Introduction to law.

Law.
-It is a body or binding rules or principles recognized and applied by the state in
the administration of justice. It is a body of binding rules of human conduct
prescribed by human beings for the obedience of human beings. It is an aggregate
of rules enforced by court of law at a given time.
Law is a cohesive instrument for regulating social behavior.
Law and molarity.
Molarity is the sense of judgement between right and wrong by reference to certain
standards developed by society over time. It consists of standards of behavior
widely used by society (prescribed by society) and it is bound by the consistence of
the member of that society.
An action which is considered to be immoral will generally be condemned by the
society. However, morality is not enforceable by court of law.
Rules of law are binding, enforceable and have sanctions in all cases
Wrongs in society are contraventions of law or morality. However, the law
incorporates a significant proportion of morality. In such instances where law and
morality overlap, morality is enforced as a rule of law and eventually becomes part
of the law. eg killing, stealing.
Study of law.
The study, knowledge or science of law is called jurisprudence.
Jurisprudence will try to analyze, explain, classify and criticize the entire bodies of
law. it seeks to reveal the history, moral and cultural bases of a particular legal
concept. Jurisprudence is a means of finding the answers to such abstract
questions. Eg how the judges decide cases
Functions/purposes of law.
1. It promotes peaceful co-existence.
2. It is a standard setting and control mechanism – law set standards of
behavior and conducts. Acts as a control mechanism of the same behavior.
3. It protects rights and enforces duties by providing remedies whenever these
rights/ duties are not honored.
 4. It enables persons to make and give choices eg law of contract, marriages,
succession.
5. Since conflicts are inevitable, thew rule of law facilitates their resolutions by
recognizing the conflicts and provide necessary recognizing mechanisms.
6. Rules of law govern various organs of the government and confer upon them
the powers exercisable by them. The law promotes good governance,
accountability and transparency.
7. Law facilitates justice in the society.
Classification of law.
a) Written and unwritten law.
b) National and international law.
c) Public and private law.
d) Substantive and procedural law.
e) Criminal and civil law.

1. Written and unwritten law.

This is coded/codified law.
Written are rules that have been reduced to writing and are contained in a formal
document eg. constitution.
Unwritten rules are rules of law that are not contained in any formal document.
The existence of these laws must be proved.
2.National and international law.
National law refers to rules of law that are applicable within a particular country or
state. They are rules that regulate relation between citizens. This law originates
from parliament, customary and religious practices.
International law is a body of rules that generally regulates the relationship
between countries and other international organs. The law originates from
international conventions, general principles and customary practices of state.
 3. Public and private law.
Public law consists of those fields /branches of law in which the state ha a direct
interest. It is concerned with the constitution and functions of various organs of the
government including the county government and local authorities. Public laws
include criminal law to constitutional and administrative law. Public law asserts
states sovereignty- (authority). It is concerned with the legal relationships between
persons in ordinary transaction. Eg law of contract, law of property, succession,
marriage.
4. Substantive law and procedural law.
It defines the rights and duties of the parties and describes the remedies applicable.
defines the offenses and prescribes the punishment. Eg law of contract, marriage,
succession.
Procedural law- This consists of the steps /guiding principles/ rules of practice to
be complied with in the administration of justice eg the criminal procedure code,
civil procedure code.
5. Criminal and civil law.
Civil law is concerned with the duties and rights of persons. Eg co-operations.
Branches of civil law include:
a) Law of contract.
b) Law of tots.
c) Law of property.
d)Law of marriage.
e) Law of succession.
When a person, civil or private rights are violated, he is said to be a cause of
action. Examples of cause of action: - defamation, breach of contract, assault,
negligence, trespass.
Cause of action is created by parliament through statutes as the common law and
the law of equity. The violation of a person’s civil rights brings about a civil
action. The person whose rights are allegedly violated will be aligned the wrong
doer hence a civil case. It is the duty of the complainant to proof its allegations
against the accused.
The court must be satisfied that it is more probable that the allegations are true. If
the plaintiff proves his allegations by evidence and wins, the case is awarded
judgement which may take any of this form:
Damages- monetary compensation.
Injunction- order by the court stopping continuation of violation.
Specific performance- court instructs specific things to be done by the accused.
Rule of law.
It is described as the due process.
Rule of law comprises of 3 distinct concepts:
a) Absolute supremacy of the regular law. this means that all acts of the state
are governed by law. it means that a person can only be the punished for
disobedience of the law and nothing else.
b) Equity before the law- this means equal subjection of all persons. All classes
of persons are subjected to the same judicial process regardless of their age,
sex, creed etc.
c) The law is a manifestation of the will of the people.

Factors undermining the rule of law.

1. Corruption.
2. Ignorance of the law.
3. Excessive power of the executive.
4. Non-independence of the judiciary.
5. Selective prosecution.
6. Civil unrest (no peace).
 Sources of law.
Sources of law literally means where rules of law are found or gotten from. These
include:
1. constitution.
2. legislation (acts of parliament)
3. delegated legislation.
4. state of general application.
5. common law.
6. law of equity.
7. case law (judge made law).
8.african customary law.
Others are Islamic and Hindu law.
-Written laws include: constitution, legislation (acts of parliament), delegated
legislation, statutes of general application.
-Unwritten laws include: common law, equity, Islamic law, Hindu law, African
customary law.
Principle sources of law- these are sources of law applicable throughout Kenya.
They regulate all perns in the republic.
Subsidiary sources- these are sources of law which regulate certain categories of
people in Kenya in relation to certain matters. Eg Islamic and Hindu law.
Constitution- it is the principle source of all the laws in Kenya. This is the body of
the basic rules and principles by which the society has resolve to govern itself or
regulate its affairs. The constitution may be classified in various ways namely:
a)written and unwritten,
b)republican and parliamentary,
c) presidential and parliamentary,
d)rigid and flexible.

The supremacy of the constitution is manifested in various ways:

 1. all other laws derive their validity from the constitution.
2. It proclaims itself as supreme law under section 3 in the constitution of
Kenya (The constitution of Kenya shall take the force of law throughout
Kenya. Incase of inconsistence with the constitution, this constitution will
prevail and the law shall to the extend of its inconsistency be void).
3. The constitution creates organs of government and in particular the principle
organs? Arms of the government i.e judiciary, executive, legislature.
4. The constitution has a special amendment procedure.
5. The constitution provides rights and freedoms. There is right to life, right to
personal liberty, right to own property, right to protection of law, right to
basic education. Freedoms guaranteed by the constitution include: freedom
to worship, freedom of movement, freedom of thought, freedom of
expression, freedom from torture, freedom from discrimination.

Legislation (Acts of Parliament).

It is law made by parliament directly in exercise of legislative power confirmed
upon its direct by the constitution. The final product of parliament legislative
process is the act of parliament. The national assembly consists of: nominated
members, ex-official eg attorney general and the speaker, elected members of
parliament.

Process of legislation.
Bills- it is a draft law. bills may be classified as:
1). government bills- bills mooted by the government.
2). private members bills- this is mooted by members of parliament in his capacity
as member of parliament.
3). public bills- this is a bill that seeks to introduce or amend law applicable
throughout Kenya. This bill can come from the government through attorney
general.
4). private bills- it is a bill that seeks to introduce/amend a law applicable in some
parts of Kenya or a specific group of persons.
 Law making procedure.
1. Publication of the bill through Kenya gazette (14 days before introduction to
parliament).
2. Readings in parliament.
3. President’s assent- the president may reject or accept the recommendation.
When the bill is taken back to parliament which may approve the
recommendation then re-submit the bill back to the president or ignore the
president’s recommendations. If it is supported by 65%, the bill is sent back
to the president who must sign within 14 days.
4. Publication of the law in the Kenyan gazette- after a law is passed by the
national assembly and assented by the president it must be published in the
Kenyan gazette before coming into operation. Statutes/ an act of parliament
comes into operation on the date of publication of the Kenyan gazette.
Advantages of statute law/law made in parliament.
1. Democratic- it is the most democratic legislative process because parliament
consists of representatives of people they consult regularly. Statute law is
therefore a manifestation of the will of the people.
2. Resolutions of legal problems – it enables society to resolve legal problems
by enhancing new statutes/ effecting amendments to existing laws.
3. It is the most dynamic. It enables society to keep pace with changes in the
fields. Eg political, social, economic, technological.
4. Durability- law consists of general principles applicable at different times in
different circumstances.
5. Consistency uniformity- It regulates conduct of all in the same manner and
any exception will affect all.
6. Adequate publication compared to other sources of law. it’s the most
published. It also attracts media attention (published in the gazette).
7. Superior source of law in that only the constitution prevails over.
Disadvantages of statute law.
1. Imposition of the law. law may be imposed on the people by the dorminant
classes in the society. In such a case the law does not cater for their interest.
2. Statute law may at times manifest the wishes and aspirations of MPs as
opposed to those of citizens.
3. Law making process is long and therefore unresponsive to urgent needs.
 4. Rules and technical bills- since parliament is not made up of experts all
fields, bulks and technical bills barely receive sufficient treatment in the
national assembly.
Functions of parliament.
a) Control government spending- through budget.
b) Critical function of addressing critical issues in the country.
c) Legislative function.

Delegated legislation.
It is also referred to as subsidiary / subordinate legislation.
-It is law made by parliament indirectly where it is already in power and delegated
to other bodies. It consists of rules, orders, regulations, notices made by
subordinate but competent bodies. Eg local authority, professional bodies example
law society of Kenya.
-these bodies make the laws as they exercise delegated legislation power conferred
upon them by parliament through enable act.

characteristics OF DELEGATED LEGISLATION.

- made under express authority of an act of parliament.
- published in the Kenyan gazette before coming into force.
- must GET THE APPROVAL OF PARLIAMENT.

purposes of delegated legislation.

1. Parliament may not have capacity in terms of skills and professionalism
enact some bills.
2. Parliament is not always in session.
3. Inadequate parliament time.
4. Parliamentary law making process in slow and unresponsive to urgent
needs.
5. There is an increase in social legislation.

Disadvantages of delegated legislation.

1) Less democratic.
2) Less published /inadequate publicity.
3) Difficult to control.
 4) Abuse of power.

Control of delegated legislation.

Both parliament and court of law have attempted to control legislation. However,
neither of them can effectively do so.
Judicial control of delegated legislation.
There are 2 aspects that delegated legislation could be ultra vires. i.e
1. Substansive ultra vires
2. Procedurally ultra vires.

a. Substance ultra vires.

This will happen when the delegated exceed the power prescribed by the enabling
act of parliament. The delegate exercise his power for a purpose other than that
which is given (abuse of power).

b. Procedural ultra vires.

A court of law may declare delegated legislation procedural ultra if satisfied that
the law making procedure prescribed in the act was not complied with in the law
making process.

SUBSIDIARY SOURCES OF LAW.

these sources include: common law, the law of equity, case law (law made by
judge), islamic law, hindu law, african customary law.

1. COMMON LAW.
This is the law of England which was developed by the ancient common law courts
involving common customs and ways of life of the English people. This courts
relied on customs to decide cases before giving them as force of law. These courts
include court of the king’s bench, court of the exchequer, court of common which
was credited for having dead locked the common law.
The romans are accredited for having a foundation for the development of the
common law.
Characteristics of common law.
a). Used a writ system.
b). Used a doctrine of ‘stare decisis.
A). Writ system.
A writ system is a statement of the nature of the complaint made by the
complainant and defendant instructed to ensure that he appeared before the court
on the mentioned date. Writs were obtained at the loyal offices. Different writs
were used for different complaints. The writ system does not recognize all
possible complaints and therefore many would be complainants in order to access
the court.
B). Doctrine of ‘stare decisis’.
Stare decisis literally means decision standards. It is a system of administration of
justice whereby previous decisions is applied in subsequent similar cases. In
common law, a judge having once decided a case in a particular manner finds it
hard to decide all subsequent similar cases similarly.

Law of equity.
This is described as the law of England developed by the chancery court to
supplement the common laws. It was developed to mitigate the common law
which was seen to be a bit harsh. The law of equity was stressed to early petitions
through the king by persons dissatisfied by the common law. to enhance
consistency in decision making, the lord chancellors court had to:
a). Develop a set of guiding principles called the maxims of equity.
b). Adopt the doctrine of stare decisis.

Judge made law/ case law.

This is law made by judges. Judges make law when they find principles/
propositions where none existed or are in doubtful situations. These laws are
consequently lied upon as laws in subsequent similar cases. Case laws therefore
consists of principle or propositions of law formulated by judges when deciding
cases before them. The principle/ proposition formulated by the judge is referred
to as ‘ratio decidendi’ which means reason for decision.
Case law is the only source of law where cases have similar legal points.

Islamic law.
It is based on the Muslim holy book, the Koran and the teaching of prophet
Mohammed in his sayings known as ‘Hadhit’. It is a subsidiary source of law in
Kenya. It only applies in the determination of civil cases relating to marriage,
divorce, succession or personal status in cases which all parties are of the Muslim
faith.
 Hindu law.
It is based on the Hindu faith and philosophy. It is recognized source of law by the
Hindu marriage and divorce act / Hindu succession act. It only applies in
determination of civil cases relating to marriage, divorce, succession or personal
status in proceedings in which all parties are of the Hindu faith.

African customary law.

It as based on the custom usages and practices of the various element groups in
Kenya. Customs are local by nature. Not every rule of local customs is relied upon
by the court of law for the settlement of dispute. For a custom to be relied upon as
a law, it must have certain characteristics e.g.
 Must be reasonable
 Must be consistent with the principle of justice.
 Must conform with the statute of law, meaning a local custom must be
consistent with parliament made law because parliament is the principal
lawmaking body which has constitutional power to disqualify the
application of any custom rule.
 Observation as of right – a good local custom is that which the society has
observed opening not by force but at will.
 Immemorial antiquity- a custom must be observed since time in memorial,
meaning no person can attest.
Kenyan law will recognize and apply the African customary law as a source to do
the following:
I. To guide- African customary law can only be retied as a guide. It is the duty
of a court to decide whether to rely on it or not.
II. Applicable only in civil cases- African customary law can only be relied by
court of law in determination of civil cases e.g.
 Land held under customary tenure.
 Marriage, divorce, maintenance or dowry.
 Seduction, pregnancy of unmarried women.
 Enticement with adultery married women.
 Matters affecting personal status. Status of women, widows,
children including adoption and custody.
III. Parties involved- this can only be relied upon if the party proceedings are
bound or affected by the law.
IV. Law repulse to justice and morality- African customary law can only be
relied upon if it is not repulsive to justice and molarity. The custom
question must be judged and must not promote morality in the society.
V. Consistency with written law- for a rule/ law of custom to be relied upon in
the settlement of civil disputes it must be consistent with written law.
VI. Proof the party relying on a particular rule of custom must proof court by
evidence of the application of that law. The scoop of application of African
customary law as a source of law diminishes as the legal system develops.

COURT STRUCTURE OF KENYA.

The court of Kenya operates in two levels. namely: superior court and
sub-ordinate court.
Terms used in the court structure of Kenya include:
 The structure- means hierarchy or level of courts.
 Establishment- the composition or who presides over in court.
 Jurisdiction- this are the powers of different courts to have and determine
disputes. Jurisdiction can either be geographical or territorial. It could also
be functional, meaning the hearing of original matters/cases, appellate cases
or both.
Superior court.
It comprises of:
 Supreme court.
 Court of appeal
 The high court.

1. Supreme court.
It is served by 7 judges with the chief justice as the president of the court. The
deputy chief justice is the vice president of the court. The court is chaired by
minimum of 5 judges. It has exclusive original jurisdiction to hear and determine
disputes relating to the election of the office of the president.

2. Court of appeal.
It consists of a number of judges are chosen by an act of parliament. It
should not have fewer than 12 judges. The court comprises of president of
 the court of appeal who is elected by the judges from court of appeal among
themselves. The court of appeal is a superior court which was created to
hear appeals from the high court.
The only moment the court of appeal can have original jurisdiction is when
in punishment for in contempt of court. The act of parliament provides
jurisdiction provided that at least 3 judges shall seat for the determination of
any matter by the court.
The court of appeal has powers to
i. determine a case.
ii. order for a trial.
iii. order for a retrial.
iv. frame issues for determination of high court.
v. to receive additional evidence.

3. High court.
The court consists of a number of judges prescribed by an act of parliament. The
court is headed by a principal judge who is elected by the judges of the high court
among themselves. Two or more judges are required to determine cases in the
high court.
 A high court judge has unlimited jurisdiction to civil and criminal cases.
 A high court has jurisdiction to determine matters on freedom in the bill of
rights.
 High court has jurisdiction to hear a bill from tribunals.
 High court has the jurisdiction to hear matters on interpretation of
institution.
 High court has supervisory jurisdiction of subordinate courts.
 High court has jurisdiction in disputes exceeding 500,000 which is the
maximum subordinate court award.
Terms used in supervisory jurisdiction of high court.
1. Mandamus- we command.
This Is an order used by the high court to any person commanding them to
perform public duty imposed by law of state.
2. Certiorari- be informed.
This is an order by high court directed to inferior court or a body of inferior
court to have the records of proceedings presented to the high court for
purposes or retrial, review on the excess of jurisdiction.
 3. Writ of harbeas corpus - produce the body dead or alive.
This is an order issued where the personal liberty of a person is catiled by
arrest of confinement without legal justification.
The high court calls upon the person holding the body to answer by what
authority by continuing to the body without legal authority.

Law of torts.
This is an act which causes harm to a definite person. A tort is a wrong committed
against an individual person for breach of a fixed law by the state.

Tortious liability.
A tortious liability a rise from the breach of a duty primarily fixed by law. this
duty is towards persons generally and its breach is redressable by an action for
unliquidated damages.
Liquidated damages are fines or penalties against the person who has committed
the tort. A person who commits a tort is known as a tortfeasor. When more than
one person commits a tort they are referred to a join tortfeasor.

Differences between tort and crime.

I. A tort duty is fixed by law while a crime duty is fixed by parties.
II. A tort duty is owed to persons generally while a crime duty is owed to the
persons in the contract.
III. A tort remedy/ awards are few and restricted while crime remedies are far
much more.
IV. A tort is a wrong redressable by an action for unliquidated which a crime is
a wrong whose action involve punishment.
V. In a tort, the party suing is an individual or a private person while in a crime
almost always the party suing is the state.
Example. A tort is framed as Kamau vs Onyango while a crime is framed
as state vs Wafula.

Functions of law of tort.

1. Primary function of the law of tort is to compensate persons injured by the
civil wrongs of others by comparing the tortfeasors to pay for the damages
occasioned by his tort.
 2. To determine rights between parties to a dispute.
3. To prevent continuous or repetition of harm.
4. To protect certain rights recognized by law.
5. To restore property to its rightful owner where property is wrongly taken
away from its rightful owner.
Every person is under a duty to compensate for his wrongful acts which resulted in
the injury to another person. However, the plaintiff proof that he has suffered harm
and that there has been consequences being a violation of his legal rights.