Legal Systems & Methods Revision Notes

Definition & Functions of Law

Approaches to the Definition of Law: [p220 of text book] There is no universally applied definition of law. Some definitions of law
include: “set of rules made by the people in authority to be followed by the subjects of a given jurisdiction or state. The law is a
set/body of rules that govern human conduct.” Another definition is that law is “an aggregate set of rules made by the authority, to
be followed by its subjects and enforced by the courts of law at a given time”.
Functions of Law in Society: To facilitate administration of justice, in order to promote cohesion in society; (ii) Maintenance of
peace and order to prevent anarchy, by way of punishing offenders and providing aggrieved parties with appropriate remedies; (iii)
To promote good governance because a society that follows organized rules, is governed well.
Schools of Thought in Legal Philosophy
i) Natural Law Theory- natural law is that which is not made by man. Omony states that natural law is right reason in agreement
with nature. Naturalists believe Law is universal, eternal and unchanging. Natural law theorists believe: the validity of any law
should be tested by reference to ‘absolute value’, which are deducted by reason from observing and understanding nature correctly.
These absolute values are universal and eternal and ‘good’ not evil. Thus, any laws lacking moral validity are wrong and unjust.
Where a law is moral and asserts the common good, it is just, but if it is contrary to human good it cannot bind and must be
disregarded. That, that which is good is in accordance with nature and that which is evil contrary to nature.
Cicero- laid the foundation for natural law. He opined, law represents the mind of the state, law is the standard which measures
justice and injustice. Thus, true law should be universal and should reflect eternal law (reason in agreement with nature) His theory
included social contract theory, that man has an instinct to associate with others. Aquinas interpreted law as an aspect of God’s plan
for man kind. He thus categorised law into 4: (a) Lex aeterna. God’s rational direction of all created things. (b) Lex divina. God’s
law as revealed in the Scriptures. (c ) Lex humana. Human law must conform to reason and the law of God. (d) Lex naturalis. This
should emerge from man’s exercise of his reason in the light of God’s word. Aquinas believed that positive law is derived from
natural law and that if it violates natural law it is not true law. Stoicism- They argued that the universe is governed by reason, or
rational principles. They further argued that all humans have reason within them and can therefore know and obey its law. Modern
Natural jurists move away from theological doctrine towards reason, however still believe law can be understood/discovered from
nature as opposed to created. The secular views are prominent in the modern theories. Bringing in morality and autonomy as
opposed to the divinity seen in the classical augments. Some natural jurists such as stammler think that each era should have its
own ‘right law’ based on justice.
Criticism: natural law is unrealistic and argued to lack an adequate basis, some argue that it is incapable of verification so its
worthless (Carnap). Others argue that it has been used to encapsulate alot of different doctrines so its hard to attach meaning to what
naturally is. Also, since the law is based heavily on morality, it is futile to think that it should have universal application since
‘morality’ differs from place to place and time to time. If law is right only if its in agreement with nature, it means laws such as
those that allow birth control would be illegal, because child birth is a natural consequence of sexual relations and is what is
observed in nature. Arguably complete naturalism is detrimental, but it is relevant today because it has given rise to the idea of
natural inherent rights (e.g. human rights).
Social Contract Theory: This is an aspect of Natural law and the idea that man does best when he lives in community, as opposed to
solitude. social contract theory is not a fact/event that happened in history, but more so an explanation of what happened given by
many jurists. Thus, each jurist had different thoughts as to what happened. In the state of nature category, the three theorists present
their views on a continuum starting with a pessimistic/absolutists view (Hobbes) of what human nature was like moving all the way
to very positive (Rousseau). As a natural theorist, Ciceros work brings out the social contract theory that man is not just a social
animal but a political animal who needs to be in society (relationship). Hobbes believes man is born into a state of Anarchy, every
man has the same desires and so needs resources, which are scarce. As a result, society is in anarchy bc every man is self serving.
Therefore, it is survival of the fittest- every man/woman for themselves- is the aw that exists. He holds a pessimistic view of the
human condition (humans are predominantly evil and learn how to do good using law) Hobbes thought the reason for entering into
civil society is survival (Self-preservations). Survival is better in peaceful conditions. Thus, individuals enter into society to create
order. Once this happens, society enters into a contract horizontally amongst each other. Hobbes saw one social contract. Each
member gives up a right that is bequeathed to the sovereign in the expectation that he would safeguard individuals and protect them
against oppression. Locke believed man is born into a state of perfect freedom, which degenerated when dangers threatened
individual existence. He believes human beings are predominantly good and only result to evil when pushed. The law that exists is
natural law, which gives rise to certain types of rights, such as freedom, equality etc. (natural/inherent rights). For locke, the reason
for entering into society is to protect the individual. Enter into two contracts- a vertical contract and a horizontal contract. The
vertical contract, in which the subjects cede certain rights that help the sovereign do their job (but do not cede natural rights). Then
the horizontal contract is similar to the one in Hobbes. Rousseau believed that man is born innocent, good, free and equal but the
corrupting powers of civilization are responsible for the evil situation man is in. He also believed humans are predominantly good.
.He believed society has entered into two contracts- a vertical contract and a horizontal contract. The vertical contract, in which the
subject cede certain rights that help the sovereign do their job (but do not cede natural rights). Then the horizontal contract is similar
to the one in Hobbes.
ii) Legal Positivism- Positivism: The idea that law is created (Deposited) into a legal system. That which is manmade, formally laid
down. 3 claims of positivist: 1) law and morals are distinct: Whether some rule is a legal rule or not depends upon whether it has
been laid down in some source of law, the rule is a valid legal rule whether it is good or bad, just or unjust. Similarly, a just and
reasonable rule does not become a legal rule if not found in any recognized source of law. 2)‘What is law’ must be kept seperate
from ‘what law ought to be’- they don’t want to know what it ought to be because these deals with morality. 3) Law is the creation
of man and is part of government’s instrument to achieve rational, coherent and defendable rule. Their approach therefore does not
consider value judgments and moral considerations.
Classic positivism (Hobbes)- law are the rules which the sovereign leader has commanded to enable citizens to distinguish right
from wrong. It is made by man not by a divine being.
Imperative positivism- Austin opines law is the command of a sovereign, a sovereign being any determinate person of group who is
rendered habitual obedience by most of the population but who does not render obedience to anyone.
Normative positivism- Hart & Kelsen. their aim was to develop a legal theory that is positivist but flexible to take into account the
norms of the law.
Criticisms of positivism: sanctions injustice- because it sees law as law, any law so long as it is duly and legally enacted is good
law, whether moral or not- there is therefore a great possibility for injustice. E.g jurist Radbruch in Nazi Germany, he had no option
but to be positivists in nazi Germany regime, it is said that the nazi regime did not do anything illegal, because everything they did
was sanctioned by law. But this regime sanctioned killing and torturing etc. Can see Hart recognized this and changed his position.
E.g of the negative implications of Positivism- seen in the grudge case, where husband was sentenced to death based on positivist
theory. But we see an attempt to clean up the mess, with a later trial to hold the wife accountable post-nazi regime.
iii) Historical School- Historians want us to dig into history, unearth that which was good and incorporate it into law. Historians
are not happy with the notion of codification, because once its codified, it is cast into stone yet culture is supposed to be loose,
interpretive etc. According to the historical and anthropological school, law is the product of historical processes and for this reason
it can only be understood in light of these processes. Historical jurisprudence theorists argued that communities go through
predictable stages, and that the community’s law do, or should reflect the community’s stage development. Savigny- an
understanding of the lesson of history was key and an analysis of its development. Law is first developed by custom and popular
faith, next by judicial decisions- everywhere, therefore, by internally operating powers, not by the arbitrary powers of the law giver”
In State v. Makwanyane- the court considered the customs od Bantu speaking people of South Africa as well as the history of
South Africa with regard to murder. The court concluded that the law must reflect the concept of reconciliation as well as humanity
and dignity and hence the death penalty was considered unconstitutional.
Criticism: whose history are we looking at? There is a lot of transplantation both by choice and by force, so do we look at the
history of the colonizers or our history before they came? And if we look at the latter, how can we reconcile it with our laws today
which are rooted in the former? Law has come about from the imposition of the ruler rather than the workings of the people. (e.g.
Kenyan family law in relation to marriage & succession) misinterprets the importance of legislation and that legislation is often a
result of deliberate social engineering- i.e. legislation is geared to lead the society in a particular direction, possibly away from
history, no matter how good. Old customs and traditions that might not be matched with modern standards e.g. in Gakwavu v
Mariana Gasengayire, Court held that under s.22 of the Divorce Act that a husband can recover damages from any person who
commits adultery with his wife, but the reverse is not true. Savigny’s point that only ‘good history’ should be looked at, begs the q
what constitutes ‘good history’ because that may be subjective- good for who? Also, not all history is moral e.g. slavery in the US,
although some may argue it was ‘good’ for the slave masters and for the economy.
iv) Sociological School- emphasizes the study of law in its socio-historic context. It is concerned with the actual sources, effects
and functions of law upon attitudes, behaviors, organizations and powers involved in the maintenance of a particular society. The
argument of sociological jurisprudence is that law is validated by social criterion. That the law arises because individuals live
together and that it therefore exists in order to encourage conduct, which furthers social solidarity and prevents conduct, which
hinders it. Law is an instrument of social control, backed by the authority of the state, the sociological jurist has no preference for
any particular type of precept but only for that which will do the most effective job. In philosophy he is generally a pragmatist. He is
interested in the nature of law but only with reference to its use. as a tool to serve society, and his examination into the law is always
in connection with some specific problem of the everyday work of the legal order. 3 Aspects:
 study of law must examine social origins of the law and legal institutions (Jhering). Basically, the law has a social
background and each society must find a law that best suits it purposes and aims. Duty of society to change the laws from
time to time to confirm with new conditions.
  law must be seen as a social phenomenon, it does not have its source in legislation or in decided cases (Rejecting
positivism) but rather in the common experience of the community. Therefore, its necessary to study factual situations and
institutions to find the law (element of realism).
 Law is based on what society needs and desires rather than transcendent ideals (thus arguably rejects naturalism).
Pound: propounded the view that law must serve a particular function in society and the ultimate purpose of the law is social
control. According to him law is not merely a set of law or legal order, but it is the process of balancing conflicting social interests.
Dynamism of law- what may be suitable at one time may not be appropriate at another time- law reform (Law must adapt itself to
the changing conditions). Duty of society from time to time to shape the law in conformity to the new conditions.
v) Legal Realism- Realist jurists are focusing on the law as it is in reality. They believe that any assertions that are incapable of
proof are nonsense. Law is as law does, these jurists are building a science of law based on law in action. Realism is based on
judicial decisions, it looks at what judges decide as being the true source of law. Reject notions such as ‘rights’ or ‘justice’ because
they argue those are not real things that exist in reality. That they are just fictions of our mind, which we employ only when we need
to. Hence, there is no such thing as legal rights or duties because it only becomes your right once the court decides it is. Can be
divided into two: american and scandinavian.
Scandanavian- main focus is to explain the law as it is by concentrating on psychology. Opine that law should be understood as a
psychological phenomena. i.e. the sensations produced in people’s minds as the result of legal words. For e.g. declaring certain
words or going through certain processes in making a bill has played on our psychology to the extent that whenever a bill goes
through the stipulated process and says “it is hereby assented”, our psychology tells us that we are now bound by it, whereas
without that process or statement, we would not act or believe we are bound. Hagerstrom believes the idea of law is abstract until a
judge decides on that subject matter in a case. Even the rights the litigant is claiming in that case are unreal and only speculative
until the judge proves that he has title/those rights. Main elements of Scandanavian Realism-
 Metaphysical speculation is a sham (natural law is an unacceptable illusion)
 law doesn’t come from morality, morality comes from law.
 goodness and other such values are no more than our reaction (approval or disapproval) to stimulus
 law is simply a set of your brains response to groups of stimuli
 legal ideas are rationalizations of social facts
 commands are illusions that ensure obedience in their mandatory forms
Scandinavian realism criticism- the idea that law is all in our psychology is not true, there is a use for ‘justice’ and ‘rights’ and it is
possible for things to exist even when we do not see them/ need them. Indeed how can it be that your right only becomes a right
once the judge decides it, on what basis would a litigant then go to court in the 1st place without a right to rely on.
American Realism- focus on judicial decisions as the true source of law. Law is simply a set of consequences emerging from
judicial decisions. Holmes believes the idea that law should always be seen from the position of the bad man. Bad man is defined as
any person contemplating legal proceedings. The bad man always wants to know the predicted outcome of the case, and the
outcome is the law. For the bad man the law is a prophesy of what the courts will do in fact and nothing more. Criticisms of
Holmes- not all law requires or attracts litigation. Frank- argued that legal rules aren’t the basis of a judges decision, but that the
judge has discretion to apply the legal rules, bc of the judges bias, or the crookedness or stupidity of lawyer and judges. Mtilila v
AG (1991) - Mtilika had several cases before a particular judge, who then was transferred to another place. The judge usually gave
judgment in his favor. When he was transferred, Mtilila, filed a petition in the place where the judge had been transferred, and he
was able to get judgment in his favor. Llewellyn- believes the law is the doing of something about disputes, by reasoning done by
officials. He opined legal rules are of limited value, it is only their operational significance that’s is considered.
American realism criticisms- If as Llewellyn states that law is the doing of something about disputes by officials, then what happens
when these officials act illegally? Are we just to accept this in light of legally written down laws which show this is illegal, how
does this approach reconcile with judicial review? General criticism of realism- unpredictable and uncertain, for e.g. in kenya, lots
of courts at different levels, so which judge are we to take as being the law setter. If it rejects any speculation, what about legal
fiction processes e.g. the reasonable man that judges use in creating laws.
vi) Marxist Theory of Law & State- For Marx an understanding of the origins and nature of law and its objectives within society
went hand in hand with a determination to change that society. For him, the point in understanding the world was to change it, not
to merely understand the world. 3 separate but connected strands of thought within Marx’s philosophy: Dialectical materialism,
Laws of Economic production, historical materialism. Laws of Economic Production: This is the idea that capitalism is based on
exploitation of the proletariat class (workers) by the upper class. This is because workers only have their power to sell, which is
exploited by the capitalists (upper class) who own the instruments of production. Crises are endemic and result in the workers
intensifying their organisation so that, eventually, their very experiences in the productive apparatus teach them how to overthrow
their exploiters. Base & Super Structure- The basis of society is its economic foundation. Upon this base, society erects a political
and legal superstructure. Ideas, theories, ideologies reflect economic activity. Jurisprudence is no exception to this rule. Legal
institutions, rules, procedures, theories, arise in response to the needs perceived by the ruling class. Under capitalism, jurisprudence
guards and advances the interests of the bourgeoisie. Class instrumentalism- Because law is an instrument—a ‘tool’—of the
dominant class, it is neither neutral nor standing above the class struggle. It is a part of it. State and law- The State came into
existence, according to Marx, only when classes appeared within society. In capitalist society, the State is effectively, the executive
committee of the ruling class. Jurisprudence assists the State by providing theories concerning the ‘neutrality’ of government and
the law. After the socialist revolution, classes will disappear and, therefore, the need for a State and its legal apparatus of repression
will also disappear. The government of persons will give way to the administration of things. Bourgeois law will be rendered
obsolete. The State will have withered away.
Criticisms of Marx- The philosophical basis of Marxist jurisprudence has been criticised continuously by those who argue that
dialectical materialism is flawed, that there is no proof of the validity of Marx’s interpretation of history, and that the ‘class-struggle
concept’ of social development is a simplistic view of a very complex phenomenon. Attention has been drawn, in recent years, to
the quality of the legal systems erected in Marxist States on the basis of Marxist jurisprudence. Common to those States has been a
rejection of the rule of law and a continuous abuse of human rights. Critics suggest that this is not accidental; Marxist jurisprudence,
it is argued, contains within its tenets the seeds of an intolerance from which totalitarianism will inevitably burgeon.
Development of the Kenyan Legal System
The Kenyan legal system is similar to other commonwealth countries, and has been influenced by a number of legal systems: (i)
English law- by virtue of colonization, this was the first source of formal law in Kenya; (ii) American Constitution- Since Kenya
adopted a formal written Constitution like the USA, Kenya has drawn from the American Constitutional experience; (iii) Indian
legal system- India is similar to Kenya because it is an ex-British colony and it codified numerous aspects of English common law
for the first time. Hence, Indian codified law became a model along which similar colonial laws were codified in Kenya; (iv) East
African Community laws- Once the East African community was set up, the three countries shared several common services and
industries which they ran jointly. This in turn gave rise to community law, which has been an important contributor to the
development of Kenyan law; (v) South African post-Apartheid Constitution- this was a model for Kenyan Constitutional drafters, in
particular the Bill of Rights chapter.
Historical Development: Can be divided into three: (i) Pre- colonial: Kenya did not have a unified body of laws at this point, instead
each community had its own set of governing laws. The laws were diverse and reflected the different cultures; (ii) Colonial: This era
brought the developed British laws into Kenya, which had the effect of gradually replacing ACL and Islamic law. Colonialism
caused the increase of the Asian and British population, which in turn caused the introduction of Hindu Religious law and Canon
law. There were therefore 3 sets of laws running, but as time went on, the British Canon law increasingly included the Asians and
then the Africans; (iii) Post- Colonial: From 1963, Kenya’s legal system was fully in the hands of the African majority under one
person. Parliament now held law making power and the bicameral legislature was changed to a unicameral one, and all regional
governments were scrapped and power put in the hands of one leader under a unitary state. Parl had law making capacity, but
President had veto power of Bills. This continued till 2010 Constit., which has now changed this system by transferring governance
power to ‘the people of Kenya’ by way of devolution.
Classification of Law and Legal Systems
i) Public Law & Private Law- Public law is concerned with structure of government, duties, powers of officials, relationship
between individual and state. Public law includes Constitutional law, Administrative law, Criminal law. Private law on the other
hand regulates the relationship amongst non-political units, the relationship between individuals w/out the state. It is a set of law in
which the state has no direct interest in. Private law governs private relations between individuals and Companies.* Private law
includes Contract law, Tort law, Property law, Family and Succession etc..
ii) Criminal Law and Civil Law- Criminal law governs wrongs which parliament has included in legislation as being wrongs against
society/community/the public. Civil law on the other governs wrongs which are considered to be wrongs against an individual. Civil
law is concerned with private relationships between members of society, whilst criminal law is concerned with a relationship
between an individual and society/the state/the community.
iii) Procedural Law & Substantive Law- Substantive law is the set of laws that governs how members of a society are to behave. It
is contrasted with procedural law, which is the set of procedures for making, administering, and enforcing substantive law.
Substantive law is basically the rights, duties and prohibitions that the law sets out, whilst procedural laws are those such as
evidence law which explain how the substantive law is to be enforced or administered. For e.g. if the Criminal law is substantive,
then the rules of evidence relating to that specific criminal offence (e.g. what needs to be proven in order for a charge to be made) is
the procedural law.
iv) Municipal Law & Int. Law- Municipal law is otherwise called domestic, national or internal law of a sovereign state. This
includes regional, provincial and territorial laws. International law on the other hand is the set of rules generally regarded and
accepted as being binding between states and international bodies such as the UN. They are those that bypass national boundaries.
Major Legal System/ Families of Law
i) Roman System (Romano-Germanic/Civil Law)- Code is a body of laws enacted by parl. And systemized entire fields of law in an
ordinary comprehensible way. Not a big emphasis on precedent, the role of the judge is to apply code and not make the law (in
contrast to CL system), the judges are to play part in the process and inquire and investigate the case. The civil law system is the
most widespread legal system in the world. The distinguishing feature of the civil law system is that its legal authority is organized
into written codes. The civil law system is derived from Roman law and is found in much of continental Europe, Central America,
South America, and several other regions
ii) CL System- This system was developed after the Norman Conquest of 1066. Under the CL system, while they often have
statutes, the law is not based on statutes, and there is a greater reliance on precedent. Thus, a judge’s role is vital to law making.
iii) Socialist System- This system is based on civil law and Marxist/Lenist ideology.
iv) Religious System- These are systems where the law emanates from texts or traditions within a given religious tradition. Many
Islamic nations have legal systems based in whole or in part on the Quran.
Sources of Law
Meaning of Sources of Law: The origin from which rules of human conduct come into existence and derive legal force. Refers to
the sovereign or the state from which the law derives its force or validity. This basically answers the question: ‘Where do we get our
law from?’ However, sources of law could mean: (i) Literal sources- where the law is physically located, e.g. law reports or
Statutes; (ii) Formal sources- i.e. which body is responsible for enforcing the law, e.g. the state; (iii) Historical sources- i.e. factors
that led to the development of various legal rules.
Sources of Law include (in hierarchical order): (i) The Constitution [A2(4) states this is ‘supreme law’]; (ii) Legislation (both
national + county) [A94(1), A94(5), A185(1)] (iii) Delegated/Subsidiary Legislation [A94(5)-(6)] (iv) ACL, Religious Law,
Common Law/ Equity- [A145(4), A159(1c), A159(3), A170(5)] (These 3 sources are commonly considered unwritten sources of
law). There are other sources of law, however it is not expressly clear where these additional sources fit into the above hierarchy.
These include: (v) Case Law- This may also be considered to be common law, however, it is slightly different because... There are
differing opinions as to whether case law should be considered a source of law. Purists believe that it is NOT a source of law, but
merely an interpretation and system of applying the above sources of law. However, this opinion is arguably disqualified by the
fact that judicial precedent has legal authority in the CL system & A20(3)-(4) + A259(1) of the constitution imply some tolerance
for judicial development of law. Thus, it is clear that in practice, Case law is indeed a source of Kenyan law. Nonetheless, it doesn’t
neatly fit into the hierarchy because in order for it to be a source, judges have to interpret the other sources in the above hierarchy.
There are therefore 4 possible approaches in placing case law into the hierarchy.
1) Case law is a component of all other sources of law, to the extent that judges interpret and apply each source of law; or
2) Case law is superior to all other sources of law, including the constitution, to the extent that judges can read new interpretations
into the constitution that may have little grounding in the literal reading of the text, which then supersede the literal wording. (This
promotes judicial activism); or
3) Case law is inferior to all other sources, including unwritten sources, because the judicial function is different from the legislative
function, and judges are technically only required to interpret/apply the law and read into it only when those sources themselves are
silent on a particular issue. In this case, case law is almost a ‘back up’; or
4) Case law is part of the 3rd level of hierarchy (after legislation and before delegated legislation), since judges are involved in
judicial control of delegated legislation (they can judicial review it) and of unwritten law sources (they can analyze its validity), but
are not meant to control legislation and the constitution, only to interpret it.
(vi) International Law- A2(5) of the Constitution states that Int. Law applies directly to Kenyan law, and A2(6) states that so do
treaties and conventions that have been ratified by Kenya. Thus, it is evident that International law is a source of law, however, it is
not clear where it fits into the hierarchy. This is because prior to the 2010 constitution, Kenya adopted a Dualist stance to
international law, requiring all Int. Law to be ratified by a domestic law in order for it to be applicable in Kenya. This approach
favoured the supremacy of the constitution and the legislative supremacy of Parliament in cases of clear conflict (i.e. in conflict,
domestic law prevails). The 2010 constitution by contrast, seems to promote a Monist system, which makes Int. Law directly
applicable, without any need for domestic ratification. This would mean that Int. Law would be at the same level as the constitution,
and that the constitution would have to be read so as not to conflict with Int. Law. I.e. Int law is supreme in effect. Our current
‘Monist’ system would suggest that Int. Law should be at the top of the hierarchy, above the constitution. However, this appears to
be in direct conflict with A2(1) of the constitution, which announces the supremacy of the Constitution above all other laws; A2(3)
which states that validity or legality of the constitution is not subject to challenge, and A2(4) which provides that any law in conflict
with the constitution is void to the extent of the inconsistency. Thus, it is not clear where Int. Law fits in, and what law is to prevail
during conflict. Scholar Kabua states “Although international law is deemed to have direct application without the necessity of
domestic legislation, there are problematic issues and ambiguities that have an implication for the extent to which international law
may be applicable.”
 Statutory Sources
1) The Constitution- This is the overarching law of the state, it is a document that holds special legal sanctity and establishes the
major organs of government and outlines their powers. The key concepts it enshrines are the Rule of Law, the Separation of Powers,
Constitutionalism, Checks & Balances. It is supreme [A2]. Types of Constitutions include:
a) Written or Unwritten;
b) Flexible or Rigid;
c) Autochtonous or Allochtonous (get meaning from Con law);
d) Federal or Unitary;
e) Presidential or Parliamentary (Presidential means where head is president, whilst parliamentary means where head is PM);
f) Secular or Religious;
g) Monist or Dualist
2) Kenyan Acts of Parliament- These are laws made by parliament after the successful passing of a Bill. A94-96 of the
constitution set out the legislative supremacy of parliament. Parliament is one of the most important sources of law, because it has
primary delegated legislative authority due to its national scope and amount of law they create. Furthermore, Acts of Parl. are an
important source of law because they are: a) modern- parl. often amends existing law to bring them up to date; b) dynamic- parl.
also creates new laws to deal with situations that were not previously contemplated and/or dealt with by CL; c) unified- parl. Acts
often consolidate the law by combining provisions previously contained in different statues; d) they formalize- parl. Acts sometimes
codify the law, making it easier to source the law.
3) Treaties & Conventions- A2* of the constitution says that all treaties and conventions that kenya is party to automatically
become part of Kenya’s legislation. As such, all treaties and conventions that Kenya is a signatory to become a source of law.
4) County Legislation- Similar to category ii above, these are laws made by county assemblies. A185(2) states that “a county
assembly may make any laws that are necessary or incidental to the effective performance of its functions”.
5) Foreign Legislation- This refers generally to the law binding states, as well as other international legal persons, in the
international arena. However, due to international law creating duties for states in respect to their own citizens and residents,
international law has an impact on municipal law. The best example is international human rights law, which is encompassed in
various legal instruments. For Kenya, important legal instruments with provisions touching on human rights include: United Nations
Charter, 1946, Universal Declaration of Human Rights, 1948, VCLT etc.
6) Delegated Legislation- This is legislation made by executive organs under the authority of Parliament, for example, by-laws,
rules, regulations, orders, directions, tariffs, warrants, resolutions, guidelines, proclamations [See s2 Statutory Instruments Act]. The
benefits of delegated legislation are that time is saved (it can be intro quickly where necessary and permits rules to be changed to
respond to emergencies and also saves Parl. Time); moreover it allows access to particular expertise where parl. Is not competent to
deal with technical legislation and it is flexible (easily withdrawn or amended). However, there are some disadvantages to delegated
legislation, namely that there is a loss of parl control, there is insufficient contemplation on the legislation before its enacted, there is
a tendency to legislate excessively and there is inadequate publicity of the legislation.
Tests: to determine the validity of the delegated legislation, certain tests need to be met (CURC): 1) Certainty test- delegate
legislation must be unambiguous, ambiguous legislation will be interpreted in favour of the subject of the laws. 2) Ultra Vires test-
the legislation must not exceed the powers of the delegated authority; this test applies both to substantive and procedural reasons. 3)
Reasonableness test- delegated legislation will be deemed invalid if it suffers from Wednesdbury unreasonableness.[read] 4)
Consistency test- the delegated legislation must be consistent with the general law. In R v Nbi City Council exp Matatu Owners
Association- NCC increased motorist parking rates in the City by doubling them for private vehicles and for matatus. It was held
that the NCC had acted unreasonably because it had increased fare w/out providing better services to motorists. *In this instance,
the NCC was delegated power from parliament (via an Act of Parl.) to legislate on this issue.
Parl’s power: The power to make delegate legislation is ultimately derived from parliament, because parl have to give the other
body authority via an Act of Parl. Parl thus retains general control over the procedure for enacting such law (since they create it).
Sometimes, parl. Requires that the delegated legislation is first presented to parliament before enactment. This may be for a positive
resolution by parl. Or simily to give parl a chance to object to certain laws w/in a specified time frame, failing which the legisl
automatically become law (negative procedure). Parl also has a standing committee on delegated legislation, whose function is to
scrutinize statutory instruments from a technical point of view. Moreover, Parl enacted the Statutory Instruments Act [2013] to
provide comprehensive control over all subsidiary legislation. This requires consultation, regulatory impact statement, enables parl
scrutiny and a provision for automatic expiry. Thus, evident that even though authority has been delegated out of parl, they still
retain substantial power.
Judicial power: Since it is possible for DL to be challenged via judicial review, the courts do hold some power over DL. Any
person/body that parl. Has delegated authority to can be JR is they have acted un-procedurally or ultra vires. The court is also
allowed to test the validity of the DL based if a claim for JR is brought.
Interpretation of Legislation- This is important because legislation may generate different and potentially conflicting human
understanding, thus there is a need for a mechanism and method for determining the proper and authoritative interpretation to be
applied. Methods of interpretation may be divided into 4 categories: CARP--> Canons, Aids, Rules, Presumptions.
i) Canons- these philosophical approaches to statutory interpretation & can be divided into three: A) Literal rule- this is the primary
rule that applies where the words in q are clear & unambiguous. It requires that courts interpret words in their plain or grammatical
meaning. B) Golden rule- applicable where there is ambiguity, the court will adopt the least absurd meaning and interpret it
according to the intention of the legislature. C) Purposive/Mischief rule- court will examine the entire Act to find out its purpose
and what the ‘mischief’ or defect it was intended to solve was. Court must consider 4 things: the CL before the Act, the
mischief/defect which the CL didn’t provide for, the remedy Parl. Has appointed to cure the mischief, & the true reason for the
remedy. The judges interpretation must supress the mischief and advance the remedy. Case for Literal rule: Whitely v Chapell,
accused impersonated a dead person & charged with an offence to impersonate ‘any person entitled to vote’ at an election.
Acquitted because dead person is not entitled to vote. Took literal meaning of the provision.
Case for Golden rule: Adler v George, accused obstructed HM Forces in a prohibited place. The statute made it an offence to
obstruct HM Forces ‘in the vicinity of a prohibited place’. Court held that okay to extend literal meaning to include the prohibited
area itself.
Case for Purposive rule: Smith v Hughes, accused (a prostitute) was attracting attention of passers-by from a balcony window
above a street. Statute made it an offence to solicit on the street. Took a purposive approach and held that the mischief this Act was
aimed at addressing was to clean up the streets to enable people to walk w/out being molested of solicited by prostitutes. Thus, the
accused’s actual location was irrelevant, so long as she was attracting the attention of persons on the street.
ii) Aids- these are elements in the legislative instrument that assist in determining the meaning to apply. They may be intrinsic
(found within that legislative instrument) or extrinsic (found in the legal framework generally. Intrinsic aids include, the short or
long title of the statute, the preamble/objects clause, the Interpretations clause, the section/sub-headings, the schedules, the
illustrations, the punctuations. The Extrinsic aids include contents of other relevant statutes or documents. For e.g. the
Interpretations and Genral Provisions Act, statutes from other jurisdictions, linked statutes (for e.g a statute which uses a term that is
defined in another, in this case court = use the same meaning or the former statute to the current one), other aids could also be
dictionaries or published Bills or Int. Law, plus more.
iii) Rules- these are supplementary principles which have been developed through CL and case law. They include: A) Ejusdem
Generis rule- means ‘the general shall be confined to the specific’; i.e. where a list of categories is made in the Act, and followed
with ‘etc’ or ‘and so on’ or ‘for e.g.’, then the general words must be interpreted to mean the same kind of thing as est. by the
specific words which precede them. Thus, general words are given limited meaning. B) Expressio Unis est Exclusio Alterius- means
a specific expression shall exclude the alternative expression. If parl. Used a particular phrase that has specific meaning, parl. Will
be interpreted as not intending to apply any non-specific or diff meaning. Expressing one thing, implicitly exlcudes anything else.
C) Noscitur a Sociis- means looking at the context in order to understand the interpretation to be applied. This applies where a word
could have various meanings. Case for Ejusdem Generis rule: Evans v Cross, E was charged with ‘ignoring a traffic sign’ after he
crossed to the wrong side of the road despite road markings. In the Act, ‘traffic signs’ were defined as ‘all signals, warning
signposts, direction posts, signs or other devices.’ Held that the words ‘other devices’ meant a sign similar to the other categories. A
painted line was not in this category, thus acquitted.
iv) Presumptions- these are general legal rules whose meaning is assumed in legislative texts unless otherwise rebutted. There are
however some irrebuttable presumptions. For e.g. ‘that specific provisions prevail over general ones’ or that ‘subsequent legislation
prevails over older legislation where there is a conflict’ plus many more.
N.b. Subsidiary/delegate legislation is interpreted in the same way as Acts of Parl. But see s27-35 of the Interpretation and
General Provisions Act.
Non-Statutory Sources
1) English Common Law & Doctrines of Equity- English law emerged more than ten centuries after Roman law. Though initially
derived from the customs of the Anglo-Saxons, it was not until after the 1066 Norman Conquest by William the Conqueror that this
law was unified. At the outset, the Norman kings commissioned itinerant justices or King’s Commissioners who would tour the
country to collect rent for the king from his vassals under a system of feudal land tenure. As the Norman kings gradually
consolidated their power, the King’s justices gained limited judicial power to try some criminal cases (i.e. offences against the
Crown). By the time of King Henry II (1154 – 89), the justices were also judging civil disputes. A definite attempt was made to
establish a common legal system for the whole country. The justices would settle local disputes according to the customs of each
place. They would however discard any customs which they considered unfavourable to justice or immoral. This was followed by a
gradual synthesis of acceptable customs into a coherent body of law of general application. It was essentially a judge-made law. The
judges rarely had statutes or legislation to guide them; they therefore resorted to following previous decisions, leading to the
doctrine of stare decisis and the phenomenon of binding judicial precedent which is a characteristic feature of English law today.
The writ system- Common law, though initially flexible, was soon heavily burdened by rigid procedures that stymied its further
development. To begin an action in a royal court, a claimant had to obtain a special document called a writ [a written command
issued by the Lord Chancellor in the king’s name, ordering the defendant to appear and show cause why the claimant should not be
given the relief claimed]. By 1258, no new varieties of writs were being issued, thus restricting the growth of common law into new
territory. This led to hardship to litigants and unfairness especially to plaintiffs. The main problems with common law were: (1)
obsession with procedural detail [even small clerical mistakes in a writ could be used to defeat a claim]; (2) limited remedies – only
damages were available and (3) bias – the system was easily abused and subjected to corruption by rich or powerful litigants.
The Court of Chancery and the development of Equity- From early on, the practice had developed of petitioning the king in
chambers in certain cases where the courts were unable to help. As petitioners grew in number, the king delegated the task to his
Lord Chancellor, normally an ecclesiastic, who would decide the matter according to rules of natural justice and fairness. The Lord
Chancellor was named the keeper of the king’s conscience. The first non-ecclesiastic was Thomas More. This was the beginning of
the Court of Chancery and the body of law known as equity. Equity was quite flexible. It developed: a)New rights – Equity
recognised and protected rights which common law did not e.g. the rights of a beneficiary in a trust. b) Better procedure – Equity
developed more effective procedures for bringing a disputed matter to a decision e.g. by use of plaints. c) New remedies – The only
remedy in common law was damages i.e. monetary compensation to the wronged party. Equity was able to order the defendant to
abstain from wrong doing (injunctions), to fulfil his promises (specific performance) or even to restore the pre-contractual position
(rescission). Equity initially varied widely according to the dispositions of successive Lord Chancellors. It came under avid
criticism with one eminent jurist [John Selden] asserting, “Equity varies as the length of each Chancellor’s foot.” With time, equity
was formalised into a set of rules and principles, almost as rigid as common law. The final step in the development of common law
and equity was prompted by the Judicature Acts of 1873 and 1875 which empowered all courts to apply both the common law and
the doctrines of equity. With the merger of the substance and application of common law and equity, what remains of equity are its
special rules, remedies and procedures.
2) International Customary Law- This is a custom that is practiced throughout the international community, to the extent that it
becomes recognized as binding on all states. It is therefore an additional source of international law. Characteristics of
International customs include: shared, recognized, accepted. Thus, the word ‘customs’ in international law means it is accepted by
states and recognized as being binding to them. These customs are ASSUMED to be binding, it is not always binding, n.b in the
situations in which they are not binding, they will not be a law for that state. Customs by their nature are unwritten, the moment
they get written they become treaties. There are two criteria for determining if a rule of international customary law exists: State
practice + Opinio Juris. State practice: The states practice should be consistent with the customary rule and should apply it
consistently. This is overt and objective in its nature. A significant number of States, including those States whose interests would
be specially affected by the creation of a CIL rule, need to participate in the practice. State practice should amount to a consistent
pattern of behaviour over a sufficient period of time. Opinio Juris: The States belief that such practice is required by law. This is the
subjective belief of the state of that practice- not only conduct but acceptance. This is a psychological element that requires a state
to believe they are under a legal obligation to follow a particular practice. Both elements are complementary and compulsory for the
creation of CIL. Since this is a burdensome criteria to prove the existence of a CIL, and is often surrounded by uncertainties, treaties
have become increasingly important to regulate international relations among states. It is a two stage test: first is conduct and
second is belief that the conduct is required by law. International customary law must be proved in court. Anyone who claims that a
law is an international customary law, it has to be proven in court.
3) Case Law/ Judicial Precedent- Case law refers to judge made law and it incorporates both CL and equity. It is dependent for its
operation on the reliance of judicial officers on past decisions of courts of similar or higher jurisdiction. This practice led to the
doctrine of binding precedent (stare decisis). This doctrine of stare decisis is at the heart of the English legal system. It refers to the
fact that within the hierarchical structure of the English courts, a decision of a higher court will be binding on a lower court. When
judges try cases, they will check to see if a similar situation has come before a court previously. If the precedent was set by a court
of equal or higher status to the court deciding the new case, then the judge in the present case should follow the rule of law
established in the earlier case. . A judicial precedent speaks in England with authority; it is not merely evidence of the law, but a
source of it, and the courts are bound to follow the law that is so established. The proper operation of the doctrine of binding
precedent is therefore premised on three elements: (1) adequate and reliable law reports, (2) rules for extracting the legal principle
of the previous case i.e. its ratio decidendi and (3) classification of precedent as binding or persuasive based on the hierarchy of the
courts.
(1) Law reports are annual compilations and analyses of the important decisions in a legal system. They are a useful tool for all legal
practitioners (judges and lawyers) to know how cases have been determined, how the law is developing and therefore what
principles of law to apply. (2) Ratio decidendi and obiter dicta. The operation of the doctrine of binding precedent relies on the
identification and isolation of the material facts of the case and the decision made by the judge on the basis of the facts. The reason
or rationale behind a judge’s decision is called the ratio decidendi (i.e. reason for the decision). It is the legal rule or principles
applied in the determination of the material facts of the case. All other statements made by the judge in his judgment are considered
to have been made ‘by the way’ and are known as obiter dicta. Obiter may relate to a hypothetical situation, constitute a dissenting
judgment or simply be off-the-cuff remarks. (3) Classification of precedent and the hierarchy of the courts.
There are two main types of precedent: (a) authoritative or binding precedent. The judge must follow binding precedent whether he
approves or not. Such precedent excludes his judicial discretion for the future. (b) persuasive precedent In contrast, a judge is not
obliged to follow persuasive precedent but he may take it into consideration. This would be from courts of similar status, courts of
other jurisdictions or involving cases which differ to some material extent. In summary, to apply a precedent: (I) it must be a
proposition of law and not a decision on a q of fact; (ii) it must form part of the ratio decidendi of the case; (iii) the material facts of
the two cases must be the same; (iv) the court which made the previous decision had superior or in some cases similar jurisdiction to
the subsequent court. A precedent will not be binding if: (1) it has been overruled by a higher court; (2) it has been overruled by
statute; (3) it was not made per incuriam i.e. through lack of care, because the judge did not take into account an existing precedent
of statutory provision; or (4) the facts of the case before the court can be materially distinguished from previous cases. (5) the ratio
decidendi is not obscure. (6) the ratio is not too wide e.g. Donoghue v Stevenson case (landmark case of tort law defining what
constitutes negligence) – duty of care was subsequently refined (by adding the element of proximity)
Advantages of Precedent incl, Consistency. There is an element of certainty and uniformity in the administration of justice.
Flexibility- Decisions can be adopted and extended to reflect changes in society. Aptitude for growth- By the system of
distinguishing cases. Practical- Law develops in response to actual situations. English law is practical, not theoretical; pragmatic,
not dogmatic. But can be disadvantageous bc complex and bulky- there are very many cases which have been decided. The amount
of authorities, and the distinction of one from the other, make it difficult to apply the law. Also can be rigid, because system of
precedent can limit the judges overall discretion, leading to an unfair result and can also be confusing because judges can sometimes
be forced to make illogical distinctions to avoid an unfair result.
4) African Customary Law- Derived from the rules developed in diff indigenous African communities, that existed before the
advent of colonialism, but that have developed and adapted to the contemporary situation. Scope of ACL is provided for in s3(2)
Judicature Act, ss2,9,17 Magistrates Courts Act, A44 + A45(4) Constitution. All of these provide that ACL only applies in civil
cases, in which at least 1 party is subject to or affected by it, so long as it is not inconsistent with any written law and is not
repugnant to justice and morality. However, the q has recently risen, whether due to A159(2c), the scope of ACL may expand
beyond its current narrow civil/personal law scope to cover wider remit. The repugnance clause- see s.3(2) Judicature Act, art
159(3b) Constitution of Kenya 2010). The debate on the place of African customary law in the modern African state was best
captured in the landmark S.M. Otieno Case which involved a burial dispute of a Luo African man, who was a Christian, and a
successful lawyer, largely based in Nairobi until the time of his death.
5) Religious Law- Refers to the personal law of Kenya’s inhabitants (I.e relating to marriage, divorce and in some cases
inhertiance) that derives from their religious beliefs and practices, which have given rise to some applicable legal principles. This
law , like ACL, is largely considered to be unwritten law, though some religious legal traditions like canon law are fully codified.
Including esp. Islamic Law [art 24(4), 32(2), 45(4b), 170(5), Constitution of Kenya, 2010]. Personal Laws/Legal Traditions –
Christian, Islamic, Hindu, Others – see esp. The Marriage Act, 2014, the Succession Act, the Kadhi Courts Act, the Magistrate’s
Courts Act, etc.
Dispute Resolution
Court System in Kenya: The Kenyan Court System, like that of most Common law countries, has a clearly established hierarchy.
However, we have borrowed from the Civil law system the concept of specialist courts dealing with specialist legal matters, with
the Constitution of Kenya, 2010 entrenching this through art 162(2) of the Constitution, as read together with art 165(5b). The
Constitution also recognises the existence of tribunals (which are ordinarily established by statute, art 1(3c), 159(1), 165(6), 169(d))
and alternative dispute resolution mechanisms like arbitration (see art 159(2c)).
Proceedings: Structure and procedure: Process of Civil Litigation – It is adversarial in nature. The parties involved are generally
called the Plaintiff and Defendant respectively.
Pleadings stage: Proceedings are commenced by means of a Plaint, or sometimes by Originating Summons, Petition, Originating
Notice of Motion, Statement of Claim or Appeal (from a tribunal/inferior body). After commencement, the Defendant/Respondent
responds formally through a Defence, Response or Replying Affidavit as the case requires. Sometimes, the Defendant may file a
counter-claim, and often the Plaintiff has a chance to respond to the Defendant’s response.
Pre-Trial Stage: After close of pleadings, or sometimes during pleadings, parties are required to disclose important documents and
evidence they intend to rely on. They may also seek discovery of documents/evidence in the possession of the other party.
 Interlocutory Applications: Sometimes, before the case may proceed to substantive hearing, parties are allowed to file all manner
of applications to better enhance the procedural and substantive justice the litigation process seeks to attain.
Trial Stage. Ordinarily this is done by way of viva voce evidence (living voice) though sometimes witnesses may only be required
to swear affidavits (written statements of their evidence) for consideration by the Court. For ordinary trials, witnesses will be
examined on oath (examination in chief, cross-examination then re-examination).
Judgment/Execution stage. After the case concludes, the judicial officer will give a judgment/ruling, and the successful party can
then utilise the formal statement of the decision (called the decree or order) to obtain the benefit indicated by the court. This may
require further applications to the Court, e.g. where the judgment-debtor fails to pay the amount decreed.
Appellate stage. Sometimes, the party who has lost chooses to file an appeal, thus prolonging the civil litigation until the appellate
process is exhausted.
Process of Criminal Litigation – Like civil litigation, it is generally adversarial in nature. The parties involved are generally the
State (called ‘the Republic’ in Kenya) and the Accused. The State is normally represented by a Prosecutor.
Investigation stage. Normally done by the Kenya Police, sometimes by other investigative agencies like Ethics and Anti-
Corruption Commission, etc. May involve arrest of the suspect and remand pending trial.
Prosecution/Trial stage. Ordinarily commences with a Charge Sheet, drawn to indicate what criminal offences the Accused is
suspected of having committed. The Trial stage is generally adversarial, and always involves viva voce evidence if the Accused
pleads Not Guilty on first appearance in court. The accused can apply for bail pending trial.
Judgment/Appeal stage. After trial, the judicial officer will give a judgment, and the convicted person has a right of appeal to
higher courts. Again, the court may give bail pending appeal if special conditions are met.
Sentencing/Execution stage. After conviction (at any level), the court will sentence the Accused person, who will then serve the
punishment prescribed.
Judicial Accountability and Court Performance Standards- Judicial accountability simply means that judicial officers do not
have unrestrained authority, but exercise delegated authority. They must therefore be answerable to the people. The system of
checks and balances allows each arm of government to check the other arm, but judicial independence means that judges should not
be asked to account directly for their judicial decisions (unless there is evidence of fraud, corruption, etc). General Mechanisms of
Judicial Accountability – For judicial decisions, accountability is through the process of appeal which allows erroneous decisions to
be challenged and overturned/varied. For judicial conduct, there are 2 constitutional accountability mechanisms:
 Judicial vetting process – Under the Judges and Magistrates Vetting Board, set up pursuant to s.23 of the Sixth Schedule of
the Constitution of Kenya, 2010.
 Judicial discipline process – Starting with the Judicial Service Commission, then the establishment of a judicial tribunal (art
168)
Court Performance Standards – This is a question of the quality of output of the legal-justice system. Various mechanisms have
been proposed to address this issue, e.g. performance-based evaluation of individual judges, regular training through the Judicial
Training Institute, raising the standards of judicial recruitment by the JSC, etc.
Court Structure in Kenya: Superior Courts: A162 of the Constitution provides that the superior courts are the Supreme Court,
the Court of Appeal, the High Court and the Employment and labour relations court as well as the environment court (which sub
article A162(2) provides shall have the same status as the high court).
A) Supreme Court- A163 provides that the SC consists of the Chief Justice, who shall be the president of the court, the Deputy
Chief Justice, who shall deputise for the Chief Justice; and be the vice-president of the court; and five other judges. Subarticle (2)
provides that the SC must have 5 judges sitting for it to be properly composed. A163(3) provides that the Supreme Court shall have
exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President arising under Article
140; and appellate jurisdiction to hear and determine appeals from the Court of Appeal( regarding any rights in a case involving the
interpretation of the constitution and in any other case which the SC or CA certifies that a matter of general public importance is
involved); and any other court or tribunal as prescribed by national legislation. A163(6) also provides that the Supreme Court may
give an advisory opinion at the request of the national government, any State organ, or any county government with respect to any
matter concerning county government; and sub article (7) provides that all courts, other than the Supreme Court, are bound by the
decisions of the Supreme Court.
B) Court of Appeal- A164 provides that the CA shall consist of the number of judges, being not fewer than twelve, as may be
prescribed by an Act of Parliament; and shall be organised and administered in the manner prescribed by an Act of Parliament.
Subarticle (2) also provides that there shall be a president of the Court of Appeal who shall be elected by the judges of the Court of
Appeal from among themselves. And sub article (3) provides that the Court of Appeal has jurisdiction to hear appeals from the High
Court; and any other court or tribunal as prescribed by an Act of Parliament.
C) High Court/ Environment & Land Court/ Employment and Labour Relations Court- A165 provides that the HC shall consist of
the number of judges prescribed by an Act of Parliament; and shall be organised and administered in the manner prescribed by an
Act of Parliament. Subarticle (2) provides that there shall be a Principal Judge of the High Court, who shall be elected by the judges
of the High Court from among themselves. Subarticle (3) further provides that the High Court shall have unlimited original
jurisdiction in criminal and civil matters; jurisdiction to determine the question whether a right or fundamental freedom in the Bill
of Rights has been denied, violated, infringed or threatened; jurisdiction to hear an appeal from a decision of a tribunal appointed
under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;
jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of and any other
jurisdiction, original or appellate, conferred on it by legislation. Subarticle (5) provides that the High Court shall not have
jurisdiction in respect of matters reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or falling
within the jurisdiction of the courts contemplated in Article 162 (2). The HC has supervisory jurisdiction over the subordinate courts
and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court. Because of this,
the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in
clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.
The Environment & Land Court- The court is established under section 4 of the Environment and Land Court Act . It has
jurisdiction to hear any other dispute relating to environment and land. The court has powers to deal with disputes relating to land
administration and management. The court is also empowered to hear cases relating to public, private and community land and
contracts, choses in action or other instruments granting any enforceable interests in land.
The Employment and Labour Relations Court- court is established in pursuant of Article 162 (2) (a) of the Constitution of Kenya
2010, for the purpose of settling employment and Industrial relations disputes and the furtherance, securing and maintenance of
good employment and labor relations in Kenya. This court may have jurisdiction to hear disputes relating to or arising out of
employment between an employer and an employee, disputes between an employer and a trade union, Disputes between an
employer’s organisation and a trade union’s organization, Disputes between trade unions, disputes between employer
organisations, disputes between a trade union and a member thereof, disputes relating to the registration and enforcement of
collective agreements. In exercise of its jurisdiction, the court shall have power to make any of the following orders:- Interim
preservation orders including injunctions in cases of urgency, A prohibitory order, An order for specific performance, A declaratory
order, An award of compensation in any circumstances contemplated under the Industrial Court Act or any written Law, An order
for reinstatement of any employee within three years of dismissal, subject to such conditions as the court thinks fit to impose
under circumstances contemplated under any written Law, Any other appropriate relief as the court may deem fit to grant.

Court Structure in Kenya: Subordinate Courts- A169 provides that the subordinate courts are the Magistrates courts; the
Kadhis’ courts; the Courts Martial; and any other court or local tribunal as may be established by an Act of Parliament, other than
the courts established as superior courts.
A) Magistrates Courts- they have both civil and criminal jurisdiction to hear claims, albeit not all civil claims, only some of a
certain level. Special magistrate courts exist such as children court and anti-corruption court.
B) Kadhis Courts- Notably, this is the only subordinate court that the constitution speaks on expressly. A170 provides that this court
shall have a Chief Kadhi and such number, being not fewer than three, of other Kadhis as may be prescribed under an Act of
Parliament. Subarticle (2) provides for the qualifications of a Kadhi, and states that for a person to be appointed to hold or act in the
office of Kadhi, the person must professes the Muslim religion; and possesses such knowledge of the Muslim law applicable to any
sects of Muslims as qualifies the person, in the opinion of the Judicial Service Commission, to hold a Kadhi’s court. Subarticle (5)
provides that the jurisdiction of a Kadhis’ court shall be limited to the determination of questions of Muslim law relating to personal
status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the
jurisdiction of the Kadhi’s courts.
C) Courts Martial- The Court Martial hears cases involving people serving in the Military. They are established under the Armed
Forces Act.
D) Tribunals: Aside from the conventional courts system, certain statutes establish some courts/tribunals/review boards with special
and sometimes exclusive jurisdiction to deal with various issues. Tribunals are bodies established by Acts of Parliament to exercise
judicial or quasi-judicial functions. They supplement ordinary courts in the administration of justice. Tribunals, however, do not
have penal jurisdiction. Tribunals, like the courts, have to respect the Bill of Rights in their decisions and not be repugnant to justice
and morality or be inconsistent with the Constitution or other laws of the land. Most tribunals are subject to the supervision of the
High Court. All tribunals fall under the Judiciary. Advantages of Tribunals- They are generally quicker, cheaper and more informal
methods of settling disputes. They are more flexible since they aren’t governed by the doctrine of judicial precedent. They normally
have experts in their panel who are qualified in the particular area under review. They relieve the courts of a large workload of
relatively minor problems. Disadvantages- Too much discretionary power can result in tribunal decisions being unpredictable and
inconsistent. Technical experts may not be impartial, or may be guilty of procedural impropriety. The reasons for a tribunals
decisions are not always made known.
ADR: ADR are forms of dispute resolution that do not rely on the formal courts system, but instead are based on agreement
between disputing parties to utilise a different forum. It is also possible for ADR to be mandated by the court or by statute (e.g. the
Marriage Act). The most formalised ADR system is Arbitration, which is governed by the Arbitration Act. Arbitration is the settling
of civil disputes by a legal/technical expert outside of courts and tribunals. It is generally a less formal method of dispute resolution
that does not follow the strict rules of Evidence and Procedure. A dispute may be referred to arbitration by agreement of the parties,
by the court itself or as a consequence of statute. Arbitration agreements- Many contracts, particularly commercial contracts,
contain a clause which requires that disputes between the parties arising out of the contract must be referred to arbitration. Such an
arbitration agreement will also contain all the procedural details of the arbitration e.g. name of the arbitrator or how he is to be
chosen, whether there is possibility of appeal, etc. An arbitration agreement is binding on the parties and can be enforced by the
courts. Due to the privacy of the hearing and the expertise of the arbitrator, arbitration is a preferred and expeditious method for
settling many civil disputes.
The Legal Profession
The AG: The role of the AG is that of the government/the president’s lawyer. A156(4) states the AG is the principal legal adviser
to the Government. The AG is to represent the national government in court or in any other legal proceedings to which the national
government is a party, other than criminal proceedings; and shall perform any other functions conferred on the office by an Act of
Parliament or by the President. The AG’s power has been limited by the 2010 constitution to a large extent, for e.g. the repealed
constitution provided the office of the Attorney General with immense powers including the power of directing of public
prosecutions, which the 2010 constitution has now given to the newly created office of the DPP. A156 provides that the Attorney-
General will be nominated by the President with the approval of the National Assembly, and then appointed by the President.
Subarticle (3) provides the qualifications for AG, namely, someone with at least fifteen years experience as a distinguished
academic, judicial officer, superior judge, legal practitioner or such experience in other relevant legal field, held any of these
qualifications for a period amounting to or aggregating to fifteen years. Subarticle (6) provides that the Attorney-General shall
promote, protect and uphold the rule of law and defend the public interest.
DPP: A157 provides that The Director of Public Prosecutions shall be nominated and, with the approval of the National Assembly,
appointed by the President. The qualifications for DPP are that the person has to have at least ten years’ experience as a either a
superior court judge or professionally qualified magistrate; or as a distinguished academic or legal practitioner or such experience in
other relevant legal field; or held any of these qualifications for a period amounting to or aggregating to ten years.Subarticle (4)
provides that the Director of Public Prosecutions shall have power to direct the Inspector- General of the National Police Service to
investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction. The
DPP has a term of 8 years and is not eligible for re-appointment. The DPP has powers of prosecution and can (a) institute and
undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to
have been committed; (b) take over and continue any criminal proceedings commenced in any court (other than a court martial)
that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and (c)
subject to clauses (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the
Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b). Subarticle (10) states that
The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal
proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or
authority. However, the DPP must have regard to the public interest, the interests of the administration of justice and the need to
prevent and avoid abuse of the legal process [A157(11)]. A158 provides the grounds upon which the DPP can be removed, such as
bankruptcy, incompetence, gross misconduct etc. The Director of Public Prosecutions may resign from office by giving notice, in
writing, to the President.
The JSC: A171 + A172 of the constitution set out the rules governing the JSC. The Judicial Service Commission is a body that has
been established to carry out a number or functions. A172 provides that the JSC shall promote and facilitate the independence and
accountability of the judiciary and the efficient, effective and transparent administration of justice and shall (a) recommend to the
President persons for appointment as judge; (b) review and make recommendations on the conditions of service of judges and other
judicial staff, other than their remuneration; (c) appoint, receive complaints against, investigate and remove from office or otherwise
discipline registrars, magistrates, other judicial officers and other staff of the Judiciary, in the manner prescribed by an Act of
Parliament; (d) prepare and implement programmes for the continuing education and training of judges and judicial officers; and
(e) advise the national government on improving the efficiency of the administration of justice. Subarticle (2) provides that the JSC
shall be guided by the following principles while carrying out their functions: (a) competitiveness and transparent processes of
appointment of judicial officers and other staff of the judiciary; and (b) the promotion of gender equality. A171(1) provides that the
commission shall consist of the Chief Justice (chairperson of the Commission), one Supreme Court judge elected by the judges of
the Supreme Court; one Court of Appeal judge elected by the judges of the Court of Appeal; one High Court judge and one
magistrate, one a woman and one a man, elected by the members of the association of judges and magistrates; the Attorney-
General; two advocates, one a woman and one a man, each of whom has at least fifteen years’ experience, elected by the members
of the statutory body responsible for the professional regulation of advocates; one person nominated by the Public Service
Commission; and one woman and one man to represent the public, not being lawyers, appointed by the President with the approval
of the National Assembly. Subarticle (4) provides that members of the Commission, apart from the Chief Justice and the Attorney-
General, shall hold office, provided that they remain qualified, for a term of five years and shall be eligible to be nominated for one
further term of five years.
Chief Registrar of the Judiciary: Functions of this role include: To prepare estimates of expenditure and submit to the National
approval. Administer the Judiciary Fund. Secretary to the Judicial Service Commission; National Council for Administration of
Justice. Perform Judicial functions vested in the Chief Registrar by law. Exercise powers vested in the office of the Chief Registrar
by virtue of any law or regulation and give effect to the directions of the Chief Justice. Authorized officer of the Judiciary who shall
be responsible for the efficient management of the day to day operations and administration of Human Resources in the Judicial
Service. In charge of support services in the Judiciary and in particular, planning, development and organization of staff. Monitor
and enhance administration and office procedures to maximize on efficiency and quality of service. Plan, prepare, implement and
monitor the budget and collect, receive and account for revenue. Prepare reports and proposals on administration issues. In charge
of the procurement of all stores, management and maintenance of all physical facilities.
The Law Reform Commission: The Commission has a statutory and ongoing role of reviewing all the law of Kenya to ensure that
it is modernized, relevant and harmonized with the Constitution of Kenya. Following the promulgation of the Constitution in 2010,
the Commission has an additional mandate of preparing new legislation to give effect to the Constitution. The third mandate is
found in the County Governments Act, No. 17 of 2012 which requires the Commission to assist the county governments in the
development of their laws. This is also a requirement found in the Act.
The CLE: The Council of Legal Education is a government body established by an act of parliament to improve the quality of legal
education in Kenya. Its core function is to supervise and exercise control over legal education in Kenya and to advise the
Government of Kenya. Other functions include organizing and conducting courses for legal knowledge, professional skills, and
experience for admission to the Roll of Advocates, legislative drafting and induction of magistrates and staff selected to be
appointed magistrates.
KSL: This is the only bar school in Kenya, whose role is to admit students into the bar as they become advocates of the high court.
The Kenya School of Law was established as an independent statutory body in 1995 under the Council of Legal Education Act with
the specific mandate to organize and conduct courses for the development of legal professionals, Government personnel and
paralegal personnel. In practice, the programmes were limited to training of young lawyers for entry into the legal profession.
Advocates: Advocate, is a person who is professionally qualified to plead the cause of another in a court of law.
LSK: The LSK is a bar association, with membership of all practicing advocates. It has the mandate to advise and assist members
of the legal profession, and the larger public in all matters relating to the administration of justice in Kenya. It was established under
the LSK Act 1992. It exists to maintain and promote the ROL by ensuring that an independent and efficient legal profession serves
the people of Kenya. Its key objectives are to maintain and improve the standards or conduct running of the legal profession; to
facilitate the acquisition of legal knowledge by members of the legal profession; to assist the government and the courts in matters
affecting legislation and the administration justice; to protect, represent and assist members of the legal profession in respect of
conditions of practice and otherwise; to protect and assist the public in all maters touching, ancillary or incidental to the law.
Extra
Debate: Judicial Activism v Juricial Restraint- [Inherent powers of the Court and progressive interpretation [see art 20(3), 159(2),
259] A debate has arisen about the proper attitude to be adopted by the Court when faced with the task of interpretation of the
formal sources of law, with 2 largely competing philosophies, i.e. judicial activism and judicial restraint. Each philosophy has its
strong supporters: Judicial Activism is the philosophy that urges judges to get out of their comfort zones and apply their judicial
power creatively to help enforcement of fundamental rights and freedoms, to challenge the tendency to accumulation of
executive/legislative power, to counter the misuse/abuse of power by the other arms of government, to step into the breach when the
legislature is suffering from legislative paralysis and make determinations perceived to be in the public interest or for the common
good, to safeguard individual/minority rights against majoritarianism, etc. Judicial Restraint is the philosophy that urges judicial
officers to exhibit a certain judicial humility in their work, not to rush to project their personal opinions into the public interest or
the common good, to resist the temptation for entering into political questions, to recognise the political context in which laws are
made, to respect the separation of powers in government, and to defer to the legislative solution and the executive policy in matters
within the competence of those two arms of government. There is a vibrant debate whether Kenya’s Constitution supports judicial
activism or judicial restraint. [See e.g. Kanjama, Standard on Sunday articles: Judging well, Constitution worship, Judicial restraint,
Judicial activism.]