26.3.
1T INTRODUCTION TO LAW
26.3.1T11 NATURE AND SOURCES OF LAW
MEANING OF LAW
The term ‘law’ is used in a variety of senses. There are laws of physical sciences (e.g.
laws of motion, law of gravity etc.), laws of social sciences (e.g. law of demand and
supply), moral laws and laws of the state. The first two establish the relationship between
cause and effect of certain related facts. Moral laws are laws of human conduct as
members of a society, e.g. ‘Do not tell a lie’ or ‘Treat your fellow men with courtesy’.
The laws of the state are those laws which are made or enforced by a state.
Though there is no generally accepted definition of the word ‘law’, different schools of
law define it in different ways. The following are some of the definitions:
i. According to Holland, “A law is a general rule of external human action
enforced by a sovereign political authority”.
ii. In the words of Salmond, “The law is the body of principles recognized and
applied by the state in the administration of justice”
Thus, law of State refers to a set of rules of conduct and standards prescribed by the
people in authority for governing and regulating peaceful relations between members of a
particular community or State. These rules may originate form Acts of Parliament or
customs, and are enforced by the duly constituted courts of law - punishment in criminal
cases, or payment of damages or delivery property, in civil actions.
PURPOSE OF LAW
Each society or community has its laws that are enforced to ensure that its members may live or
work together in an orderly and peaceable manner. The main purposes of law are:
1. To regulate the conduct or behaviour of the persons
2. To provide justice to the members of the society
3. To maintain the political and economic stability
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4. To protect the fundamental rights and freedoms of the individuals
5. To establish the procedures and regulations regarding the dealings among the individuals
THE SOURCES OF KENYA LAW
According to Salmond, a formal source of law is that from which a rule of law derives its force
and validity; that is the will of the State as manifested in statutes or decisions of the courts (i.e.
the legal source is legislation and precedent), while the historical source is the actual origin of
the rule adopted by the court in arriving at its decision
Section 3 of the Judicature Act sets forth the sources of Kenyan law in the following order:
1. The Constitution of Kenya 2010 (and subsequent amendments to the Constitution) –
refers to a comprehensive framework of rule through which Kenya as a State operates.
2. All other written laws including the Acts of Kenya Parliament and of the United
Kingdom cited in Part I of the Schedule to the Judicature Act, modified in accordance
with Part II of that Schedule; and the Law of Contract Act (Cap 23) of the Parliament of
India. Also by-laws made by County governments or Kenya Railways, etc.
3. The substance of the common law, the doctrines of equity and English statutes of general
application in force in England on 12 th August, 1897. They apply so far only as the
circumstances of Kenya and its inhabitants permit and subject to such qualifications as
those circumstances may render necessary (Section 3(c)).
4. African customary law. Section 3(2) provides that the High Court and all subordinate
courts will apply customary law in civil cases in which one or more of the parties subject
to it or affected by it is African.
5. Islamic Law – Derived from the Quran and is applied by Kadhi`s courts where both
parties profess the Muslim faith and the dispute is related to the matters of: personal
status, marriage, divorce and inheritance.
6. Delegated Legislation – laws made by bodies other than Parliament to which Parliament
has delegated the authority to make the laws. Parliament is not always in session, and
even when it is, it cannot adequately cope with urgent matters. Additionally, it is not well
equipped to handle all matters, especially those of a special or technical nature.
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7. Case Law (or Judicial Precedent) – Refers to the collection of precedents and authority
set by previous judicial decisions on a particular issue or topic. It is law based on rulings
today used to make rulings for tomorrow.
8. International Treaties: a treaty is any legally binding agreement between states
(countries). On signing the treaty (or a Convention, a Protocol, a Pact, an Accord, etc.)
the treaty becomes part of the laws of the signatory state.
26.3.1T12 CLASSIFICATION OF LAW
Law may be classified in different ways:
(a) Public Law and Private Law
(b) Civil Law and Criminal Law
(c) Procedural Law and Substantive Law
(d) International law
1. Public Law is the law that governs the relations between the state and its citizens. It
consists of Constitutional Law, Administrative Law and Criminal Law. Private Law,
also call civil law, is primarily concerned with rights and duties of persons towards
persons.
2. Civil Law and Criminal Law
Civil Law is that law which governs the relations of individuals amongst themselves.
This includes the Law of Contract, the Law of Succession, the Law of Torts, the Law of
Property, etc. Criminal Law consists of wrongs committed against the state. It falls
under public law because it is the duty of the state to protect its citizens. So the state
prosecutes the criminal on behalf of the citizenry.
We can now distinguish between a crime and a civil wrong
A crime may be described as an act, default or conduct prejudicial to the community, the
commission of which, by law, renders the person responsible liable to be prosecuted and
punished accordingly (in the name of the State v ---- (name of accused)). Crime include
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theft, rape, murder, robbery, grievous bodily harm, etc. – all included in the Penal Code
of Kenya.
The punishment for crime is usually by a term imprisonment or imposition of a fine.
Prosecution must establish guilt of the accused beyond any reasonable doubt.
A civil wrong is a violation of the private rights of an individual in his capacity as an
individual e.g. refusing to pay a loan, or defaming another.
In civil law, proceedings are instituted in the courts by the plaintiff himself and the
burden of proving his claim rests on him.
The remedies (punishment) available in civil actions are:
i. Damages: this is a common law remedy designed to compensate the innocent
party by award of damages.
ii. Specific Performance: is the court’s order directing the defaulting party to
carry out his specific obligations, where damages are not an adequate remedy.
iii. Injunction: is a court order telling a person either to do a thing or refrain from
doing a particular act.
3. Procedural Law and Substantive Law
Procedural Law lays down the rules in detail for the guidance of the courts regulating
the manner in which the proceedings are required to be conducted in civil and criminal
cases.
Substantive Law consists of actual rules of law as opposed to adjective or procedural
law. It defines civil and criminal wrongs and provides remedies for each type of offence
or civil wrong.
4. International Law
International law may be further classified into Public International Law and Private
International Law.
Public International Law consists of those rules which regulate the relations between
states. It is based on treaties, conventions and rules of wars. The disputes between states
can be settled by the International Court of Justice. This court does not have any authority
to enforce its judgments.
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Private International Law is mainly concerned with determining which national law
governs a case in which there is a foreign element.
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PARLIAMENTARY LEGISLATION PROCESS
The Parliamentary legislative process goes through the following steps:
1. Drafting of a bill – done by legally qualified specialists attached to office of attorney
general.
2. First reading of the bill in Parliament after which it is printed and circulated to MPs to
prepare for debate.
3. Second reading – concerned MP explains the bill and other MPs are allowed to debate
after which a vote is taken; if the bill is sup[ported by the majority of members present, it
passes to the next stage
4. Committee stage – the committee considers the bill thoroughly clause by clause to
propose amendments, if any
5. Reporting stage – the Chairman of the Committee stage reports back to Parliament the
proposed amendments then the bill proceeds to third reading
6. Third reading – minor drafting of the bill is done, no debating is done.
7. President’s assent – a bill properly passed by Parliament does not become law until it is
assented to (signed by) the President which he may decline to sign with reasons. Once the
assenting is done the bill becomes law and is entered in the Statute book (book containing
written laws).
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26.3.1T13 THE STRUCTURE AND JURISDICTION OF COURTS IN KENYA
The diagram below illustrates the structure and hierarchy of the courts.
Section 162 of the Kenya Constitution defines Superior Courts as the Supreme Court, the Court
of Appeal, the High Court, The Industrial Court and the Land and Environment Court.
The subordinate courts (Sect.169)(1) are: (i) are the Magistrates Courts, the Kadhi’s courts, the
Court Martial, and any other court or local tribunal established by an Act of Parliament, other
than the ones contemplated in 162(2).
1. The Supreme Court
Consists of the Chief Justice (the President), the Deputy Chief Justice (the vice-president)
and five other judges. cl.163 (1). Martha Koome (CJ), Philomena Mwilu (DCJ), Isaac
Lenaola, Dr Smokin Wanjala, Njoki Ndung’u, Mohammed K. Ibrahim, William Ouko are
the members.
1. The Supreme Courts has:-
(a) Exclusive original jurisdiction to hear and determine disputes relating to the
elections to the office of President
(b) appellate jurisdiction to hear and determine appeals from:
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i) the Court of Appeal; and
ii) any other court or tribunal as prescribed by national legislation
2. 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.
2 Court of Appeal
Consists of not fewer than 12 (and maximum of 30) judges. The president of the Court of
Appeal is elected by the judges of the Court of Appeal from among themselves. Currently
it is Justice Daniel Musinga.
It has only appellate jurisdiction and it is not the trial court of first instance. It has
jurisdiction to hear appeals from -
(a) the High Court; and
(b) any other court or tribunal as prescribed by an Act of Parliament. While hearing an
appeal, may uphold the decision of the lower court, reverse the decision, substitute
another judgment, or order a new trial.
3 High Court
Headed by a Principal Judge, who shall be elected by the judges of the High Court from
among themselves.
The High Court shall have:
a) unlimited original jurisdiction in criminal and civil matters
b) jurisdiction to determine the question whether a right or fundamental freedom in the
Bill of Rights has been denied, violated, infringed or threatened.
c) jurisdiction to hear an appeal from a decision of a tribunal appointed to consider the
removal of a person from office.
d) jurisdiction to hear any question respecting the interpretation of the constitution e.g.
whether any law or anything said (or done) by authority of the constitution is
inconsistent with or in contravention of the Constitution
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e) supervisory jurisdiction over the subordinate courts and over any person, body or a
authority exercising a judicial function, but not over a Superior Court.
4 Resident Magistrate’s Court
Is established by section (3) of the Magistrate’s Courts Act. It may be presided by the
Chief magistrate, Principal Magistrate, Senior resident magistrate or resident magistrate
and has unlimited jurisdiction over cases arising anywhere in Kenya – restricted by the
amount of money involved in the dispute.
5 Court Martial
Court Martials are established under Section 84 of the Armed Forces Act. These are
military courts set up for disciplining soldiers within the armed forces. The court is
presided over by a senior Commissioned Officer and two other members who are also
soldiers. A judge advocate, appointed with the consent of the Attorney-General, is to
guide and advise the court on matters of law, but the final decision is made by the
members of the court.
6 Employment and Labour Relations Court
The Constitution has established the Industrial Court (established by the Trade Disputes
Act, 1964) at the same level as the High Court. It consists of a judge and four other
members appointed by the Cabinet Secretary of Labour.
The function of the Court is to decide issues concerning trade disputes which the Cabinet
Secretary may, with the consent of the parties concerned, refer to it whenever a trade
dispute arises. The dispute may also be referred to the Court by the parties concerned.
The decision becomes part of every contract of employment, binding the employer to
observe the recognized terms and conditions contained in the award mutually accepted by
the parties to the dispute.
7. Environment and Lands Court
The Constitution has established the Land and Environment Court at the same level as
the High Court. This deals with land and environment matters and appeals from all
tribunals dealing in land and environment matters.
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8. Kadhi’s Courts
Established by Section 65 of the Kenya Constitution Act. These courts have limited
jurisdiction involving matters relating to personal status, marriage, divorce and
inheritance if the parties to the dispute of this nature profess the Muslim religion. Appeals
from these courts go to the High Court. At the time of hearing appeals, the judge of the
High Court is assisted by the Chief Kadhi or two Kadhis.
The Chief Kadhi or kadhis are appointed by the Judicial Service Commission and must
profess the Muslim religion and possess such knowledge of the Muslim law applicable to
any sect or sects of Muslims.
9. Rent Tribunals
Rent tribunals were established by the Rent Restriction (Amendment) Act, 1966. The
function of such a tribunal is to determine the rents for certain statutory un-furnished
tenancies.
The tribunal is established by the Minister for Housing. It consists of a Chairman, Deputy
Chairman and two members appointed by the Cabinet Secretary. The Chairman and any
of his deputies shall be a barrister, a solicitor or an advocate of the High Court of not less
than 5 years’ standing.
10. Licensing Boards
Similar functions are performed by a number of licencing boards in Kenya, and here are a
few examples:
(1) The liquor Licencing Boards established under the Liquor Licencing Act
(2) The Trade Licencing board established under the Trade Licencing Act
(3) The Transport Licencing Board established under Traffic Act
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