization and
functioning of the State and determines the relation of the
State with the subject
• Private law - regulates and governs the relations of citizens
with each other.
 Public Law
• Constitutional Law - law which determines the nature of the
State and the Structure of the Government
• Administrative law - deals with structures powers and the
functions of organs of the administration,
• Criminal law - defines offences and prescribes punishment
for them.
 Private Law
• Law of property - regulates sales, ownership, and mortgages
• Law of persons – concerns the legal position of the human
person (persona) comprising their rights, capacities and duties
• Law of obligations
 Law of contract – governs transactions among parties
 Law of quasi-contract
 Law of tort – deals with ‘compensation for damage that occurs when there is no
contract

• Family law - deals with marriage, adoption, right to a name

• Law of commerce - regulates transport of goods, etc.
INTERNATIONAL LAW
• The legal Process that concerns legal relations among
nations.
• Sources include: multilateral treaties, international customs
& generally recognized principles
• Divided into 2 classes:
 Public international law - body of rules which govern the conduct and
relations of States with other
 Private international law - rules and Principles according to which the
cases having foreign element are decided. Also called “conflict of
laws.”
SIGNIFICANCE OF LAW
IMPORTANCE OF LAW IN A SOCIETY
• Laws are rules that bind all people living in a community.
• It protects our general safety and ensures our rights are citizens against
abuses by other people, organizations, and the government itself.
• Laws exist at the local state national and international level.
• Law is important because it acts as a guideline as to what is accepted in a
society. This helps minimise conflicts between social groups and
communities
• Law protects individual rights and liberties
• Provides framework and rules to help resolve disputes between individuals.
• Helps the society to maintain order
ROLES OF LAW
• Helps to set a community’s standards
• Sets the standards for a country
• Helps in the regulation of taxes
• Enables people to be involved in various development activities
• Maintains social control
• Protects public order
• Facilitating and effectuating private relationships
• Facilitates orderly change
ROLES OF LAW
• Every citizen is governed by the same laws, applied through
a fair and equal judicial process to resolve disputes
peacefully.
• Faithfulness to the rule of law allows us to live in a civil
society in which everyone’s rights are respected, where each
of us is guaranteed liberty and equality of opportunity.
• As citizens we respect the laws because they are clearly
communicated and fairly enforced. Everyone is held
accountable to the same laws, and those laws protect our
fundamental rights.
ROLES OF LAW
• Faithfulness to the rule of law allows us to live in a civil society in
which everyone’s rights are respected, where each of us is guaranteed
liberty and equality of opportunity.
• As citizens we respect the laws because they are clearly
communicated and fairly enforced. Everyone is held accountable to
the same laws, and those laws protect our fundamental rights.
• Laws provide access to justice: Everyone in a society – and not just a
privileged few – must have equal access to justice through the law.
• The process of creating laws encourages civil and political
engagement. As societies change, laws must change too.
ROLES OF LAW
• Laws protect the most vulnerable in society: Many laws are
specifically designed to protect certain groups of people. Anyone
can be discriminated against, but as history shows, certain
people are more at risk. Laws designed to prevent discrimination
based on race, sex, gender, religion, and more protect these
groups and give them better access to justice.
• Laws offers people a variety of career options: As a career, law
is varied and versatile. Because there are so many different
areas of law, there are hundreds of job options. Lawyers can
specialize in everything from contracts to immigration to criminal
law. A person can also become a professor of law, while there
are also jobs for paralegals, consultants, and researchers.
ROLES OF LAW
• Laws are important to maintain peace: law is essential in maintaining
peace. This is because injustice fuels conflict. If destructive behaviours are
allowed to flourish without remedy, people will suffer and become
dissatisfied with their government. If justice is applied unequally, this also
fans the flames of conflict. For the sake of peace, societies need to
strengthen their rule of law and ensure that it’s fair.
• Laws are important for social progress: We’ve discussed how legal systems
should adapt and evolve with the times. If laws remained stagnant, so would
societies. Throughout history, law has been employed as a tool for social
change. The concept of law as a mechanism for social change is
complicated because if the majority of a community doesn’t agree with the
law, it’s likely that the law won’t be enforced. However, having a law on the
books gives people more power than if the law didn’t exist at all. It’s an
important step (though not necessarily the final step) to real social change.
SOURCES OF LAW
WRITTEN LAWS
• The Constitution
 a set of governing ground rules setting out rules and powers to the people being governed
 is the supreme law of the land, taking dominance over all other forms of law

• Judicature act
 Decisions made by judges develop into a source of law known as “case law”
 Original precedent: a decision by the judges on an issue that has never been determined by the
court before
 Binding Precedent: a precedent from an earlier case that must be followed even if the judge in the
latest case does not agree with the previous ruling
 Declaratory Precedent: The judge sticks with what the law has always been
WRITTEN LAWS
• Direct legislation - the statute laws made by parliament
• Subsidiary legislation - laws made when parliament
delegates the duty to other bodies such as the local
authority.
• Foreign legislations - Acts of parliament from other
countries
• Treaties - apply to hosting countries that are subjected to
laws made by regional bodies or grouping bodies due to a
signed treaty
UNWRITTEN LAWS
• Customary laws - governing practices and traditions that go on
for so long that they become part of unwritten laws. Applicable
only in civil cases such as the laws of marriage, divorce, and
succession
• Islamic law - Applicable in Kadhi courts when both parties
profess the Muslim religion concerning divorce, marriage, and
personal status
• English Common Law
• Equity
• International Customary Law
LAW & MORALITY
LAW AND MORALITY
• Laws are formal rules put in place by a state or nation that
govern a society while on the other hand
• Morality refers to informal principles and beliefs that act as
ways of life but are not legally enforceable.
SIMILARITIES BETWEEN LAW AND MORALITY
• laws were picked from what was deemed to be morally
correct
• Laws commonly abide by moral standards
• People are hence, hesitant to obey laws that are against
morality.
• many jurists in court align themselves with the opinion that
law and morality are the same, and thus rule in favour of
the moral side
DIFFERENCES BETWEEN LAW AND MORALITY
• Laws are obtained from external sources; rules and regulations.
Morality is obtained from internal sources; individual minds, or
even an opinionated perspective of an individual.
• Laws are objective; they treat everyone in the same manner.
Morality is subjective and views from different people change.
• Failure to obey the law has consequences such as jail time or
fines. Doing something that is considered morally wrong does
not necessarily lead to a physical repercussion.
• Laws outline a mandatory behavior for the entire society.
Morality does not force everyone to behave a certain manner,
hence how one should behave is a personal decision.
 Provisions &
THE CONSTITUTION OF KENYA 2010 Implications for
Architects in Kenya
01 SOVEREIGNTY OF THE PEOPLE AND
SUPREMACY OF THE CONSTITUTION
• The people are granted sovereign power to constitute a frame of
government and choose those to run the government.
• To be exercised by the people either directly or through
democratically elected representatives.
• Supremacy of the Constitution reserves ‘a pride of place’ for the
written constitution within our hierarchy of legal norms.
• It is the most important piece of law in the legal system and
ranks over and above all other legislations, customs, conventions,
and principles.
02 THE REPUBLIC
• Declares Kenya a sovereign republic
• Kenya to be a multi-party democratic State founded on
national values and principles of governance
• Establishes counties
• Sets Kiswahili as national language
• Prescribes no state religion
• Outlines National symbols
03 CITIZENSHIP
• Every citizen of Kenya is entitled to having their rights,
privileges and benefits upheld just by virtue of being a
citizen. A Kenyan passport, National ID or any document
of identification should be given out to citizens by the state.
• Citizenship may be acquired either by birth or by
registration.
• Citizenship by birth happens when either parent is Kenyan
regardless of whether they were born in the state. Or when
a child below eight years is found and whose nationality
and parentage is unknown.
03 CITIZENSHIP
• Citizenship by registration happens when a person is married to
a Kenyan at least seven years is eligible to apply, or when a
person has been a lawful citizen for a minimum of seven years
in Kenya may apply. Children who are not citizens and then
adopted by a Kenyan may become citizens upon registration.
• One’s citizenship may be revoked if the person acquired it
illegally or under false pretenses. One may also lose citizenship
after registration if the committed a legal offence within five
years of registration, or if one is convicted of treason or has been
convicted for a period more than seven years.
• A Kenyan citizen also has the provision to be a citizen of another
country through dual citizenship.
04 BILL OF RIGHTS
• Contains extensive catalogue of human rights and
freedoms.
• Elaborates protection of arrested persons, the right to fair
hearing, and the rights of persons detained, held in custody
or imprisoned.
• Specific protection for persons with disabilities, youth,
minorities, marginalized groups, and older members of
society.
05 LAND AND ENVIRONMENT
 Architect and engineers should work to uphold the following specific
land use policies:
 equitable access to land
 sustainable and productive management of land resources
 sound conservation and protection of ecologically sensitive areas
 Land in Kenya is classified as
 public
 community
 private.
05 LAND AND ENVIRONMENT
 Every person including architects and engineers are obligated to co-
operate with the state in conserving the environment, land resources
and ensure ecologically sustainable development. This includes but not
limited to:
 ensure removal of activities that endanger the biodiversity,
 encourage public participation in conservation,
 ensure ecologically sustainable exploitation, management and conservation of
natural resources
 use resources for the good of the people of Kenya
 establish systems of environmental impact assessment.
06 LEADERSHIP AND INTEGRITY
 Elaborates the way the authority assigned to a State officer may be
exercised.
 Lists out the guiding principles of leadership and integrity.
 Requires state officers to subscribe to their oath or affirmation of office
before performing their assigned functions.
 Directs State officers on their conduct, financial probity, activities, and
citizenship.
 Directs Parliament to establish Ethics and Anti-Corruption
Commission (EACC).
07 REPRESENTATION OF THE PEOPLE
 This chapter mainly deals with how the people of the Republic of Kenya go
about electing their electing their representatives at the various levels; this
ranges from the national level to the constituency level.
 It is divided into three parts.
 The first part speaks about the electoral systems and processes, the legislations on
elections, the requirements for the candidates standing to be elected whether
affiliated to a political party or independently, on voting and finally on electoral
disputes.
 The second part gives directives on the Independent Electoral and Boundaries
Commission, its constitution, its responsibilities etc. The delimitation of the electoral
units and allocation of party lists seat
 Lastly, part three deals with political parties; their formulation the principles
governing them and the legislation on the political parties.
08 THE LEGISLATURE
 This chapter deals with the legislative function of the government
which is one of the three arms.
 It entails the establishment of Parliament and outlines its roles.
 The constitution also clearly highlights the roles of the national
assembly and the senate which together constitute the Parliament.
 Part two of the same chapter then speaks on the composition and
membership of the parliament.
 Part three then speaks of the offices of the parliament i.e., the speaker,
the deputy speaker and the party leaders.
08 THE LEGISLATURE
 The final part, part four, then gives directives on the procedures of
enacting legislation.
 Of particular importance to us, as professionals in the construction
industry, is the exercise of legislative powers which eventually yield
Acts of Government that regulates the industry.
 A bill usually goes through various stages i.e., first reading, second
reading, committee stage, third reading, presidential assent and finally
commencement where the Act takes effect.
08 THE LEGISLATURE
Several notable Acts of the Government developed by the
Parliament that govern the construction industry include;
1. Public Health Act (1972)
2. Physical Planning Act (l996)
3. The Building Codes (1968)
4. Local Government Act (1977)
5. Revised Building By-Laws (1955)
08 THE LEGISLATURE
The above mentioned are building standard which must be
adhered to by professionals in the construction whenever
designing or constructing any structure.
In addition to this, there also exist other acts which serve to
regulate the practitioners.
 This is done by the establishment of boards which register
its members after they have attained the required
qualifications and also deregister those who are found guilty
of misconduct by the board.
09 THE EXECUTIVE
 This chapter deals with the executive arm of the government which is
responsible for the enforcement of laws passed by the legislatures.
 It is divided into several parts.
 Part 1 deals within the principles and structure of the national executive.
 The second part deals with the President and the Deputy President; it outlines their
roles, authority, powers etc.
 The third part deals with the cabinet. It states its constitution i.e., the president, the
deputy president the Attorney General and finally the cabinet secretaries.
 The final part deals with the Attorney General, the Director of Public Prosecution
and his removal or resignation from the office.
 Finally, the two ministries directly related to the construction industry are;
 The Ministry of Lands, Housing and Urban Development.
 The Ministry of Roads, Transport and Public Works
 The two are headed by their respective Cabinet Secretaries.
10 THE JUDICIARY
The Judiciary of Kenya is the arm of the government that is
mandated to deliver justice in line with the Constitution and
other laws, and to exercise judicial authority given to it by the
people of Kenya.
This chapter of the constitution is further broken down into
four main articles namely;
10 THE JUDICIARY
The Judiciary of Kenya is the arm of the government that is
mandated to deliver justice in line with the Constitution and
other laws, and to exercise judicial authority given to it by the
people of Kenya.
This chapter of the constitution is further broken down into
four main articles namely;
10 THE JUDICIARY
Part 1- Judicial Authority and Legal System
• In the Judicial Authority and Legal System, Judicial authority
comes from the people and shall be exercised by tribunals or
courts formulated under this constitution. These courts and
tribunals operate under several principles such as justice shall
not be delayed and justice shall be administered to all
irrespective of the status.
• This section also talks about the independence of the judiciary
and that in its exercise of judicial authority, the Judiciary shall
only be subject to this Constitution and the law and not any
other person or authority. It also states the judicial offices and
officers as well as gives us the system of courts.
10 THE JUDICIARY
Part 2- Superior Courts
• This section outlines the superior courts in the judicial
system; Supreme Court, Court of Appeal, High Court
and highlights their functions and the requirements that
each must fulfill in order to pass as an office (court) in
judiciary. It also outlines the requirements needed for
the appointment of Chief Justice, Deputy Chief Justice
and other judges and the conditions that may result in
removal from office of the Judiciary.
10 THE JUDICIARY
Part 3- Subordinate courts
• This section highlights the various subordinate courts
which include the Magistrate courts, the Kadhis’
courts, the Courts Martial and any other court that
may be established by an Act of Parliament, other
than those formulated as required by article 162
(system of courts).
10 THE JUDICIARY
Part 4- Judicial Service Commission
• This part talks about the establishment of the
judicial service commission and the members that it
consists of. It also outlines all the functions of the
Judicial Service Commission and how the judiciary
fund is supposed to be used each financial year.
10 THE JUDICIARY
Implications for engineering professionals
• The judiciary provides a safe space and working
environment for engineering professionals by fostering
social and political stability. It also promotes national
socio-economic developments through its process and
decisions. A place known for its political stability will
encourage more settlement and increase market for
engineering professionals in terms of road construction
and housing developments.
11 DEVOLVED GOVERNMENT
Implications for engineering professionals
• The judiciary provides a safe space and working
environment for engineering professionals by fostering
social and political stability. It also promotes national
socio-economic developments through its process and
decisions. A place known for its political stability will
encourage more settlement and increase market for
engineering professionals in terms of road construction
and housing developments.
11 DEVOLVED GOVERNMENT
• Devolution means transfer of power by a central
government to other local administrators. The constitution of
Kenya creates a decentralized system of government
whereby two of the 3 arms of the government; namely the
Legislature and the Executive are devolved to the 47 political
and administrative counties.
• This chapter is divided into seven articles.
11 DEVOLVED GOVERNMENT
• Part 1- Objectives and principles of Devolved Government
• This part talks about the objectives of devolution and the
principles of the devolved government that any county
government established under this constitution must reflect.
• Part 2- County Governments
• This section talks about the county governments and the
members constituting a county assembly. It also outlines the
conditions necessary for the election of county governor and his
deputy and the circumstances under which they may be
removed from office. The functions of the county executive
committee are also stated here.
11 DEVOLVED GOVERNMENT
• Part 3- Functions and Powers of County Governments
• Here, the respective functions and powers of national and
county governments are given. It also outlines the conditions
under which a function or power of government at one level
may be transferred to a government at another level.
• Part 4- The Boundaries of Counties
• Here, the conditions under which a county’s boundary may
be altered and the reasons behind the alteration are
discussed.
11 DEVOLVED GOVERNMENT
• Part 5- Relationships between governments
• In this part, the cooperation and the relationship between the
national and county governments is outlined. It also entails the
conflict of laws between the two governments. This article
applies to conflicts between national and county legislation in
respect to matters falling within the current jurisdiction of both
levels of government.
• Part 6- Suspension of County Governments
• The conditions necessary for the dissolution of a county
government are outlined in this part.
11 DEVOLVED GOVERNMENT
• Part 7- General
• This part outlines the qualifications for election as a
member of county assembly and instances where vacancy
can be declared in the said office. It also sees into the
County assembly’s power to summon witnesses and its
public participation, privileges and immunities.
11 DEVOLVED GOVERNMENT
• Implications for engineering professionals
• Having a devolved government would make it easier for
construction projects to be managed since each county can focus
on its own developments. Contrary to this, having the central
government manage construction and development projects
would mainly result in unbalanced development as the central
government would mainly focus on the main counties. With
each country having its own projects, the employment
opportunities for engineering professionals’ increases and this
improves the living standards of the population.
12 PUBLIC FINANCE
• Public finance can be defined by the study of the role of the
government in the economy. This chapter is divided into
seven parts;
12 PUBLIC FINANCE
• Part 1- Principles and Framework of Public Finance
• This part discusses the principles of public finance. It also
talks about the equitable sharing of national revenue and
other financial laws. The equalization fund, which should
only be used to provide basic services by the national
government, is also discussed.
12 PUBLIC FINANCE
• Part 2- Other Public Funds
• This section outlines the other public funds namely;
consolidated fund and other public funds, revenue funds for
county governments and contingencies fund.
• Part 3- Revenue-Raising Powers and the Public Debt
• It outlines the national governments power to impose taxes
and charges in the nation. It also cuts into the borrowing by
national government, borrowing by counties, public debt,
and loan guarantees by national government.
12 PUBLIC FINANCE
• Part 4- Revenue Allocation
• This part highlights the commission on revenue allocation and its
respective functions. The annual division and allocation of
revenue bills is also pointed out in this part.
• Part 5-Budgets and Spending
• The form, content and timing of budgets is outlined here. The
budget estimates and annual appropriation bill is also stated and
are usually submitted by the cabinet secretary responsible for
finance to the National Assembly at least two months before the
end of the financial year.
12 PUBLIC FINANCE
• Part 6- Control of Public Money
• This section outlines financial control. The accounts and
audit of public entities and the procurement of public goods
and services are also annotated in this part.
• Part 7- Financial Officers and Institutions
• This section gives the functions of the controller of budget,
Auditor-General, Salaries and Remuneration Commission
and the Central Bank of Kenya.
12 IMPLICATIONS FOR ARCHITECTS
• Public finance manages the income and expenditure by
optimum utilization of the resources. This facilitates growth
and leads to price stability in the economy. Price stability is
essential as it enables the engineer to make more reliable
plans and reduce financial inconveniences. Price stability
also reduces unexpected changes in inflation, which may
also inconvenient the engineer.
13 THE PUBLIC SERVICE
• The Public Service refers to the business of supplying a
commodity (such as electricity or gas) or service (such as
transportation) to any or all members of a community
13 VALUES AND PRINCIPLES OF PUBLIC SERVICE
• These values are applicable to Architects as they can be
public Servants.
1. High standards of professional ethics.
2. Efficient, effective and economic use of resources.
3. Responsive, prompt, effective, impartial and equitable provision of services.
4. Involvement of the people in the process of policy making.
5. Accountability for administrative act.
14 NATIONAL SECURITY
• National security is the protection against internal and
external threats to Kenya’s territorial integrity and
sovereignty, its people, their rights, freedoms, property,
peace, stability and prosperity, and other national interests.
• National Security Organs
 The Kenya Defense Forces;
 The National Intelligence Service; and
 The National Police Service
15 COMMISSIONS AND INDEPENDENT OFFICES
The objectives of the commissions and the independent offices are to;
1. Protect the sovereignty of the people;
2. Secure the observance by all State organs of democratic values and principles; and
3. Promote constitutionalism.
Examples:
1. The Kenya National Human Rights and Equality Commission;
2. The National Land Commission;
3. The Independent Electoral and Boundaries Commission;
4. The Parliamentary Service Commission;
5. The Judicial Service Commission;
6. The Commission on Revenue Allocation;
16 AMENDMENT OF THIS CONSTITUTION
• This chapter focuses on the steps to be followed if an
amendment is to be implemented. A referendum will be
conducted to amend a section of the constitution. This
chapter relates to built construction in that if an amendment
is to be proposed, how will it affect the built environment
and what are the implications of the proposed amendments
to construction and its process.
17 GENERAL PROVISIONS
• Chapter 17 explains the various terms that may arise when
trying to interpret the constitution. The English language
takes precedence in case of a conflict of understanding
between the various versions of the constitution. This
chapter not only clarifies on the situations of interpretation
of the constitution but also provides context when
interpreting the constitution.
• This chapter is very integral to building and construction as
it clarifies any part of the constitution that seems ambiguous
or which are susceptible to various interpretations.
18 TRANSITIONAL AND CONSEQUENTIAL
PROVISIONS
• This chapter consists of 5 articles which are; consequential
legislation, transitional and consequential provisions,
effective date and repeal of previous constitution. The
timelines of forming legislation or the transitioning of
governments doesn’t impact the building and construction
industry.