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UNIT NAME
INTRODUCTION
TOLAW
SUM MARY
AND
GOVERNANCE

Lecture
by
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SOURCES OF LAW
Sources of Law contained in sec 3 of the judicature act (cap 8):
 The constitution,
 All other written laws including the acts of parliament of the
United Kingdom,
 The substance of the common law, doctrines of equity and
statutes of general application inforce in England on the 12TH
August 1897,
 The African customary law.
Other sources
 Case law /Judicial precedents
 Delegated/subsidiary legislation and
 Islamic law .

http://www.chrm.or.ke/
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THE CONSTITUTION
The Kenyan constitution is a written document originally enacted on the 12TH
December 1963. It was amended 1964,1969 and lastly 2010.
It is the supreme law of the the land and if any other law is inconsistent with the
constitution, the constitution prevails and that other law shall to the extent of
its inconsistence be declared null and void.
It creates new structures and new institutions that demand for new laws to
function.
It creates the three organs of government and provides for their powers,
provides for the rule of law, provides for fundamental rights and freedoms of
Kenyan citizens.
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The Legislative process in Kenya

 First reading –the clerk of the National Assembly reads out the
title of the bill and there is no debate .
 Second reading – the mover of the motion explains and
defends the bill. The general principles of the bill are
discussed in detail. The debate begins and members are
allowed to take part in that debate.
 Committee stage- the bill is submitted to the committee of the
whole house or a select committee. It is put under a detailed
scrutiny and analysis. Amendment shall be made at this
stage.
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Legislative process cont’

 Reporting stage – the chairman of the committee submits the

report to the house and the amendments made at the
committee stage are again debated.
 Third reading – There is limited debate on the general
principles of the bill. A final vote is taken and if it sails
through, it will be deemed that the national assembly has
passed this bill.
 Presidential assent – once a bill is passed by parliament it’s
sent to the president for assent. The president has 14 days to
either sign it into law or refer it back to parliament
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DELEGATED/SUBSIDIARY LEGISLATION
This is law made by persons or institutions other than
parliament pursuant to such powers to make law being
delegated by parliament. Any diversion from the mother
act or exceeding the armpit of statutory authority the
courts can declare such a legislation ultra vires and
therefore null and void .
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REASONS/ADVANTAGES FOR DELEGATED LEGISLATION

i. Parliament does not have enough time to discuss and analyze all
national matters.
ii. Parliament is not always in session. Some matters are so urgent
that they require immediate attention.
iii. Technicality involved. Some issues can be handled more
effectively by experts for example drug regulation will be better
dealt with by the Kenya Medical Association.
iv. There is flexibility in delegated legislation because if a by-law or a
statutory order proves impractical it can be revoked quickly.
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CRITCISMS/DISADVANTAGES OF DELEGATED LEGISLATION

i. Lack of publicity
ii. Inadequate judicial control.
iii. Difficult to determine which matters can be delegated and
which ones to be dealt with by parliament itself for example
matters of imposing taxes should remain in parliament.
iv. Delegated powers are sometimes so wide, such that the
prevailing law become uncertain.
v. Parliamentary control is not adequate.
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AFRICAN CUSTOMARY LAW

It is discussed in section 3(2) of the judicature act (cap 8)
Conditions that the African customary law should fulfil in order for it
to be applied by the courts as a source of law:
i. In civil cases never in criminal cases,
ii. Cases in which one or more of the parties is subject to it or
affected by it,
iii. So far as it is not repugnant to justice and morality,
iv. Nor inconsistent with any written law.
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A CLAIM UNDER CUSTOMARY LAW

Sec. 2 of the magistrate act defines a claim under a customary law as a claim
concerning any of the following:-
• Land held under customary tenure
• Marriage , maintenance, divorce and dowry
• Seduction of unmarried woman or girl
• Enticement of or adultery with a married woman
• Matters affecting the status of women, widows and children and in particular
matters of legitimacy, custody, guardianship and adoption
• Intestate succession and the administration of an intestate estate
So far as not governed by any written law.
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JUDICIAL PRECEDENCE/ CASE LAW

The law pronounced by a judge. It is a judgement or a
decision of a court used as an authority for reaching the
same decision in subsequent cases.
Rules that apply to the doctrine of precedents:
 A court that is lower in hierarchy is bound by the
decision of courts which are above it.
 Where the court has correctly decided a case, all
subsequent cases shall follow the decision as long the
facts of the cases are similar .
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TYPES OF PRECEDENTS
 Declaratory precedent – It is declaring or applying
an existing law without extending it.
 Original precedent –No other similar case has ever
been decided and therefore the case is being
decided for the first time but basing the answer on
the general principles of the law.
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TYPES OF PRECEDENTS
 Over-ruling precedent – A case can only be over
ruled where it was wrongly decided. It can be over-
ruled either by the same court that set the precedent
or by a higher court.
 Distinguishing precedent- This is a mechanism of
avoiding a binding precedent by distinguishing
previous case as having material facts that are
different from the case at hand.
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MATTERS CONSIDERED IN CONNECTION WITH THE DOCTRINE OF PRECEDENCE

 Ratio decidendi –means the decision and the reason for the
decision .When a judge is applying a case he must extract the
legal principles upon which the previous case was decided.
 Obiter dicta-statements made by the way in the cause of
making a judgement.
 Stare decisis – let the decision stand. When a case has been
decided by a higher court, its decisions bind the lower court or
when a case is correctly decided the decisions will be applied
to other subsequent cases.
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SUBSTANCE OF THE COMMON LAW AND DOCTRINES OF EQUITY

They will be sources of law if:

• they were in force in England on the 12TH August 1897 &
• So far as the circumstances of Kenya and its inhabitants
permit.
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COMMON LAW
Consists of ancient customs and usages of the English people.
It was based upon judicial decision and embodied in reports of decided
cases, that had been administered by the common law courts of England
since the ancient times.
Short comings of the common law:
 Writ system- People could get redress for grievances, if there was a writ
disclosing the cause of action. Thus, it was felt that it was very rigid .
 In some cases, there were no remedies.
 In some cases, there were remedies but they were insufficient.
 The Procedure followed at common law was restrictive and cumbersome.
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EQUITY
It means fairness, justice, and equality. Doing good or what is morally
right.

MAXIMS OF EQUITY
 He who seeks equity must do equity-

Where a person is seeking the

aid of the court, he must abide by the directions of the court.
 Equity will not assist a volunteer- it means Equity favors a persons
who pays consideration except in trust cases.
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MAXIMS OF EQUITY
. He who comes to equity must come with clean hands. An
example is where a tenant defaults in paying rent. The
lease will be forfeited and the landlord has right of re-
entry.
. Equity does not act in vain- means it does not want to
grant remedies that can not be enforced or orders that
cannot be obeyed.
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MAXIMS OF EQUITY
. Equity is equality. Where property is jointly owned, the
property will be divided into equal shares unless there is
evidence to the contrary.
. Equity will not suffer a wrong to be without a remedy.
Equity will provide a remedy for a wrong that is capable
of being redressed.
. Delay defeats equity. Delay in filing a case by an grieved
party is sufficient ground to be prevented from obtaining
an equitable remedy.
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MUSLIM LAW
Sec. 5 of the Kadhi’s court act provides that Muslim law
shall be applied to matters relating to:
 Personal status,
 Marriage ,
 Divorce or
 Inheritance.
In which all parties profess the Islamic religion.
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HINDU LAW
It refers to the system of personal laws (marriage, adoption,
inheritance, etc.)

Traditionally, it is derived from Hindu texts and traditions, that

shaped the social practice of Hindu communities. 

In modern India, Hindu law is still a part of the law of India

established by the Constitution of India (1950).
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INTERNATIONAL LAW AND RATIFIED TREATIES

Any treaty or convention ratified by Kenya shall form part of the law of Kenya under
the Kenya Constitution 2010.

The core ILO conventions to which Kenya is a member state are:

1. ILO CON. 29 – Forced labour ratified on 13th January 1964

2. ILO CON. 98 – Freedom of Association and Collective Bargaining 13th January

1964
3. ILO CON. 100 – Equal remuneration for work of equal value 7th May 2001
4. ILO CON. 105 – Abolition of forced labour 13th May 2001
5. ILO CON 111 – Discrimination in employment 7th May 2001
6. ILO CON. 138 – Minimum age of employment 9th April 1979
7. ILO CON. 182 – Worst forms of child labour 7th May 2001
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