LEGAL SYSTEMS & METHODS (LAW NOTES)

 INTRODUCTION TO LEGAL SYSTEMS AND LEGAL METHOD

What is the Essence of Legal Systems & Legal Methods?

The legal system of any country can be described as the set of rules of substance and procedure as well as the institutions relating to the governance of social behaviour and resolution of disputes which arise in the process. It also necessarily includes the underlined social values and attitudes which affect the operations of such values.

Legal methods on the other hand refer to the manner in which those who make, activate or operate the law use the legal system to arrive at specific legal consequences. This necessarily involves rules of interpretation and other legal tools used to arrive at the desired legal consequences.

Legal systems therefore deal with “what” and “why” of law while legal methods deal with “how” of law.

The Essence of the Legal System in the Society

Man is a social being. He is part and parcel of society which has its own structure and organisation. Society is primarily based on order which order is achieved and maintained through social rules. Man’s behaviour is closely controlled, either directly or indirectly through moral standards, religious doctrines, social edicts and customs as well as legal rules.

In today’s complex society, legal rules are especially significant and it is difficult to find any area of society which is completely free from legal control. There is therefore undeniable and manifest relationship between law and society and the individual members of society.

To a law student society is a conglomeration of people, institutions and other social phenomena in the midst of which law occupies a central place holding these social arrangements together in an orderly fashion.

Law is however only one part of the overall social structure as there are other social elements and forces. In addition to law, there are various and diverse social phenomena all of which form part of the entire social structure for example political institutions, economic and commercial institutions, religious institutions etcetera. These other institutions or social phenomena are however not completely free from legal control or influence.

Law plays an important role in the definition of all kinds of social relationships between individuals and also between groups.

In the early days law as we know today did not exist. The early man was self-sufficient in his wants. However as time went by need arose for specialisation in production of human necessaries and this in turn gave rise to social relationships such as trade and others for example emergency families and other units in the society. As a consequence there arose conflicts of interest and these necessitated the development of a system of social control for purposes of preserving the society itself.

As the social groups became more sophisticated and complex, there occurred increase in occupational specialisation and division of labour and as a consequence legal rules became even more sophisticated and complex. This is because just as society is dynamic so is the law. The law must always change in tandem with societal change if it is to stay relevant.

What is Law?

Although scholars do differ in their analysis of law, there is general consensus that a legal order must provide for authorisation and recognition of legitimate authority, provide means of resolving disputes and also mechanisms for facilitating interpersonal relationships including adaptation to change.

There is no definition of law which has achieved universal acceptability but different approaches have been developed and adopted in an attempt to explain the meaning and

functions of law. What such attempts mostly achieve is to define the characteristics of the law and also indicate the legal orientation of the person defining it.

Generally the orientations are either defined as positivism and naturalism.

 

1.3.1                 Legal Positivism

Legal positivism is a philosophy of law that emphasizes the conventional nature of law - that it is socially constructed. According to legal positivism, law is synonymous with positive norms, that is, norms made by the legislator or considered as common law or case law.

According to Austin, positive law is a series of both explicit and implicit commands from a higher authority. The law reflects the sovereign's wishes and is based on the sovereign's power. Backed by sanctions and punishment,

According to one Salmond, law is a body of principles recognized and applied by the state in the administration of justice.

According to another scholar called Holland law is the rules of external human action enforced by the sovereign political authority. Similarly, Austin defines law as a command of the sovereign that is backed by sanction.

Panton on the other hand opines that law consists of a body of rules which are seen to operate as binding rules in the community and by means of which sufficient compliance with the rules may be secured to enable the set of rules to be seen as binding.

Hart has defined law in terms of primary and secondary rules which govern the state and the conduct of people.

1.3.2                 Natural Law Theory

Naturalism or natural law theory is a philosophy of law that focuses on the laws of nature. This school of jurisprudence represents the belief that there are inherent laws that are common to all societies, whether or not they are written down or officially enacted. This school of thought tells us that law is rational and reasonable.

According to natural law legal theory, the authority of legal standards necessarily derives, at least in part, from considerations having to do with the moral merit of those standards. The

natural law is comprised of those precepts of the eternal law that govern the behaviour of beings possessing reason and free will.

There are a number of different kinds of natural law legal theories, differing from each other with respect to the role that morality plays in determining the authority of legal norms. Classical natural law theory such as the theory of Thomas Aquinas focuses on the overlap between natural law moral and legal theories. In contrast, the procedural naturalism of Lon

L. Fuller is a rejection of the conceptual naturalist idea that there are necessary substantive

universe is order

Divine law is concerned with those standards that must be satisfied by

The first precept of the natural law, according to Aquinas, is the somewhat vacuous imperative to do good and avoid evil. Here it is worth noting that Aquinas holds a natural law theory of morality: what is good and evil, according to Aquinas, is derived from the rational nature of human beings. Good and evil are thus both objective and universal.

In his 1958 debate with Hart and more fully in The Morality of Law (1964), Fuller sought to steer a middle course between traditional natural law theory and legal positivism. Like most legal academics of his day, Fuller rejected traditional religious forms of natural law theory, which view human law as rooted in a rationally knowable and universally binding "higher law" that derives from God. He also rejected the idea, found in some traditional natural law theorists and famously endorsed by Martin Luther King, Jr. in his Letter from Birmingham Jail, that an unjust law is not a law. On the other hand, Fuller also denied the core claim of legal positivism that there is no necessary connection between law and morality. According to Fuller, certain moral standards, which he calls "principles of legality," are built into the very concept of law, so that nothing counts as genuine law that fails to meet these standards. In virtue of these principles of legality, there is an inner morality to the law that imposes a

minimal morality of fairness. Some laws, he admits, may be so wicked or unjust that they should not be obeyed. But even in these cases, he argues, there are positive features of the law that impose a defensible moral duty to obey them. 

that does not wildly diverge from their obvious or apparent meaning.[3] These are Fuller's "principles of legality." Together, he argues, they guarantee that all law will embody certain moral standards of respect, fairness, and predictability that constitute important aspects of the rule of law.

Functions of Law in Society

Structuring and controlling public power - Constitution, admin law etc. do these functions

 

(i)                  Facilitating and effectuating private relationships: family law etc.;

(ii)                Resolving social conflicts;

(iii)                Maintains social control;

(iv)               Protects public order;

(v)                 To resolve disputes;

(vi)               Protects certainty of systems;

(vii)             Facilitates orderly change;

(viii)           Brings out justice in society;

(ix)               Outlines what the government can do and what it cannot do.

 

Classification of Law

1.5.1                 Private and Public law

Public law consists of those aspects of law concerned with the regulation of the relationship between the state and persons/citizens. They include constitutional law and Administrative law.

Private law on the other hand is primarily concerned with the regulation of relationships between persons as in people inter se for example law of contract etcetera

1.5.2                 Criminal versus Civil Law

Criminal law is concerned with the definition, prevention, detection and punishment of crime for example criminal law as codified in the penal code. With the exception of where the court allows private prosecution, a criminal case is initiated, not by the injured party, but the state. Thus, criminal matter will be titled Republic v. X (The Accused).

In criminal litigation, the burden of proof is always on the state. The state must prove that the defendant is guilty. The defendant is assumed to be innocent and needs to prove nothing. If the There are some exceptions however. (Thus, if defendant wishes to claim that he/she is insane, and therefore not guilty, he/she bears the burden of proving his/her insanity. Other exceptions include defendants who claim self-defence or duress). In criminal litigation, the state must also prove that the defendant satisfied each element of the statutory definition of the crime, and the defendant's participation, “beyond a reasonable doubt.”

Civil law, on the other hand, is primarily concerned with the regulation of relationship between persons. The matter is initiated by the individual who claims injury/violation of his right. Civil matters are referred to as X (plaintiff/claimant v. Y (Defendant/Respondent).

In civil litigation, the burden of proof is initially on the plaintiff. However, there are a number of technical situations in which the burden shifts to the defendant. For example, when the plaintiff has made a prima facie case, the burden shifts to the defendant to refute or rebut the plaintiff's evidence.

In civil litigation, the plaintiff wins if the preponderance of the evidence favours the plaintiff. For example, if the judge believes that there is more than a 50% probability that the defendant was negligent in causing the plaintiff's injury, the plaintiff wins. This is a very low standard, compared to criminal law.

1.5.3                 Substantive versus Procedural Law

Substantive law is concerned with the definition of legal rights, obligations and remedies for example land law. Procedural or Adjectival law, on the other hand is concerned with the procedure or steps to be followed in the enforcement of rights and obligations defined by

substantive law. For example law of evidence and law of procedure. It comprises the set of rules that govern the proceedings of the court in criminal lawsuits as well as civil and administrative proceedings. The court needs to conform to the standards setup by procedural law, while during the proceedings. These rules ensure fair practice and consistency in the "due process".

Whereas substantive law deals with the legal relationship between people or the people and the state by defining the rights and duties of the people, procedural law lays down the rules with the help of which they are enforced.

1.5.4                 Statutory and Non-Statutory Laws

There are two basic forms of the law: statutory law and non-statutory law (or common law). Statutory law is the formal written law of a country, written by that country’s legislative authority, and is ratified by the highest executive in the government, before being published. Typically, statutes command, prohibit, or declare policy. Statutes are sometimes referred to as legislation or "black letter” law.

In non-statutory forms of the law, or common law legal systems, judges have the authority and duty to decide what the law is when there is no other authoritative statement of the law. Non-statutory law forms a major part of the legal systems of those countries of the world that have at one time been territories or colonies of the British Empire (with the exception of Malta, Scotland and Quebec). Common law is notable for its inclusion of extensive non- statutory law that reflects precedent derived from centuries of judgments by working jurists.

1.5.5                 Municipal and International Law

Municipal law comprises of domestic laws applicable within a given state. International law regulates legal relations at international level.

a)       Monism and Dualism

 

Under the Vienna Convention on the Law of Treaties, states are committed towards respecting treaties that they make and to determine their application by their own legislative, executive and judicial institutions (art 28 of the Vienna Convention).

Yet the Convention does not deal with the way the States have to integrate international law into their internal/municipal systems. This matter is left to be determined upon by the States themselves. This has necessarily given States the leverage to determine how to go about it.

In regards to application of international law in national systems, states are considered to either be monist or dualists. In Monist States, international and national legal systems are unified into one body of law applied by the national courts. Although there is a clear division between internal and international laws, there is no need for translating the international law into a national law in these systems.

In dualist states, there is a difference between internal and international law. Unlike monism, there is a need for the translation of international law into national law. Unless the translation takes place, the international law is not accepted. Moreover, an international treaty is not accepted in dualist state if it is not adapted as a national law.

b)      Distinction between International Law and Municipal Law

 

There are substantive differences between international law and municipal (or domestic) law. Understanding the uniqueness of international law in relation to municipal law helps one to better understand the nature and process of international law. These may be:

i)                    Municipal law regulates relations within a country (intra-state), while international law regulates relations between countries (inter-state);

ii)                  Regarding the processes used to make law, municipal law are made by national organs such as parliament or decisions of courts. In case of international law, treaty-making is the principal role although customary international law may be deemed from states’ practice.

iii)                In relation to the obligations on parties, international law (save for international criminal law) is about state obligation while municipal law largely deal with individuals’ rights and obligations under state/national law.

iv)                 International law is generally enforced through international mechanisms while municipal laws are generally enforced through national mechanisms like local courts and tribunals. The principal feature of municipal law is the existence of a legislature and a court system that can settle legal disputes and enforce the law.

At the international level, however, there is no legislature in existence and it is by way of agreements between countries (treaties) that international law is made.

v)                   The lack of an enforcement mechanism akin to a police force at the international level impedes coercive enforcement. The court system at the international level is one that relies on the acquiescence of the countries to both its jurisdiction and to carrying out the decisions of the court. The court system is well-established at the international level and respected but it lacks the ability to compel a country to come before it, unlike courts in a municipal system which can require a government, company or individual to appear before it.

vi)                 The role of politics in international law influences the character of international law profoundly and is more likely to reflect the political interests of the countries than might be the case at the municipal level. International law is made by way of political agreements (treaties) and will be supported or ignored according to the political interests of a country.

vii)               Municipal law is hierarchical or vertical - the legislature is in a position of supremacy and enacts binding legislation. International law is horizontal - all states are sovereign and equal.

The distinction between the branches have nonetheless narrowed. Currently, the sphere of international law has expanded to regulation of matters that were once thought to be the preserve of municipal law. For example, how a state treats its citizens has become a subject of international law through the operation of international human rights law. International criminal law also deal with individual’s responsibility rather than the states’.

Session 2

THE MAJOR LEGAL SYSTEMS OF THE WORLD

Introduction

Most nations today follow one of two major legal traditions: common law or civil law. The common law tradition emerged in England during the middle Ages and was applied within British colonies across continents. The civil law tradition developed in continental Europe at the same time and was applied in the colonies of European imperial powers such as Spain and Portugal. Civil law was also adopted in the nineteenth and twentieth centuries by countries formerly possessing distinctive legal traditions, such as Russia and Japan, which sought to reform their legal systems in order to gain economic and political power comparable to that of Western European nation-states.

The Common Law and Civil Law Legal Systems

2.2.1                 Common Law System

Common law traces its roots to the medieval idea that the law as handed down from the king's courts represented the common custom of the people. It evolved chiefly from three English Crown courts (common law courts) of the twelfth and thirteenth centuries: the Exchequer, the King's Bench, and the Common Pleas.

Early common-law procedure was governed by a complex system of pleading, under which only the offenses specified in authorized writs could be litigated. Complainants were required to satisfy all the specifications of a writ before they were allowed access to a common-law court. This system was replaced in England in mid-1800s.

The court of equity, which were instituted to provide relief to litigants in cases where common-law relief was unavailable, later merged with common-law courts to constitute the English legal system. This consolidation of jurisdiction over most legal disputes into several courts was the framework for the modern Anglo-American judicial system.

Notable of the common-law system, courts base their decisions on prior judicial pronouncements rather than on legislative enactments. Where a statute governs the dispute, judicial interpretation of that statute determines how the law applies. Common-law judges

rely on their predecessors' decisions of actual controversies, rather than on abstract codes or texts, to guide them in applying the law. Common-law judges find the grounds for their decisions in law reports, which contain decisions of past controversies. Under the doctrine of Stare Decisis, common-law judges are obliged to adhere to previously decided cases, or precedents, where the facts are substantially the same. A court's decision is binding authority for similar cases decided by the same court or by lower courts within the same jurisdiction. The decision is not binding on courts of higher rank within that jurisdiction or in other jurisdictions, but it may be considered as persuasive authority.

Because common-law decisions deal with everyday situations as they occur, social changes, inventions, and discoveries make it necessary for judges sometimes to look outside reported decisions for guidance in a case of first impression (previously undetermined legal issue). The common-law system allows judges to look to other jurisdictions or to draw upon past or present judicial experience for analogies to help in making a decision. This flexibility allows common law to deal with changes that lead to unanticipated controversies. At the same time, stare decisis provides certainty, uniformity, and predictability and makes for a stable legal environment.

arguments and evidence. Both parties present their cases before a neutral fact finder, either a judge or a jury. The judge or jury evaluates the evidence, applies the appropriate law to the facts, and renders a judgment in favour of one of the parties. Following the decision, either party may appeal the decision to a higher court. Appellate courts in a common-law system may review only findings of law, not determinations of fact.

Thus, common law systems place great weight on court decisions, which are considered ‘law’ with the same force of law as statutes. Common law courts have had the authority to make law where no legislative statute exists, and statutes mean what courts interpret them to mean.

2.2.2                 Civil Law Systems

Also referred to as the Roman-Germanic Law or Continental European System, this is a legal system inspired by Roman and Germanic law and whose the primary feature is that laws are written into a collection, codified, and not (as in common law) interpreted by judges.

The principle of civil law is to provide all citizens with an accessible and written collection of the laws which apply to them and which judges must follow. It is the most widespread system of law in the world, in force in various forms in about 150 countries.

Conceptually, it is the group of legal ideas and systems ultimately derived from the Code of Justinian, but heavily overlaid by Germanic, ecclesiastical, feudal, and local practices,¹ as well as doctrinal strains such as natural law, codification, and legislative positivism.

Materially, civil law proceeds from abstractions and formulated general principles and distinguishes substantive rules from procedural rules. It holds legislation as the primary source of law, and the court system is usually inquisitorial, unbound by precedent, and composed of specially trained judicial officers with a limited authority to interpret law.

Juries separate from the judges are not used, although in some cases, volunteer lay judges participate along with legally trained career judges.

2.2.3                 Comparison between the Common Law System and the Civil Law Legal System

The difference between civil law and common law lies not just in the mere fact of codification, but in the methodological approach to codes and statutes. In civil law countries, legislation is seen as the primary source of law. By default, courts thus base their judgments on the provisions of codes and statutes, from which solutions in particular cases are to be derived. Courts thus have to reason extensively on the basis of general rules and principles of the code, often drawing analogies from statutory provisions to fill lacunae and to achieve coherence. By contrast, in the common law system, cases are the primary source of law, while statutes are only seen as incursions into the common law and thus interpreted narrowly.

 

¹ Charles Arnold Baker, The Companion to British History, s. v. "Civilian" (London: Routledge, 2001), 308.

With regard to precedents, there is a very strong reliance to them in the common law

In civil law systems, statutes set the general principles of the law expressly by stating them; the courts then make their own interpretations of those general principles afresh in each case to arrive at conclusions about how those general principles translate into details.

In common law systems, the approach is the opposite: the legislation sets the details, from which the general principles emerge, much like a computer programme. The idea is that those who are making the statutes, rather than the courts, should be the ones who have the power to decide how the details work.

The civil law can thus be described as a top-down approach to principles, whereas the common law can be described as a bottom up approach. Both systems ‘value’ principles equally, but arrive at them, and deal with the interface between principle and detail, in very different ways.

Thus, common law and civil law systems may be distinguished in light of some key features. System Features. Of course, it must be noted that the systems may not exhibit all of the features in question, but the tendency is that most of the features will be seen to operate for a particular legal system to fall under that category.

The areas of distinction include:

 

1)              Common law systems trace their history to England, while civil law systems trace their history to Roman law and the Napoleonic Code.

2)             

Civil laws are altered immediately the legislature

 

The major sources of law in the common law system are customs and practice while

Regarding continuity of the legal system, whereas common law is evolutionary, civil law systems are revolutionary.

)

4)

The trial format in common law is accusatorial and confrontational, while in civil

 

The systems may also be distinguished on the basis of judicial role in law-making.

5)

 

6) The role of legal scholarship in the common law system is usually secondary and peripheral, while in a civil law system the use of legal scholarship is extensive and influential.

Judicial review of statutes and of executive actions is largely incorporated in common

 

At common law, the major decision-making stage is the trial stage, while at civil law,

7)

8)

9)

10)

11)    The style of legal reasoning in common law is inductive while in civil law, it is usually deductive.

12)          

The use of argument and debate during trial, extensive and fundamental in common

Trial emphasis in common law is usually on procedural correctness, whereas the civil law system normally emphasises on factual certainty.

13)           Evidentiary rules in common law is formal and restrictive. The exclusionary rule is usually employed in common law. In civil law, usually all relevant evidence considered.

14)           With respect to the role of lawyers during trial, it is primary in common law system, while in civil law system the lawyers only play a secondary role.

15)           The common law lawyer’s function is to debate and oppose while in civil law, the lawyer’s function is to advise and inform.

16)           The judge’s role during trial is that of a referee/umpire in common law while in civil law, he/she is a director/examiner.

17)           The common law judges are usually political appointees from practicing lawyers and other judicial ranks. Their status is of political VIPs. In civil law, judges are appointed

by merit advancement from judicial specialists. Their status is of mid-level civil servants.

18)           Some common law jurisdiction allow citizen’s participation in trial by employing juries (grand & petit). In civil law, decisions are usually by members of judicial panels.

19)           While appeals in common law normally focus on procedural propriety, in civil law, appeals focus both on procedural and substantive propriety.

20)           The structure of the common law courts is usually unified while civil law systems have diffused court structures (with multiple specialized courts).

Other Major Legal Systems

2.3.1                 Socialist Legal Systems

Socialist system mostly denotes a general type of legal system used in the communist and former communist states. It is based on the civil law system, with major modifications and additions from Marxist-Leninist ideology.

There is controversy as to whether socialist law ever constituted a separate legal system or not,² but prior to the end of the Cold War, socialist law ranked among the major legal systems of the world by virtue of the predominant ideology in the communist states.

Socialist law is similar to the civil law system but with the following characterises:

 

(i)             A greatly increased public law sector and decreased private law sector.³

 

(ii)           At the early stages of existence of each socialist state, the aim was the partial or total expulsion of the former ruling classes from the public life (however, in all socialist states this policy gradually changed into the policy of ‘one socialist nation without classes’);

(iii)         The system directly discouraged diversity of political views;   

 

² Quigley, J. "Socialist Law and the Civil Law Tradition". The American Journal of Comparative Law

37(1989) (4): 781–808.

³ H. Patrick Glenn, Legal traditions of the world: sustainable diversity in law (Oxford University Press, 2007) 331

(iv)          The ruling Communist party members/leaders are usually subject to prosecution through party committees in first place;

(v)            Abolition of private property is usually considered as a primary goal of socialism, if not its defining characteristic. Thus, near total collectivization and nationalization of property is encouraged;

(vi)          There is low respect for individuals’ privacy and extensive control over private life by the ruling party;

(vii)        There is low respect for intellectual property. Such knowledge and culture is considered a right for human kind and not a privilege as in the free market economies;

(viii)      There are extensive social warrants of the state (the rights to a job, free education, free healthcare, retirement at 60 for men and 55 for women, maternity leave, free disability benefits and sick leave compensation, and subsidies to multi-children families) in return for a high degree of social mobilization.

(ix)          The judicial process lacks adversary character; public prosecution is considered as ‘provider of justice.’

(x)            While civil law systems have traditionally put great pains in defining the notion of private property, how it may be acquired, transferred, or lost, socialist law systems provide for most property to be owned by the state or by agricultural co-operatives, and having special courts and laws for state enterprises.

(xi)          Although the command economy approach of the communist states meant that property could not be owned, the Soviet Union always had a Civil Code, courts that interpreted this Civil Code, and a civil law approach to legal reasoning (thus, both legal process and legal reasoning were largely analogous to the French or German civil code system).

Legal systems in all socialist states preserved formal criteria of the Romano-Germanic civil law; for this reason, law theorists in post-socialist states usually consider the Socialist law as a particular case of the Romano-Germanic civil law. Cases of development of common law into Socialist law are unknown because of incompatibility of basic principles of these two

systems (common law presumes influential rule-making role of courts while courts in socialist states play a dependent role)

2.3.2                 Religious Legal Systems

Religious law refers to the notion of a religious system or document being used as a legal source. The main kinds of religious law are Sharia in Islam, Halakha in Judaism, and canon law in some Christian groups.

The methodologies used in religious laws greatly vary. The use of Jewish Halakha for public law, for example, has a static and unalterable quality, precluding amendment through legislative acts of government or development through judicial precedent. On the other hand, it may be observed that Christian canon law is more similar to civil law in its use of civil codes while Islamic Sharia law (and Fiqh jurisprudence) is usually based on legal precedent and reasoning by analogy (Qiyas), and is thus considered similar to common law. During the Islamic Golden Age, classical Islamic law may have had an influence on the development of common law and several civil law institutions.

In some cases the religious edicts are intended purely as individual moral guidance. Canon law, for example, is not a divine law, properly speaking, because it is not found in revelation. Instead, it is seen as human law inspired by the word of God and applying the demands of that revelation to the actual situation of the church. Canon law regulates the internal ordering of the Roman Catholic Church, the Eastern Orthodox Church and the Anglican Communion. Canon law is amended and adapted by the legislative authority of the church, such as councils of bishops, single bishops for their respective sees, the Pope for the entire Catholic Church, and the British Parliament for the Church of England.

In other cases religious laws are intended and may be used as the basis for a country's legal system. The latter was particularly common during the middle Ages and today in countries adopting the Islamic legal system where Sharia (Islamic law) and Fiqh (Islamic jurisprudence) is the most widely used religious law and is one of the three most common legal systems in the world alongside common law and civil law. It is the most protected divine law, because, the majority of the rulings of Sharia law are based on the Qur'an and Sunnah, while a small fraction of its rulings are based on the Ulema (jurists) who used the

methods of Ijma (consensus), Qiyas (analogical deduction),  Ijtihad (research) and  Urf

(common practice) to derive Fatwā (legal opinions).

 

In Islamic systems, Ulema may be required to qualify for an Ijazah (legal doctorate) at a

Madrasah (school) before they are able to issue Fatwā.

 

Sharia law governs a number of Islamic countries, including Saudi Arabia, Pakistan and Iran, though most countries use Sharia law only as a supplement to national law. It can relate to all aspects of civil law, including property rights, contracts or public law.

Plural and Hybrid Systems

2.4.1                 Plural Systems

Legal pluralism is the existence of multiple legal systems within one geographic area. Plural legal systems are particularly prevalent in former colonies, where the law of a former colonial authority may exist alongside more traditional legal systems. When these systems developed, the idea was that certain issues (e.g., criminal sanctions) would be covered by colonial law, while other issues (e.g., family and marriage) would be covered by traditional law. Over time, these distinctions tended to break down and individuals would choose to bring their legal claims under the system that they thought would offer them the best advantage.

Legal pluralism also occurs when different laws govern different groups within a country. For example, in India, Kenya and Tanzania, there are special Islamic courts that address concerns in Muslim communities by following Islamic law principles. Secular courts deal with the issues of other communities.

It is important to note that modern Western legal systems can also be pluralistic. It is, thus, misleading to discuss legal pluralism only in relation to non-Western legal systems.

Legal pluralism also exists to an extent in societies where the legal systems of the indigenous population have been given some recognition. In Australia, for example, in Mabo v. Queensland (No 2), the decision gave recognition to native title and thus elements of traditional Aboriginal law.4 Elements of traditional Aboriginal criminal law have also been

⁴ (1992) 175 CLR 1.

recognised, especially in sentencing. This has, in effect, set up two parallel sentencing systems.

2.4.2                 Hybrid Systems

Hybrid systems arise where there is a mixture of notions form different legal systems coexisting with each other at the same time. The most prominent example of a hybrid legal system is the Indian legal system. India follows a mixture of civil, common law and customary or religious law. Separate personal law codes apply to Muslims, Christians, and Hindus. Decisions by the Supreme Court of India and High Courts are binding on the lower courts. Further, most of the laws are statutory and it also has a constitution which signifies the civil nature of law in India.

Hybrid legal systems are also found in n South Africa and Greece where the systems are based on a mixture of Civil law and common law. US law may also be viewed as hybrid legal systems to the extent that there is a mixture of civil law, common and religious laws in the system.

Session 3

MATERIAL SOURCES OF LAW IN KENYA

Introduction

The Judicature Act and the Constitution supply a good basis for the determination of where laws in Kenya sourced. The Judicature Act, Cap 8 is guides the courts in Kenya on the law to apply. It provides that in section 3:

(1) The jurisdiction of the High Court, the Court of Appeal and of all subordinate courts shall be exercised in conformity with: -

a)  The Constitution;

b)  Subject thereto, all other written laws, including the Acts of Parliament of the United Kingdom cited in Part I of the Schedule to this Act, modified in accordance with Part II of that Schedule;

c)  subject thereto and so far as those written laws do not extend or apply, the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the 12th August, 1897, and the procedure and practice observed in courts of justice in England at that date;

But the common law, doctrines of equity and statutes of general application shall apply so far only as the circumstances of Kenya and its inhabitants permit and subject to such qualifications as those circumstances may render necessary.

(2)    The High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law,

and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay.

This section creates a hierarchy of law in the following order:

 

(i)           The Constitution;

(ii)         Kenyan Legislations and some English Acts;

(iii)       Common law, the doctrines of equity and the statutes of general application in force in England on the 12^th August, 1897; and

(iv)       African Customary law

 

This section may be interpreted to closely relate to the new Constitution which may be seen to also supply sources from which the law of Kenya would be tapped from the courts. The Constitution identifies the sources of law to include:

(i)        The Constitution (in article 2);

(ii)      Legislation (article 94(5));

(iii)    Customary law (art 2(4);

(iv)     General rules of international law (art 2(5); and

(v)       Treaties or conventions ratified by Kenya (art 2(6).

But the problem is that the provisions do not tally. Thus, the judicature Act may need to be amended to accord with the new constitutional structure of laws e.g. as regards international law.

The Constitution

The highest source of law in Kenya the Constitution. Under article 2 (comparable to section 3 of the repealed Constitution), it is provided that the Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government.

The Constitution provides that no person may claim or exercise State authority except as authorised under the Constitution.

Thus in old English law, a writ of quo warranto (by what authority in Latin) would be issued to challenge a wrongful exercise of authority. This writ is still in Use in USA and in India. In the United States, the Supreme Court described it in Johnson v. Manhattan Railway Co. (1933) p. 502 as a writ “addressed to preventing a continued exercise of authority unlawfully asserted,” brought by the state or federal government against any person alleged to “exercise an office or authority without lawful right”.

In India for example, in Anna Mathew v. N. Kannadasan (2008) a writ was filed under Article 226 of the Constitution of India for the issuance of Writ of Quo Warranto against the 1^st respondent requiring him to show his authority to hold the office of President of the Tamil Nadu State Consumer Disputes Redressal Commission and to consequently declare his appointment by the 2nd respondent illegal and unconstitutional.

Under article 2 of the 2010 Constitution, the validity or legality of the Constitution is not subject to challenge by or before any court or other State organ. However in a curious ruling, the High Court in the case of Jesse Kamau & 25 others v Attorney General [2010] eKLR held under the repealed Constitution of Kenya that:

Financial maintenance and support of the kadhi courts from public coffers amounts to segregation, is sectarian, discriminatory and unjust against the applicants and others... it amounts to separate development of one religion and religious practice contrary to the principle of separation of state and religion.5

This case would never stand under the new Constitution.

 

It has further been provided in article 2 that any law, including customary law that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of the Constitution is invalid. Thus, in Godfrey Ngotho Mutiso v. Republic [2010] eKLR, section 204 of the Penal Code was declared to be unconstitutional by the Court of Appeal. The Court said:

We note that while the Constitution itself recognizes the death penalty as being lawful, it does not say anywhere that when a conviction for murder is recorded, only the death sentence shall be imposed. We declare Section 204 shall, to the extent it provides that the death penalty is the only sentence in respect of the crime of murder is inconsistent with the letter and spirit of the Constitution, which as we have said, makes no such mandatory provision.

In the Muruatetu Case at the Supreme Court of Kenya,6 the petitioners and others were arraigned before the High Court for the offence of murder. Upon their conviction, they were sentenced to death as decreed by section 204 of the Penal Code. Their appeal to the Court of Appeal against both that conviction and sentence was dismissed. Upon further appeal, the Supreme Court found that section 204 of the Penal Code that provided that “any person convicted of murder shall be sentenced to death”, was unconstitutional. The Supreme Court held that the mandatory nature of the death sentence as provided for under section 204 of the Penal Code deprived the Court of the use of judicial discretion in a matter of life and death. The Court stated that such law could only be regarded as harsh, unjust and unfair. The mandatory nature of the provision deprived the Courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases. The Court went on to order that the judgment urgently be placed before the Speakers of the National Assembly and the

 

 

⁵ Jesse Kamau & 25 Others v. Attorney General, High Court Nairobi Miscellaneous Civil Application 890 of 2004 [2010] eKLR

⁶ Francis Karioko Muruatetu & another v Republic [2017] eKLR

In Hamdardda Wakhama vs. Union of India (AIR 1960 at 554) where the Court stated:

 

…when an enactment is impugned on the ground that it is ultra vires and unconstitutional what has to be ascertained is the true character of the legislation and for that purpose regard must be had to the enactment as a whole to its objects, purpose and true intention and the scope and effect of its provisions or what they are directed against and what they aim at.

Written Laws

3.3.1                 Acts of the Kenyan Parliament

Under article 94(1), the legislative authority of the Republic is derived from the people and, at the national level, is vested in and exercised by Parliament.

Moreover, no person or body, other than Parliament, has the power to make law unless the Constitution authorises it or under authority given under legislation (94(5)).

3.3.2                 Delegated Legislation

An Act of Parliament, or legislation of a county, may confer on any State organ, State officer or person the authority to make provision having the force of law in Kenya.

For this to be so, the Act has to expressly specify the purpose and objectives for which that authority is conferred, the limits of the authority, the nature and scope of the law that may be made, and the principles and standards applicable to the law made under the authority.

3.3.3                 Acts of Foreign Legislative Bodies

a)       English Legislation

 

Under Part I of the Schedule to the Judicature Act Cap 8 Laws of Kenya, the following British Statutes are applicable in Kenya;

·         Admiralty Offences (Colonial) Act of 1849;

·         The Evidence Act (Sections 7 and 11 thereof)

·         Foreign Tribunals Evidence Act of 1856

·         Evidence by Commission Act of 1859

·         British Law Ascertainment Act 1859

·         Admiralty Offences (Colonial) Act of 1860

·         Foreign Law Ascertainment Act of 1861

·         Conveyancing (Scotland) Act of 1874 specifically S. 51 thereof

·         Evidence by commission Act of 1885.

 

Under Part II of Schedule to the Judicature Act the President shall replace the Governor and a Magistrate holding a subordinate Court of the 1^st Class shall replace a Magistrate of the Justice of Peace.

The Judicature Act also identifies Statutes of General Application as at 12^th August 1897 as sources of law in Kenya

This is contained in Section 3 of the Interpretation and General Provisions Act Cap 2 of the Laws of Kenya. The expression “Statutes of General Application” is not specifically defined in the Judicature Act, Cap 2 or in any other piece of legislation. However, Kenya Courts have over the years accepted several UK Statutes as statutes of general application and applied them in determining certain cases.

Three basic criteria must be satisfied in order for a UK Act to be received and applied as a statute of general application:

(i)           It must have been enforced in the UK on the 12^th day of August 1897;

(ii)         It must have been applicable generally in the UK as at that date i.e. it must not have been a statute applicable only to a section of the UK or only to a section of the population;

(iii)       The Statute must be suitable for the circumstances of Kenya and the inhabitants.

 

One Professor Allot in an article entitled “New Essays in African Law” has outlined a number of factors to be considered before UK Legislation can qualify as a statute of general application. These are:

(i)                       The statute must be a government Act of the English legislature as distinguished from a local or private Act;

(ii)                     The statute must have been in force in England at the specified reception date;

 

(iii)                   The statute must be suitable for general application outside England;

 

(iv)                   The Courts of the particular country concerned must rule on it;

(v)                     When there is a local enactment which is inconsistent with the English statute then the local legislation prevails.

Some of the statutes of general application applied in Kenya include:

 

·                Married Women’s Property Act of 1882 (see case of I v I: 1971 case reported in EA law reports page 278);

·                Infants Relief Act of 1874.

 

b)      Indian Legislation

 

There are some pieces of Indian legislation which were imported into Kenya by the British Colonial Authorities, for instance, the Indian Transfer of Properties Act (ITPA) was for a long time used to provide substantive law under various procedural land legislation until it was repealed by the comprehensive land legislation of 2012.

Common Law

Common-law courts base their decisions on prior judicial pronouncements rather than on legislative enactments. Common-law judges rely on their predecessors' decisions of actual controversies, rather than on abstract codes or texts, to guide them in applying the law.

Under the doctrine of Stare Decisis, common-law judges are obliged to adhere to previously decided cases, or precedents, where the facts are substantially the same.

A court's decision is binding authority for similar cases decided by the same court or by lower courts within the same jurisdiction. The decision is not binding on courts of higher rank within that jurisdiction or in other jurisdictions, but it may be considered as persuasive authority.

Because common-law decisions deal with everyday situations as they occur, social changes, inventions, and discoveries make it necessary for judges sometimes to look outside reported decisions for guidance in a case of first impression (previously undetermined legal issue). The common-law system allows judges to look to other jurisdictions or to draw upon past or present judicial experience for analogies to help in making a decision. This flexibility allows common law to deal with changes that lead to unanticipated controversies. At the same time,

stare decisis provides certainty, uniformity, and predictability and makes for a stable legal environment.

Doctrines of Equity

Equity is the name given to the set of legal principles, in jurisdictions following the English common law tradition that supplement strict rules of law where their application would operate harshly.

Equity has an ordinary meaning and a technical meaning. In the ordinary sense, equity means fairness, justice, morality, fair play, equality etc. In this sense, we are talking about doing good or doing what is morally right. It is regarded as a body of rules that is an appendage to the general rules of law.

The Constitution takes this into account, for example in article 10 on National Values when it adopts the values of human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised and protects the right to equality and non-discrimination in article 27. In article 159, it provides that in exercising judicial authority, the courts and tribunals shall be guided by the following principles (a) justice shall be done to all, irrespective of status; (b) justice shall not be delayed.

In a legal sense, equity it is the branch of the law which, before the Judicature Act of 1873 came into force, was applied and administered by the Court of Chancery. Equity is commonly said to ‘mitigate the rigor of common law,’ allowing courts to use their discretion and apply justice in accordance with natural law. In practice, modern equity is limited by substantive and procedural rules, and English legal writers tend to focus on technical aspects of equity.

A historical criticism of equity as it developed was that it had no fixed rules of its own, with the Lord Chancellor occasionally judging in the main according to his own conscience. The rules of equity later lost much of their flexibility, and from the 17^th century onwards equity was rapidly consolidated into a system of precedents much like its common-law cousin.

Customary Law

During the colonial era, the British applied a dual system of law: in areas under “direct rule” English law applied while in areas under “indirect rule” customary or traditional laws were allowed to continue to apply to native populations under the supervision of the British. English law applied in all areas to people of English descent and to Africans who “opted out” of customary law.

In addition, serious offenses against the state, or criminal offenses, were generally dealt with under English law.

The Common Law system also recognised unwritten rules and norms as part of the law (as opposed to civil law systems that generally require law to be written).

Against this historical backdrop, today, customary law is increasingly being treated as part of the common law. The Constitutions of some countries actually recognise this. Sierra Leone, for example, explicitly states that customary laws are part of the common law of the country.

In Kenya, the Judicature Act recognises customary law as part of the Kenyan law.

 

The discretion of the court to apply customary law is subject to the proviso that customary law cannot be applied where it is contrary to written law or is contrary to public policy or natural justice.

For customary law to be applied, the following conditions should be met:

 

(i)           One or more of the parties must be subject to it or affected by it,

 

(ii)         It should not be inconsistent with any written law, and

 

(iii)       It should not be repugnant to justice and morality.

 

But there are cases where statutes recognise the operations of customary law above the express provisions of statutory law. The Law of Succession Act, Cap 160 for example, provides in section 33 that:

[Notwithstanding the provisions of that part] the law applicable to the distribution on intestacy of [some] categories of property ... shall be the law or custom applicable to the deceased's community or tribe, as the case may be.

Now, under the Kenyan Constitution, article 11 has given more impetus to the operation of customary law by recognising culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation and enjoins the State to promote all forms of national and cultural expression.

In Monica Jesang Katam v Jackson Chepkwony & Another [2011], Justice J.B. Ojwang’ (Now a supreme court Judge but) then at the High Court affirmed the right of Inheritance in woman to woman marriage as acceptable law in Kenya under our customs.

Monica Jesang had claimed the right of inheritance by affirming that she was a beneficiary of the estate of Cherotich Kimong’ony Kibserea (deceased) by virtue of having been married to the deceased in a woman to woman marriage under the Nandi tradition. The High Court at Mombasa in deciding the case upheld customary law by observing that contemporary social systems for instance, in the shape of current practices in the domain of family among the Nandi were to be regarded as aspects of culture which would rightly claim protection under Article 11 (1) of the Constitution of Kenya 2010. The Constitution under the Article recognized culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and the nation.

However, it is provided in article 2 of the 2010 Constitution that customary law that is inconsistent with this Constitution is void (art 2). Furthermore, Article 159 enjoins the courts, in exercising judicial authority, to ensure that traditional dispute resolution mechanisms shall not be used in a way that—

(i)             Contravenes the Bill of Rights;

 

(ii)           Is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; or

(iii)         Is inconsistent with this Constitution or any written law.

International Law

A source of law that is not mentioned in the Judicature Act is international law. However, the Constitution provides in article 2 that the general rules of international law shall form part of the law of Kenya. Moreover, any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution, according to the Constitution.

A question that would arise in this regard is: at what hierarchical position does international law stand in the hierarchy of law, considering that it is not included in the Judicature Act, Cap 8? It may be possible to settle this through an amendment to that Act to take into consideration this issue alongside the issue of the reception date in the Act that it might seem to have been passed by the times today.

Three suggestions may be made with respect to the place of international law in the hierarchy of law:

(i)             Since the Constitution Since international laws (especially treaties protecting human rights) deal with the same things as the Constitution in the subject, international law should be given a position at the apex with the Constitution so that any law made by the legislature that violates international law would be unconstitutional;

(ii)           Also stipulates for enforcement of principles created under it through diverse means, including legislation by Parliament, international law should be viewed as one such means intended to safeguard constitutional guarantees and should therefore be placed at the second tier in the hierarchy alongside Acts of Parliament; and

(iii)         Since international law has not been subjected to the same legislative rigours in their adoption as national laws as it normally is the case with other municipal laws, it should be viewed only as supplementing legislation by Parliament and therefore at a level below the Acts of Parliament in the hierarchy of laws.

Any of this position may be taken depending on the legislative pattern that the country may adopt to enforce international law.

Session 4 LEGISLATIVE LAW MAKING

Introduction

Acts of parliament and other subsidiary legislation done by bodies to which parliament has conferred the power to legislate are important sources of law.

Primary Legislation

An Act is a statute enacted as primary legislation by national or sub-national legislative organs. In Kenya, under the 2010 Constitution, the counties have legislative assemblies in the form of County Assemblies under the devolved system.

It is important to note that the word ‘statute’ is used to denote a formal written enactment of a legislative authority. The word is usually used to distinguish between the law made by legislative bodies from case law, decided by courts, and from regulations issued by government agencies (as subsidiary legislation). Statutory law is also to be distinguished from and is subordinate to constitutional law.

In Kenya, the Constitution divides the legislative competence between the national legislature and the county legislature (the 4^th schedule to the Constitution). Some of the areas of legislative competence of the national and county legislative organs overlap including agriculture, education, health etc.).

Statutes are of several kinds. They may be public or private; declaratory or remedial; temporary or perpetual etc. A temporary statute is one which is limited in its duration at the time of its enactment. It continues in force until the time of its limitation has expired, unless sooner repealed. A perpetual statute is one for the continuance of which there is no limited time, although it be not expressly declared to be so. If, however, a statute which did not itself contain any limitation is to be governed by another which is temporary only, the former will also be temporary and dependent upon the existence of the latter.

A statute made by Parliament must accord to the Constitution or else it will be void to the extent of inconsistency. In Hassan Ali Joho v Suleiman Said Shabal,7 Suleiman Shahbal had filed a petition in the High Court challenging the validity of the election of Hassan Joho at the gubernatorial election for Mombasa County. At the heart of the matter was the constitutionality of s. 76(1)(a) of the Elections Act vis-à-vis Art.87(2) of the Constitution.

Section 76(1)(a) stated that a petition to question the validity of an election shall be filed within twenty eight days after the date of publication of the results of the election in the Gazette. Art. 87(2) stated that petitions concerning an election, other than a presidential election, shall be filed within twenty-eight days after the declaration of the election results by the IEBC. Defining the term ‘declaration’, the Supreme Court declared the provision of

s. 76(1)(a) of theElections Act inconsistent with the provisions of Art. 87(2) of the Constitution and thus pursuant to Art. 2(4), void to the extent of the inconsistency.

In the SK Macharia Case,8 an application for leave to appeal against the judgement of the Court of Appeal where the Appeal judge had been removed through the vetting of the judiciary post the 332010 Constitution, pursuant to section 14 of the Supreme Court Act, the Supreme Court declared section 14 of the Act unconstitutional insofar as it purported to confer “special jurisdiction” upon the Supreme Court contrary to the express terms of the Constitution.

The Process of Legislation/Law Making Process

A draft Act of Parliament is known as a Bill. In territories with a Westminster system, most Bills that have any possibility of becoming law are introduced into Parliament by the government. In the UK, this will usually happen following the publication of a ‘white paper’, setting out the issues and the way in which the proposed new law is intended to deal with them.

 

⁷ Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others [2014]eKLR

 

⁸ Samuel Kamau Macharia & Another v. Kenya Commercial Bank & 2 Others, Civil Application No. 2 of 2012

A Bill may also be introduced into Parliament without formal government backing; this is known as a ‘private member's Bill.’

In territories with a multi-cameral parliament, most Bills may be first introduced in any chamber. However, certain types of legislation are required, either by constitutional convention or by law, to be introduced into a specific chamber. For example, bills imposing a tax, or involving public expenditure, are introduced into the National Assembly in Kenya (see articles 109 and 114), or into the House of Commons in the United Kingdom by convention. Conversely, bills proposed by the Law Commission and consolidation bills traditionally start in the House of Lords in the UK.

In Kenya, a Bill not concerning county government is considered only in the National Assembly while a Bill concerning county government may originate in the National Assembly or the Senate.

Once introduced, a bill must go through a number of stages before it can become law. In theory, this allows the bill's provisions to be debated in detail, and for amendments to the original bill to also be introduced, debated, and agreed to.

In bicameral parliaments, a bill that has been approved by the chamber into which it was introduced is ‘send’ to the other chamber. Broadly speaking, each chamber must separately agree to the same version of the bill. Finally, the approved bill receives assent; in most territories this is merely a formality, and is often a function exercised by the head of state.

Standing orders also provide for the process of legislation. Usually, the Bill goes through:

4.3.1                 First reading

The first reading is a formal process that involves no debate.

 

4.3.2                 Second reading

The debate on general principles of the Bill is done.

4.3.3                 Committee Stage

Bills usually go through House Committees or to a Committee of the Whole House where the Bill goes through a detailed line by line examination. Amendments are usually considered here and public opinion is accepted. Debate on amendments is unrestricted.

4.3.4                 Report Stage

After the end of Committee Stage the committee tables its report before the House. At this stage, there are further chances to amend the Bills by members through a vote. For long and complex Bills, this may be spread over several days.

4.3.5                 Third Reading

Bill is then read and passed or opposed by the House.

 

4.3.6                 Presidential Assent

In Kenya, A Bill passed by Parliament has to get presidential assent to become a law. Under the Constitution, a Bill that has been passed by Parliament and assented to by the President shall be published in the Gazette as an Act of Parliament within 7 days after assent (art 116).

An Act of Parliament comes into force on the 14^th day after its publication in the Gazette, unless the Act stipulates a different date at which it will come into force.

An Act of Parliament that confers a direct pecuniary interest on members of Parliament shall not come into force until after the next general election of members of Parliament.

Delegated Legislation/Subsidiary Legislation/Indirect Legislation/Statutory instruments

An Act of Parliament, or legislation of a county, may confer on any State organ, State officer or person the authority to make provision having the force of law in Kenya.

For this to be so, the Act has to expressly specify the purpose and objectives for which that authority is conferred, the limits of the authority, the nature and scope of the law that may be made, and the principles and standards applicable to the law made under the authority.

4.4.1                 Why is it necessary to have controls over delegated legislation? Delegated legislation is made by non-elected bodies away from democratically elected politicians (parliament), as a result many people have the power to pass delegated legislation,

which provides a necessity for control, as without controls bodies would pass outrageous unreasonable legislation which was attempted in the past. In Strictland v. Hayes Borough Council (1986), a bylaw prohibiting the singing or reciting of any obscene language generally, was held to be unreasonable and as a result the passing of this delegated legislation was rejected.

It is essential to control the exercise of delegated legislative power in order to avoid authorities abusing their powers (R v Secretary of State for Education and Employment, ex parte National Union of Teachers (2000) and Commissioners of Custom and Excise v Cure and Deely Ltd (1962)).

Another issue which occurs which makes controls over delegated legislation vital is sub- legislation, which is where law making is handed down another level to people other than those who were given the original power to do so, to implement important policies. Creating criticism that our law is made by civil servants (who may know hardly anything about the law) and just rubber stamped by the Minister of that apartment, this requires law passed by these civil servants to be checked by the scrutiny committee of parliament or the courts.

Moreover, delegated legislation can share the same issues as Acts of Parliament such as obscure wording that can lead to difficulty in understanding the law, which again makes controls necessary as parliament or the courts can stop unclear legislation, which will affect the lives of hundreds of people from passing.

4.4.2                 Advantages of Delegated Legislation

(i)        Parliament does not have the time to legislate on all issues;

 

(ii)      They are speedy to enact and are therefore suitable for emergency intervention;

 

(iii)    They are flexible or less rigid than Acts of Parliament and therefore they are easy to amend or appeal;

(iv)     Parliament will not usually have the requisite technical capacity.

 

4.4.3                 Disadvantages of delegated legislation

(i)             Lack of adequate parliamentary control;

 

(ii)           Lack of adequate Judicial control;

(iii)         They are undemocratic as they are not made by democratically elected persons;

 

(iv)          Too much delegated legislation contributes to uncertainty in the law;

 

(v)            There is the danger of sub-delegation.

 

4.4.4                 The Concept of Ulta Vires in the Exercise of Delegated Powers

With relation to delegated legislation, there are issues of ultra vires which have to be appreciated. It may be substantive or procedural ultra vires exercise of delegated powers.

Ultra vires is a Latin phrase meaning literally "beyond the powers", although its standard legal translation and substitute is "beyond power".

a)              Substantive ultra vires - the authority making the delegated legislation exceeds the powers granted by parliament.

b)              Procedural ultra vires - where the authority making the delegated legislation contravenes any mandatory procedure set out in the parent statute.

Ultra vires delegated legislation will be amenable for quashing by courts of law. The doctrine of ultra vires gives courts considerable powers of oversight over decision-making. The range and variety of bodies amenable to the doctrine is large. Ministers, or any public body with statutory powers, may be included. The doctrine also applies to companies and corporations that are amenable to the remedies of declaration or injunction.

A local authority that enters an agreement or contract that is outside its statutory powers is said to be acting ultra vires. In Hazel v. Hammersmith [1991] 1 All ER 545, the House of Lords held that various speculative investments undertaken by local authorities lacked express statutory authorization and were void with severe consequences for those who had invested in local authority activities declared illegal by the courts.

The grounds for claiming ultra vires range from abuse of power, acting unreasonably (Padfield v. Minister of Agriculture, Fisheries and Food [1968] AC 997), or acting not in accordance with the rules of natural justice.

Ultra vires is a formidable doctrine for the courts to intervene and challenge the legality of decisions. Ultra vires may result in significant consequences for the body exercising legal

powers. In many cases the decision that is ultra vires may be said, in law, never to have taken place, with often severe consequences from such a finding on the parties to any agreement.

In Kaka Travellers Cooperative and Savings and Credit Society v. Nairobi City Council, the High Court held that the levying of parking charges by the respondent without the installation of parking metres as required by the Traffic Act was ultra vires the Act. Justice Korir Weldon faulted the city council for arbitrarily increasing parking fees without following its own by-laws. The Court held that:

“The Traffic Act which donated power to the local authorities to impose parking charges provided that the said parking charges should be imposed by way of by- laws made in accordance with the Local Government Act.”

Under the Traffic Act, parking meters was required to assist calculate the charges to be levied.

Session 5

STRUCTURE AND JURISDICTION OF COURT IN KENYA

Introduction

Structure of the court system refers to the hierarchical arrangement of the court from the lowest to the highest one. Composition of the court on the other hand refers to the presiding judicial officer(s) that is the Magistrates and the Judges. Kenya has a court system that operates at different levels. Jurisdiction of a court describes the kind of cases that a particular court is empowered to hear and determine.

Superior Courts/Courts of Record in Kenya

5.2.1                 The Supreme Court

The court is established under article 163 and the Supreme Court Act (No. 7 of 2011). The Court is headed by Chief Justice, who is the president of the court and deputised by the Deputy Chief Justice. The number of Judges of the Supreme Court is 7.

The Court’s jurisdiction includes:

 

(i)           Exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President; and

(ii)         Appellate jurisdiction to hear and determine appeals from the Court of Appeal; and any other court or tribunal as prescribed by national legislation.

(iii)       Appeals from the Court of Appeal lie to the Supreme Court - For cases involving the interpretation or application of the Constitution at the Court of Appeal an appeal lies as of right to the Supreme Court. In other cases where the Supreme Court or the Court of Appeal certifies that a matter of general public importance is involved, an appeal will lie to the Supreme Court.

(iv)        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. In Re the Matter of Commissioner for the

Implementation of the Constitution (Application No. 1 of 2011, [2011] eKLR), the Supreme Court affirmed its jurisdiction to hear matters related to the date of the first elections under the 2010 Constitution but referred the case to the High Court at the first instance since it was also seized with an appellate jurisdiction were the matter to proceed beyond the High Court and Court of Appeal.

All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court.

 

In Peter Oduor Ngoge v Hon. Francis Ole Kaparo and 5 Others,⁹ the issue was whether the Supreme Court could entertain an application where the Court of Appeal has either not determined such motion by the petitioner for leave under s.19 of the Supreme Court Act, 2011, or, has entertained such an application but declined to grant leave; and whether an ordinary subject of leave-to-appeal can trans-mutate to a meritorious theme involving the interpretation or application of the Constitution. It was held that the appellate jurisdiction of the Supreme Court is defined clearly enough under Article 163 of the Constitution, and s.19 of the Supreme Court Act and the petitioner’s case which had been brought without the leave of the Court of Appeal was outside the jurisdiction of the Supreme Court. According to the Court, the petitioner in this case had not rationalized the transmutation of the issue from an ordinary subject of leave-to-appeal, to a meritorious theme involving the interpretation or application of the Constitution – such that it becomes, as of right, a matter falling within the appellate jurisdiction of the Supreme Court.

The Court further held that, in the interpretation of any law touching on the Supreme Court’s appellate jurisdiction, the guiding principle is to be that the chain of Courts in the Constitutional set-up, running up to the Court of Appeal, have the professional competence, and proper safety designs, to resolve all matters turning on the technical complexity of the law; and only cardinal issues of law or of jurisprudential moment, will deserve the further input of the Supreme Court.

In the SK Macharia Case, an application for leave to appeal against the judgement of the Court of Appeal where the Appeal judge had been removed through the vetting of the

 

 

⁹ Supreme Court of Kenya at Nairobi Petition No. 2 Of 2012

judiciary post the 2010 Constitution, pursuant to section 14 of the Supreme Court Act, the Supreme Court declared section 14 of the Act unconstitutional insofar as it purported to confer “special jurisdiction” upon the Supreme Court contrary to the express terms of the Constitution. Recognising the good intention of Parliament, the Court nevertheless found that where the constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limit. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a court of law beyond the scope defined by the Constitution.

5.2.2                 The Court of Appeal

This court is established under article 164. It consists of not fewer than twelve judges.

 

The head of the Court of Appeal is the President of the Court elected by the judges of the Court of Appeal from among themselves.

The Court’s jurisdiction is to hear appeals from the High Court; and any other court or tribunal as prescribed by an Act of Parliament.

The decisions of the Court are binding upon the High Court and other subordinate Courts.

 

Under the repealed Constitution, the Court of Appeal was the Highest Court of the Land (s. 64). This was created by a Constitutional amendment in 1977 after the collapse of the East African Community.¹⁰ Before that, the East African Court of Appeal which was an organ of the first East African Community was the highest appellate Court for the three East African Countries of Kenya, Uganda and Tanzania.

5.2.3                 The High Court

Under the repealed Constitution, the High Court was established under Section 60 as a superior court of record and which had unlimited original jurisdiction in criminal and civil matters and such other jurisdiction and powers as may be conferred on it by the Constitution or any other law.

 

 

 

 

¹⁰ Act No. 13 of 1977, s. 2, 7

The 2010 Constitution, established this court in article 165. The head of the Court is the Principal Judge of the High Court, who is elected by the judges of the High Court from among themselves.

In terms of jurisdiction, the High Court has:

 

(i)             Unlimited original jurisdiction in criminal and civil matters;

 

(ii)           Jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;

(iii)         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 to remove the President under Article 144);

(iv)          Jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of:

a.         The question whether any law is inconsistent with or in contravention of the Constitution;

b.         The question whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of, the Constitution;

c.         Any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and

d.        A question relating to conflict of laws between the county law and the national laws under Article 191; and

(v)       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.

(vi)     Any other jurisdiction, original or appellate, conferred on it by legislation.

 

The High Court does not have jurisdiction in respect of:

 

(i)             Matters reserved for the exclusive jurisdiction of the Supreme Court; or

(ii)           Matters falling within the jurisdiction of :

 

a)       Industrial Court established under art 162(2) of the Constitution and Act No 20 of 2011; and

b)       Environment and Land Court established under art 162(2) of the Constitution Act No 19 of 2011.

In practice only those cases in respect of which the subordinate courts have no jurisdiction will be heard in the High Court. As a superior court of record decisions of the High Court are binding on subordinate courts. Thus the High Court hears ordinary civil cases where the value of the subject matter exceeds the pecuniary jurisdiction the Resident Magistrate courts.

In criminal cases the High Court only hears cases relating to offences of murder and treason.

 

In addition to the ordinary civil and criminal jurisdiction of the High Court there are certain matters which can only be heard by the High Court exclusively.

These include:

 

(i)             Interpretation of the Constitution art 165(3)(d).

 

(ii)           Cases involving enforcement of fundamental rights and freedoms of the individual which are set out in Chapter 4 of the Constitution (art 165(3)(b).

(iii)         Election Petitions involving Parliamentary election (for presidential, the exclusive jurisdiction is with the Supreme Court).

(iv)          Judicial Review - Under Order 53 of the Civil Procedure Rules, the High Court has powers of Judicial Review of administrative action and can grant orders of Certiorari, Mandamus and Prohibition.

(v)            Supervisory Jurisdiction: The High Court exercises supervisory jurisdiction over subordinate courts and in this regard can transfer cases from one subordinate court to another if it deems it fit.

(vi)          Admiralty jurisdiction - Section 4 of the Judicature Act provides that the High Court shall be a court of admiralty i.e. the court shall entertain cases of High Seas, Territorial Waters, Lakes and other navigable inland waters.

(vii)        Appellate Jurisdiction - The High Court has appellate jurisdiction i.e. appeals from all subordinate courts and tribunals exercising quasi-judicial powers can properly be entertained by the High Court.

(viii)      Winding up of Companies - This can only be filed at the High Court.

 

(ix)          Probate Jurisdiction - under the Laws of Succession

 

(x)            Bankruptcy petitions

 

(xi)          Matters dealing with Intellectual property.

 

With regard to the composition of the High Court, ordinarily, the High Court is duly constituted by a Judge sitting alone. However there are instances where two or more High Court Judges may sit together to hear certain types of cases.

Issues raising substantial question of law are normally to be heard by an uneven number of judges, being not less than three. For example, in matters raising substantive constitutional question the Chief Justice is required to appoint at least three High Court judges to hear the case.

Previously, section 7 of the Judicature Act Cap 8 provided a limit of 70 judges. This has now been increased to 150 under the new Constitution to tackle the backlog in the court.

All appeals from the High Court lie to the Court of Appeal.

 

5.2.4                 Specialised Courts

Under article 159(1), judicial authority is exercisable by courts and tribunals established by or under the Constitution. Some specialised courts have thus been established by the Constitution and are ranked alongside the High Court. These include:

1) Employment and Labour Relations Court

 

Before 2010, the Industrial Court was established under the Trade Disputes Act Cap 234. As noted above, it now ranks at the same level as the High. Its composition included a judge and two other members appointed from a panel constituted by the Minister for Labour. The judge of the Industrial Court was appointed by the President for a renewable term of 5 years and the requisite qualifications were the same as those for other judges.

Its jurisdiction was to hear industrial disputes that occurred between employer and employees, federation of employers and employee unions etc. These related to matters of employment, terms of employment, dismissal redundancy collective bargaining agreement etc. No Appeal lay from an award of the Industrial Court.

The Constitution of 2010 has now created the Employment and Labour Relations Court, art 162, which is at the same status as the High Court to determine industrial disputes.

In United States International University (USIU) v Attorney General & 2 others,11 the question was whether the Industrial Court is competent to interpret the constitution and enforce matters relating to breach of fundamental rights and freedoms and Whether employment and labour relations matters which raise constitutional issues filed in the High Court prior to establishment of the Industrial Court should be handled by the High Court. It was held that:

(i)         The Industrial Court Act 2011 is silent on the jurisdiction of Industrial Court to interpret the Constitution or to enforce fundamental rights and freedoms. Likewise Art 165 of the Constitution is silent whether the courts of the status of the High Court have jurisdiction to interpret the constitution, and enforce fundamental rights and freedoms under the Bill of rights.

(ii)       The Industrial Court as constituted under the Industrial Court Act, 2011 as a court with the status of the High Court, is competent to interpret the Constitution and enforce matters relating to breach of fundamental rights and freedoms, in matters arising from disputes falling within the provisions of section 12 of the Industrial Court Act, 2011.

(iii)     The Industrial Court, having been established to deal with employment and labour matters. It follows that all employment and labour relations matters pending in the High Court, shall be heard by the Industrial Court which is a court of the status of the High Court. The High Court therefore lacks jurisdiction to deal with matters of employment and labour matters whether filed in the High Court before or after the establishment of the Industrial Court.

 

¹¹ High Court, Nairobi, Petition No 170 of 2012.

Both matters were thus transferred to the Industrial Court for hearing and disposal.

 

In Kenyatta University v. Industrial Court of Kenya & another (Misc. Civil Appl. No. 430 of 2007 [2012]eKLR, the question before the High Court was whether the High Court had jurisdiction to entertain an application pertaining to issues of employment and labour relations and to supervise the Industrial court. It was held that the jurisdiction of the High Court vis-à-vis the Industrial Court has now been settled by Article 165 (5) of the Constitution which provide that the High Court shall not have jurisdiction to determine matters pertaining to employment and labour relations. Jurisdiction over such matters is now vested by Article 162(2) in the Industrial Court, a court with the status of the High Court established under the provisions of the Industrial Court Act, 2011.

However, it was noted that neither the Constitution nor the Industrial Court Act operates retrospectively and the High Court had jurisdiction to supervise the Industrial Court as it existed in February, 2007 when the decision impugned in this application was made. Thus, had it found that the Industrial Court acted in excess of its jurisdiction, then the High Court would have had the jurisdiction to quash the decision if it was reached ultra vires the jurisdiction of the respondent.

5.2.4.1       Environment and Land Court

Environment and Land Court is a relatively new court established by the Environment and Land Court Act (No 19 of 2011) pursuant to the Constitution of 2010. The court is at the same level as the High Court as per art 162(2)(a) & (b)).

Subordinate Courts

The 2010 Constitution does not say much else about the Subordinate Courts except to grant Parliament the powers to define the functions, roles and jurisdiction of these courts. Article 169 states:

(1)  The subordinate courts are:

(a)  The Magistrates courts;

(b)  The Kadhis’ courts;

(c)  The Courts Martial; and

(d) Any other court or local tribunal as may be established by an Act of Parliament, other than the courts established as required by Article 162 (2).

(2)  Parliament shall enact legislation conferring jurisdiction, functions and powers on the courts established under clause (1).

5.3.1                 Resident Magistrates Courts

These are established under Section 3 of Magistrates' Courts Act Cap 10. A Resident Magistrate Court is presided by a Resident Magistrate, Senior Resident Magistrate, Principal Magistrate, Senor Principal Magistrate or even the Chief Magistrate.

The territorial jurisdiction of an RM is country wide (Section 3(2) of Cap 10). However, under the Civil Procedure Act particularly Sections 11 to 18 the place for suing with regard to civil proceedings is specifically provided for. At present, all Resident Magistrate Courts have only original jurisdiction in both civil and criminal matters.

In criminal cases Resident Magistrates Courts have power to hear and determine all cases involving offences under any Kenyan Law except those exclusively triable by the High Court.

In Civil cases the current jurisdiction of Resident Magistrate Courts is set out in the in the Magistrates’ Courts Act cap 10 (as amended from time to time). In Justus Kyalo Mutunga v Labh Sing Harnam Civil Suit 338 of 2012 High Court at Nairobi [2012] eKLR, the issues were about the application to transfer a suit for damages arising from a road accident, after the suit had mistakenly been filed in a subordinate court outside the territorial jurisdiction of where the accident had occurred. According to the respondent, the suit could not legitimately be transferred from the Court that had no jurisdiction to one of competent jurisdiction. It was Held, the Civil Procedure Act is not the instrument that confers jurisdiction upon the subordinate courts since the jurisdiction of the subordinate courts is governed by Magistrate’s Courts Act. Section 3(2) of the former Act expressly states that the Resident Magistrate’s Court shall have jurisdiction throughout Kenya. Per Ringera J in Mohamed Sitaban v George Mwangi Karoki Civil Application No. 13 of 2002:

Under section 3(2) of the Magistrate’s Court Act, a court of the resident magistrate has jurisdiction throughout Kenya. Such a court is not subject to the local territorial jurisdiction contemplated by section 15 of the Civil Procedure Act which applied only to courts lower than the Resident Magistrate’s Court.

The Magistrates Court Act was enacted in 1967 long after the Civil Procedure Act. The Legislature was therefore aware of the provisions of section 15 of the Civil Procedure Act and where two provisions in different statutes conflict, the provision in the latter statute is deemed to amend the earlier provision.

There may be sound administrative reasons for filing suits in administrative Districts in which the defendant resides but those reasons cannot oust a statutory jurisdiction. The rule that a suit filed in a court without jurisdiction is a nullity and cannot be transferred is inapplicable in such cases.

Subsequent to the 2013 General Elections, the Magistrate Courts were engaged in hearing electoral petitions for County Assembly seats. The Chief Justice has also been granted by the Industrial Court Act, 2011 the authority to appoint some Magistrates Courts to hear and determine employment and labour relations (industrial) disputes. Obviously, appeals from these courts would then fall back on the Industrial Court.

5.3.2                 District Magistrates Courts

These are established under Section 7 of the Magistrates Courts Act Cap 10. There are 3 classes of DM’s courts: DM3; DM2; DM1. District Magistrate 3 has since been phased out administratively although the Act has not yet been amended. However Criminal Law Amendment Act No. 5 of 2003 has expressly abolished DM courts with regard to criminal proceedings.

Each DM Court is presided over by one Magistrate. The territorial jurisdiction of a DM’s court is limited to the administrative district for which the court is established. However the Chief Justice may designate two or more districts for purposes of District Magistrates Courts. These courts only have original jurisdiction as opposed to appellate jurisdiction i.e. the power to hear cases at first instance only. They have no appellate jurisdiction whatsoever.

Under Section 9 of the Magistrates Court Act the civil jurisdiction includes:

 

(i)         Where the proceedings concern a claim under customary law;

 

(ii)       Civil cases where the value of the subject matter in dispute does not exceed the amounts set for each court.

5.3.3                 Kadhi Courts

Kadhi Courts are established under art 170 of the Constitution of 2010 as subordinate courts. The jurisdiction of a Kadhi court is 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.

Tribunals are usually established by Acts of Parliament.

 

5.3.4                 Courts Martial

Under part VIII of the Armed Forces Act, cap 199, Parliament and the Chief of Defence Forces have the power to establish a court martial in Kenya.

Courts martial have power to try persons for any offence and to mete punishment. A court martial is convened to deal with a specific matter. There is, therefore, no permanent structure.

People to be tried by courts martial include members of the Army, Air Force, the Navy and their reserves. However, the court does not apply to the police force. The courts martial exercises limited criminal jurisdiction, under only one type of law —military law.

Jurisdiction is penal or disciplinary and designed to ensure discipline in the Armed Forces. The cases tried include insubordination, cowardice, fraud, theft, aiding an enemy and neglect of duty. Appeals from the decisions of the courts martial lie with the High Court, which must grant leave before the appeal is heard.

5.3.5                 Children’s Court

Part VI of the Children Act (No 8 of 2001) establishes the Children’s Courts. As a subordinate courts of any class (under the First Schedule to the Criminal Procedure Code). The Act empowers the Chief Justice may, by notice in the Gazette, appoint a magistrate to preside over cases involving children in respect of any area of the country.

The Jurisdiction of the court includes:

 

(i)         Conducting civil proceedings on matters set out under the Act;

 

(ii)       Hearing any charge against a child, other than a charge of murder or a charge in which the child is charged together with a person or persons of or above the age of eighteen years;•

(iii)     Hearing a charge against any person accused of an offence under the Act;

 

(iv)     Exercising any other jurisdiction conferred by this or any other written law.

Other Tribunals and Quasi-Judicial Bodies

·         Business Premises Rent Tribunal - was established under the Landlord and Tenants (Shops, Hotels and Catering Establishments) Act Cap 301 Laws of Kenya.

·         Rent Tribunal – Was established under the Rent Restriction Act Cap 296 Laws of Kenya;

·         The Cooperative Tribunal - established under Section 77 of the Cooperative Societies Act;

·         Licensing Boards - established under myriad Acts;

 

·         Land Disputes Tribunal – now abolished was established under the Land Disputes Tribunals Act of 1990.

Jurisdictional Question

5.5.1                 Original Jurisdiction of Courts

The Supreme Court, the High Court and the Subordinate courts have this Jurisdiction. This is not a jurisdiction of the Court of Appeal.

5.5.2                 Appellate Jurisdiction

Appeals are not as a matter of right but are possible under provisions of statutes. In the case of human rights, the Constitution grants the right to appeal.

 

In Lawrence Nduttu & 6000 Others v. Kenya Breweries Ltd & another,12 the Supreme Court was asked to determine whether the mere allegation of a violation of human rights by a litigant in his/her pleadings give rise to an automatic right to access the Supreme Court on appeal and whether the Court required to assume "supervisory appellate jurisdiction" and inquire into the matter. The court held that:

(1)   Only two types of appeals lie to the Supreme Court from the Court of Appeal.

a.       The first type of appeal lies as of right if it is from a case involving the interpretation or application of the Constitution. In such a case, no prior leave is required from this Court or Court of Appeal.

 

 

¹² Supreme Court, Petition 3 of 2012 [2012]eKLR.

b.      The second type of appeal lies to the Supreme Court not as of right but only if it has been certified as involving a matter of general public importance. It is the certification by either Court which constitutes leave. This means that where a party wishes to invoke the appellate jurisdiction of the Court on grounds other than that the case is one which involves the interpretation or application of the Constitution, then such intending appellant must convince the Court that the case is one involving a matter of general public importance. If the Court of Appeal is convinced that such is the case and the certification is affirmed by the Supreme Court, then the intending appellant may proceed and file the substantive appeal. The question as to what constitutes "a matter of general public importance" is one that is bound to be addressed by the Supreme Court in the foreseeable future as litigants seek certification or leave to lodge appeals on that basis.

(2)   The appeal was not based on Article 163 (4) (b) of the Constitution of Kenya, 2010 hence the appellants did not need to obtain prior leave or certification by either the court of Appeal or the Supreme Court before filing their Appeal.

Even if it were to be assumed that the Court had appellate jurisdiction in appeals against interlocutory orders, the interlocutory order the nature of which was being appealed against in the case in question was not one that would inspire the Court to exercise jurisdiction in favour of the appellants. At any rate, such a scenario could revive the question as to whether prior leave of the Court would be necessary.

5.5.3                 Special Jurisdiction

It has been held by the Supreme Court in Samuel Kamau Macharia and another v. Kenya Commercial Bank Limited and 2 others, Application No. 2 of 2011(regarding the Supreme Court Act conferment of jurisdiction to the Supreme Court to review the decisions of judges removed through vetting) that Section 14 of the Act was unconstitutional insofar as it purported to confer “special jurisdiction” upon the Supreme Court, contrary to the express terms of the Constitution. Although Parliament had good intentions in providing for the “extra” jurisdiction for the Supreme Court, as embodied in Section 14 of the Supreme Court Act, ought to have been anchored under Article 163(4) of the Constitution, or under Section 23 of the Sixth Schedule on “Transitional Provisions”.

Judicial Review and the Writ Jurisdiction of the Superior Courts The main method through which the court will ensure that the Executive does not abuse its powers is through judicial review over executive action. At common law, actions or cases were commenced by a writ obtained from the royal office, the chancery. Every complaint

had a separate writ. The writ was a document which stated the nature of the complaint and commanded the sheriff of the country where the defendant resided to ensure that the defendant attended court on a specified date.

Some of the writs that developed in common law include:

 

(i)             Habeas corpus - This is where the court orders that a person who has been detained/ arrested without legal justification should be released

(ii)           Certiorari - where lower courts are directed to produce the record of its proceedings

 

(iii)         Prohibition - orders from high court to lower courts preventing them from hearing or continuing to hear a matter where in is beyond the jurisdiction of that court or it is in violation of the rules of natural justice.

(iv)          Mandamus - where order issued on person or body commands them to perform a certain duty.

In Centre for Rights Education & Awareness (Crew) & others v. The Attorney General consolidated with Patrick Njuguna & another v the Attorney General & another,13 the constitutionality of Presidential appointment County Commissioners under the new Constitution was challenged. It was held:

In applying Article 129, 131, 132 (2), 2, 3, 10 ,20 , the 47 County Commissioners appointed by the President in which only 10 out of 47 were women did not meet the constitutional requirements at Article 27 (8) and violated the non- discrimination provisions of Article 27.

In referring to the principle of progressive realization the interpretation in the case of Milka Adhiambo Otieno & Another -v- The Attorney General & Others, Kisumu High Court Petition No. 44 of 2011 was upheld. It went further with the view that the phrase ‘progressive realization’ is applied to those circumstances where an allocation of limited resources is required.

 

 

¹³ High Court, Nairobi, Petition 208 & 207 of 2012.

The appointments failed the test of constitutionality by disregarding the national values and principles set out at Article 10(b) and the principle contained in Article 27(8) of the Constitution.

With regard to public appointments, it is critical to have public participation and consultation. The publication of the Gazette Notices presented a fait accompli to the country and thus did not respect the values and principles of the Constitution.

Section 23 and 24 of the former Constitution, were not saved by the Transitional Provisions contained in Schedule 6 of the Constitution. Consequently, the President could not make any appointments under the former constitution.

Session 6

THE RULE OF LAW, CONSTITUTIONALISM, SEPARATION OF POWERS AND CHECKS AND BALANCES AS BASELINES FOR THE KENYAN LEGAL SYSTEM

Introduction

As noted at the beginning, the legal system a country includes the set of rules of substance and procedure as well as the institutions relating to the governance of social behaviour and resolution of disputes which arise in the process, and includes the underlined social values and attitudes which affect the operations of such values.

In the context of Kenya, doctrines of the rule of law, constitutionalism, separation of powers and checks and balances are some of the overarching values that underlie the legal system and determines the methods through which they are operationalised, thus worth of particular attention here.

The Rule of Law

The rule of law is fundamental to democratic order. Aristotle said more than two thousand years ago, "The rule of law is better than that of any individual." Lord Chief Justice Coke quoting Bracton said in the case of Proclamations (1610) 77 ER 1352) in the UK that. “The King himself ought not to be subject to man, but subject to God and the law, because the law makes him King.”

6.2.1                 Dicey's rule of law

The rule of law in its modern sense owes a great deal to the late Professor AV Dicey. Professor Dicey's writings about the rule of law are of enduring significance. In his 1885 book, An Introduction to the Study of the Law of the Constitution (often abbreviated as Law of the Constitution), Dicey laid out his three principles of the rule of law thus:

(i)         No punishment may be inflicted on anyone other than for a breach of the law;

 

(ii)       Irrespective of rank and status, all men are equal under the law; and

(iii)     The rights and freedom of citizen are best protected under the common law.

 

1)       Absence of arbitrary power

 

The first principle involves the absence of arbitrary power on the part of the government and prevents it from making retrospective penal law. This means that no man is punishable except for a distinct breach of the law of the land. In order to comply fully with this requirement, laws should be open and accessible, clear and certain.

Under social contract theories, the individual citizen transfers his rights to the government. To express it in another way, the individual citizen owes allegiance to the Crown in return for protection of the Crown. The doctrine of allegiance incorporates the idea of obedience to law - both on the part of the citizen and the government.

Under the rule of law, the extent of the State's power and the manner in which it is exercise is limited and controlled by law. This control is aimed at preventing the State from acquiring and using wide discretionary powers. In Dicey's view, inherent in discretion is the possibility of it being used in an arbitrary manner and will be open to abuses.

If retrospective penal law is imposed, the individual will be placed in the position where his conduct was lawful at the time of his action but, subsequently held to be unlawful.

The court has always construed penal statutes narrowly and will be slow to find that Parliament intended to impose retrospective liability. If the Act of Parliament is expressed in language which is fairly capable of either interpretation, then the court would elect to construe it as prospective only.

In Waddington v Miah (1974), the House of Lords interpreted the Immigration Act 1971 to disallow it having a retrospective effect using Article 7 of ECHR, which guarantees freedom from retrospective application of laws.

2)       Equality before the law

 

Dicey emphasise the notion that government itself is also subjected to law and that everyone shall be subjected to the law, irrespective of rank and positions. In the words Lord Denning in Gouriet: "Be ye ever so high, the law is above thee."

The idea of equality before the law is subjected to so many exceptions. In so far as equal powers are concerned, it must be recognised that the police have powers over and above ordinary citizen (under common law). Ministers also do have power to enact delegated legislation and the government exercises prerogative powers. Members of Parliament have immunities not available to citizen. In the words of Sir Ivor Jennings, ‘No two citizens are entirely equal.’

The constitutional principle of the rule of law serves to bridge the gap between the legal doctrines of parliamentary sovereignty and the political sovereignty of the people ... The rule of law therefore assists in preventing the subversion of the sovereignty of the people by manipulating the legal sovereignty of Parliament.

The evidence for the notion of equality before the law is neither clear nor uncontentious. There remains room for doubt and arguments.

3)       The protection of rights under Common law

4)       Dicey laid great emphasis on government by law, rather than by men.

 

Dicey's preference demonstrates a faith in the judiciary. In his view, the constitution is pervaded by the rule of law on the ground that the general principles of the constitution (e.g. the rights to personal liberty and the rights of a fair trial) are the result of judicial decisions.

It is essential to recognise that Dicey was writing from a particular political perspective. He was a committed believer of free market operations and was opposed to any increase in State activity that would regulate the economy. Thus, the third limb of Dicey may look unsustainable nowadays. In the UK, for example, the enactment of the Human Rights Act 1998, which incorporated rights protected under the ECHR included the obligations of the government to respect human rights.

6.2.2                 Essential characteristic of the rule of law

While there is no set definition of the rule of law encompassing all its practices, there is a basic realm of common principles as to what the rule of law entails. For example, Rachel Kleinfeld Belton identifies five common principles of the rule of law:

(i)           A government bound by and ruled by law;

(ii)         Equality before the law;

 

(iii)       The establishment of law and order;

 

(iv)       The efficient and predictable application of justice; and

 

(v)         The protection of human rights.

 

Belton also identifies a second definition for the rule of law that is based on the institutions or instruments by which the ends of rule of law are achieved. These include:

(i)           The existence of comprehensive laws or a constitution based on popular consent;

 

(ii)         A functioning judicial system;

 

(iii)       Established law enforcement agencies with well-trained officers.

 

The influential political theorist Joseph Raz, for his part, in his work ‘The Rule of Law and Its Virtue,’ (The Law Quarterly Review, volume 93, 1977 pg. 195)  identified several principles that may be associated with the rule of law:

(i)             That laws should be prospective rather than retroactive;

 

(ii)           Laws should be stable and not changed too frequently, as lack of awareness of the law prevents one from being guided by it;

(iii)         There should be clear rules and procedures for making laws;

 

(iv)          The independence of the judiciary has to be guaranteed;

 

(v)            The principles of natural justice should be observed, particularly those concerning the right to a fair hearing;

(vi)          The courts should have the power of judicial review over the way in which the other principles are implemented;

(vii)        The courts should be accessible; no man may be denied justice;

 

(viii)      The discretion of law enforcement and crime prevention agencies should not be allowed to pervert the law.

According to Raz, the validity of these principles depends upon the particular circumstances of different societies, whereas the rule of law generally “is not to be confused with democracy, justice, equality (before the law or otherwise), human rights of any kind or respect for persons or for the dignity of man”.

Constitutionalism

This refers to the idea that the conduct of the government and the exercise of state power should be limited according to certain established and enforceable rules. This concept has to do with the degree to which the constitution functions as a real limitation in reference to which a state is administered. It is, therefore, possible to have a Constitution without actual constitutionalism.

The factors to consider while assessing constitutionalism are:

 

(i)           Does the constitution or the law impose any limits to the power of the state?

 

(ii)         Is the constitution hierarchically superior to other legal norms?

 

(iii)       What is the degree of entrenchment of the constitution, i.e., can it be easily be amended?

(iv)       What degree of separation of powers exits?

 

According to De Smith:

 

Constitutionalism is practiced in a country where the government is genuinely accountable to an entity or organ distinct from itself, where elections are freely held on a wide franchise at frequent intervals and where political groups are free to organize and to campaign in as well as immediately before elections with a view of representing themselves as an alternative government and where there are legal guarantees of basic liberties and enforced by an independent judiciary.

The core elements of constitutionalism include:

 

(i)           The recognition and protection of fundamental rights and freedoms;

 

(ii)         Separation of power;

 

(iii)       An independent judiciary;

 

(iv)       The review of constitutionality of law; and

 

(v)         The control of the amendment of the Constitution.

In countries where there exists a written Constitution, the Constitution invariably enjoys a superior position within the legal framework through its entrenchment and constitutionalism is protected by ensuring that the key tenets enshrined within the principles enjoy a higher level of protection. The Constitution is regarded as the first law within which framework of details of written rules and practices have to be laid out. The theory behind the supremacy of the Constitution is that it the Constitution embodies a contract between the governor and the governed and therefore the Constitution must not be altered in the same manner as ordinary legislation. The constitution is the product of the exercise of the constituent power in the people and it is from it that all the other legislation or laws derive their authority.

In the Kenyan context, the concept of the supremacy of the Constitution is captured under article 2 of the Constitution, similar to section 3 of the repealed Constitution. It is provided that, “The Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government; No person may claim or exercise State authority except as authorised under the Constitution.

(i)  The validity or legality of this Constitution is not subject to challenge by or before any court or other State organ; (ii) and any law, including customary law that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of the Constitution is invalid.

Section 47 of the repealed Constitution was concerned with the procedure of amendment and provided under subsection 2:

A Bill or an Act of Parliament to alter this Constitution shall not be passed by the National Assembly unless it has been supported on the second and third readings by the votes of not less than 65% of all the members of the Assembly (excluding ex-officio members).

Currently, the constitution in Chapter Sixteen provides the procedure for its amendment. Whereas article 256 provides for amendment by Parliamentary Initiative, art 257 talks of amendment by Popular Initiative. Furthermore, some amendments can only be made through a referendum.

Separation of Power and the Concept Checks and Balances

6.4.1                 Introduction

The separation of powers is a constitutional principle designed to ensure that the functions, personnel and powers of the major institutions of the state are not concentrated in any one body. It ensures diffusion rather than a concentration of power within the state.

There is no strict separation of powers under our Constitution. Instead, while some separation of powers exists, it is more accurate to speak of a system of checks and balances which ensures that powers are not abused.

6.4.2                 The Principle of Separation of Powers

The fundamental purpose of the separation of powers is to avoid the abuse of power and thereby to protect the rights and liberties of citizens.

The concept itself is of great antiquity and can be attributed to Aristotle (384–322 BC); however, the clearest exposition of the doctrine can be found in the French writer Charles- Louis de Montesquieu’s De l’esprit des lois (1748). In essence, Montesquieu states that the three organs of government – the executive, legislature and judiciary – should each have a discrete and defined area of power and that there should be a clear demarcation of functions between them: this is true ‘separation of powers’.

Under a written constitution, the powers allocated to various institutions will be clearly defined. It should however be noted that even under a written constitution a complete separation of powers is not possible, and that without some degree of interaction between the institutions there would be constitutional deadlock. For the purpose of analysis, the subject may thus be broken down by considering the extent to which the executive and legislature, executive and judiciary, and judiciary and legislature overlap and interact.

Under this doctrine, it is argued that Government organs must be separated to ensure proper and easy functioning of state duties. The organs of the state will include executive, legislature and judiciary. They are supposed to be clearly defined. Their powers and duties should be clearly spelt. They should be autonomous without guidance from outside.

The aim of separation of powers is to prevent the abuse of public power through the concentration of power. Thus James Madison in Federalist 47:

The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny.

The other aim is to enhance the efficiency of government. Separation of powers entails:

(i)           Separation of functions: The powers of any one branch should be exercised solely and absolutely by that branch and not the other two. This means that the executive must not perform the functions of the legislature or the judiciary performing the functions of the executive. The legislature has the duty of making new law and amending existing law. The judiciary settles disputes between individual citizens and between the individual citizens and the state. While the executive carries out ordinary administration of the state.

(ii)         Autonomy and independence: That one branch should never be controlled and/or interfered with in the exercise of its powers.

(iii)       Separation of persons: That the same persons should not form or be part of more than one of the three branches of the Government. This means that the same people should not occupy the legislature, judiciary and the executive at the same time even if these bodies would be said to exist separately.

In Kenya the totality of governmental process fall into three broad divisions

 

(i)         Legislative (law-making);

 

(ii)       Executive; and

 

(iii)     Adjudicative.

 

6.4.3                 Weaknesses and Criticisms of the Doctrine of Separation of Power

Montesquie’s theory of separation of powers has been subject to attack on the grounds that:

(i)            The Government is an organic body, which cannot be separated into compartments. In practice, each organ needs assistance of the others. Complete separation of organs of Government is therefore practically impossible.

(ii)          Absolute separation would be undesirable because there would entail a spirit of competition and not co-operation within the Government resulting in clashes and deadlocks. Functioning of the Government in a proper way demands some co- existence and harmonious collaboration between the three organs. Separation of powers is, therefore, necessary only to the extent that it provides specialization of functions, division of labour and efficiency.

(iii)        The advocates of the theory were under the belief that the enjoyment of an individual’s rights depended solely on the separation of powers, but this is not the case as there are other determinant factors such as rule of law, constitutionalism, etc. Separation of powers alone does not guarantee personal rights and freedoms. The separation of powers theory does not also guarantee absence of arbitrary rule because the legislature may pass oppressive laws.

(iv)         There is the assumption that all the 3 arms of Government are equally important. For example the legislature can pass laws, which they do not repeal even if the judiciary declares that they offend the Constitution.

If the theory is taken to its logical conclusions there would be some undesirable results.

 

6.4.4                 Checks and Balances

Instead of absolute separation of powers, our constitutional system adopts a notion of checks and balances where the powers of one branch can be challenged by another branch. This is what the system of checks and balances is all about. Each branch has an effect on the other. The following examples, which are not exhaustive, can be given.

1)       Legislative Branch

a)       Checks on the Executive

·         Impeachment power: Both the National Assembly and the Senate participate in the removal of the President and the Deputy President (art 145). Trial of impeachments is done by the Senate while the resolution is by the National Assembly.

·         National Assembly approves departmental appointments by the President: The Chief Justice, Diplomats, and cabinet Secretaries etc.

·         National Assembly approves treaties.

 

·         National Assembly approves the exercise of the power to declare war.

 

·         President must deliver annual address to Parliament.

 

b)       Checks on the Judiciary

 

·         National Assembly approves the appointment of the Chief Justice and Supreme Court Judges.

·         National Assembly has power to set jurisdiction of courts.

 

2)       Executive Branch

a)       Checks on the Legislature

 

·         President can veto a Bill passed by Parliament.

 

b)       Checks on the Judiciary

 

·         Power to appoint Chief Justice and Judges of the Supreme Court; and

 

·         Pardon power.

 

3)       Judicial Branch

a)       Checks on the Legislature

 

·         Declaration of statutes as unconstitutional

 

The Supreme Court of Kenya stated in Speaker of the Senate and Another v Attorney- General and 4 Others, “… as a legal and constitutional principle…Courts have the competence to pronounce on the compliance of a legislative body, with the processes for the passing of legislation.” It clarified this position by explaining that the court:

…will not question each and every procedural infraction that may occur in either of the Houses of Parliament. The Court cannot supervise the workings of Parliament. The institutional comity between the three arms of government must not be endangered by unwarranted intrusions into the workings of one arm by another.”

Hence,

 

No arm of government holds a position superior to the terms of the law: for in a constitutional democracy, it is the people’s will, as expressed in the due operation of all dimensions of the Constitution that must guide the functioning of the organs of state.”

·         Decide on election petition; and

 

·         Decide on vacation of office.

 

b)       Checks on the Executive

 

·         Judicial review; and

 

·         Supreme Court settles presidential election disputes.

Session 7

THE DOCTRINE OF PRECEDENT AND THE STARE DECISIS RULE IN THE COMMON LAW LEGAL SYSTEM

Introduction

As stated earlier, legal methods refer to the manner in which those who make, activate, or operate the law use the legal system to arrive at specific legal consequences. The process of debate of administration, which is intended to produce a particular interpretation of the law either in itself or in relation to application to specific facts, is part of the legal method. Legal method is best seen as the process of arriving at specific consequences using legal tools in a specific context.

The Major Trial Systems

Earlier, it was noted that there are two major legal systems adopted the world over, the Common Law and Civil Law. One of the key distinctions between these systems is that whereas the common law (which has been adopted in Kenya by dint of its colonial heritage) is adversarial, civil law is inquisitorial. Hence, before we address the concept of stare deicisis as used in the adversarial common law system, we shall commence by looking at the distinctions that exist between these two major systems in the manner in which the court processes are undertaken.

7.2.1                 Inquisitorial System

Inquisitorial trial is a method of legal practice in which the judge endeavours to discover facts while simultaneously representing the interests of the state in a trial. The presiding judge in the trial is not a passive recipient of information. Rather, he is primarily responsible for supervising the gathering of the evidence necessary to resolve the case. He actively steers the search for evidence and questions the witnesses, including the respondent or defendant. Lawyers play a more passive role, suggesting routes of inquiry for the presiding judge and following the judge's questioning with questioning of their own. Lawyers’ questioning is often brief because the judge tries to ask all relevant questions.

The inquisitorial system was first developed by the Catholic Church during the medieval period. The ecclesiastical courts in thirteenth-century England adopted the method of adjudication by requiring witnesses and defendants to take an inquisitorial oath administered by the judge, who then questioned the witnesses. In an inquisitorial oath, the witness swore to truthfully answer all questions asked of him or her. The system flourished in England into the sixteenth century, when it became infamous for its use in the Court of the Star Chamber, a court reserved for complex, contested cases. Under the reign of King Henry VIII, the power of the Star Chamber was expanded, and the court used torture to compel the taking of the inquisitorial oath. The Star Chamber was eventually eliminated as repugnant to basic liberty, and England gradually moved toward an adversarial system.

After the French Revolution, a more refined version of the inquisitorial system developed in France and Germany. From there it spread to the rest of continental Europe and many African, South American, and Asian countries. The inquisitorial system is now more widely used in the world.

The court procedures in an inquisitorial system vary from country to country. Most inquisitorial systems provide a full review of a case by an appeals court. In civil trials under either system of justice, the defendant, or respondent, may be required to testify. A trial in an inquisitorial system may last for months as the presiding judge gathers evidence in a series of hearings.

7.2.2                 Adversarial System

In the adversary trials, two or more opposing parties gather evidence and present the evidence, and their arguments, to a judge or jury. The judge or jury knows nothing of the litigation until the parties present their cases to the decision maker. The defendant in a criminal trial is not required to testify before the decision is given in the adversarial system.

The goal of both the adversarial system and the inquisitorial system is to find the truth. But the adversarial system seeks the truth by pitting the parties against each other in the hope that competition will reveal it, whereas the inquisitorial system seeks the truth by questioning those most familiar with the events in dispute.

The adversarial system places a premium on the individual rights of the accused, whereas the inquisitorial system places the rights of the accused secondary to the search for truth.

The most striking differences between the two systems can be found in criminal trials. In most inquisitorial systems, a criminal defendant does not have to answer questions about the crime itself but may be required to answer all other questions at trial. Many of these other questions concern the defendant's history and would be considered irrelevant and inadmissible in an adversarial system. A criminal defendant in an inquisitorial system is the first to testify. The defendant is allowed to see the government's case before testifying, and is usually eager to give her or his side of the story. In an adversarial system, the defendant is not required to testify and is not entitled to a complete examination of the government's case.

A criminal defendant is not presumed guilty in an inquisitorial system. Nevertheless, since a case would not be brought against a defendant unless there is evidence indicating guilt, the system does not require the Presumption of Innocence that is fundamental to the adversarial system.

The decision in an inquisitorial criminal trial is made by the collective vote of a certain number of professional judges and a small group of lay assessors (persons selected at random from the population). Neither the prosecution nor the defendant has an opportunity to question the lay assessors for bias. Generally, the judges vote after the lay assessors vote, so that they do not influence the conclusions of the lay assessors. A two-thirds majority is usually required to convict a criminal defendant, whereas a unanimous verdict is the norm in an adversarial system.

The inquisitorial system does not protect criminal defendants as much as the adversarial system. Prosecutors in the inquisitorial system do not have a personal incentive to win convictions for political gain, which can motivate prosecutors in an adversarial system.

Most scholars agree that the two systems generally reach the same results by different means.

 

Some countries, such as Italy, use a blend of adversarial and inquisitorial elements in their court system.

Historical Development of the Doctrine of Precedent within the Common Law System

The doctrine of precedent, that is, upholding decisions made in previous similar cases, have for many hundreds of years been important in the development of English law, but until the latter part of the nineteenth century were only persuasive; that is, a judge would be influenced by the decision in a previous case, but did not consider himself bound by it.

The modern doctrine of precedent, under which a judge is bound by the decision in a previous case, even if he considers it to be unjust or illogical, is of comparatively modern origin.

In the early days of common law, judges considered that their judgments were merely declaratory; common law was based on general custom, and they were merely enunciating what that custom was. This attitude left no room for the development of a doctrine of precedent. In any event, there was no method of recording judgments fully and accurately.

The development of printing and the improvement in the standards of reporting meant that from the sixteenth century onwards more attention was paid to decisions in previous cases.

By the early nineteenth century it had been accepted that regard must be paid to previous decisions and that it was not for the courts ‘to reject them and abandon all analogy to them’. Later in the nineteenth century two events occurred which laid the groundwork for the establishment of the system of binding precedent in England:

In 1865 the Council of Law Reporting was created, and this ensured that for the future there would be a consistent and reliable system of reporting cases. There had been many earlier series of reports, but their reliability varied considerably;

The whole system of courts was reorganised by the Judicature Acts 1873-1875 and the Appellate Jurisdiction Act 1876, and this made easier the task of recognising the hierarchy of courts.

This system was adopted in Kenya by virtue of the Judicature Act. It is provided in the Judicature Act that: Insofar as written laws do not extend or apply, the substance of the common law, the doctrines of equity and the statutes of general application in force in

England on the 12th Aug 1897, and the procedure and practice observed in courts of justice in England at that date will be applied.

Judicial Interpretation and Stare Decisis

This is the primary role of judges in the common law system. The best point to start while considering the role of judges in the common law system is the doctrine of precedent. Precedent refers to the idea that judges make law in the course of resolving disputes in common law indication.

The doctrine of precedent can best be summed up in the idea that in “like cases should be treated alike”. Therefore all things being equal cases with similar facts and issues in dispute should be disposed of consistently by the courts.

Under common law, the obligation on a Judge is that precedence must be followed whether the Judge agrees with that reasoning or not. In this regard precedent could either be binding to a Judge or it may merely be persuasive. Judges have a duty to follow binding precedents but not the persuasive ones. An example of a persuasive judgment would be that of another jurisdiction for example English Courts decisions are of a mere persuasive authority in Kenya.

When Judges follow binding precedents they observe the principle known as stare decisis (also known as the doctrine of binding precedence). This means that once an issue of law is decided in the courts, it will be normally be binding on courts lower down the hierarchy and in some circumstances on courts at the same level with the hierarchy. This doctrine signifies that decisions are to be followed because judges feel obligated to do so no matter their view on the merit of the precedent are they feel obligated to do so and not simply that precedents are to be followed because judges think that they are good solutions to be imitated.

The principle of stare decisis is therefore said to be paradoxical. On the one hand a court has the power to decide only the dispute before it and the decision that it announces is binding in like cases. On the other hand it is left to the court deciding future cases to determine whether those cases are like the prior case and therefore whether the prior case must be followed. The paradox is that a prior case binds the court but only if the court decides that the prior case is binding.

This paradox has led many lawyers to come to appreciate that the common law is not a set of fixed rules but rather a process. It is a process whereby later cases are decided in a way that seems consistent with prior cases, although it is only when the later cases have been decided that the true meaning of the prior cases becomes known. By continually deciding which cases are similar or dissimilar to prior cases, courts are in effect shaping the concept of the previously announced rules. These rules are defined as they are applied, and the law is therefore in a constant state of evolution, explication and elaboration. (Vandevlde K.J. Thinking like a lawyer Westview Press 1996 P 35).

The doctrine of stare decisis is fundamental to the common law system which is based on judge made law. It is what distinguishes common law system from civil law system. In the latter system the fundamental law is the legislation also known as Code and the obligation on the judges is to faithfully interpret the code rather than to follow precedent. By contrast in the former system it is the judge made law which is fundamental and the obligation of judges is to follow decisions made by courts high up in the hierarchy in the past.

Judicial Precedents

It is however important to note that not everything said by a judge when giving a judgment constitutes a precedent. This status is reserved for the Judges of superior courts’ pronouncement on the law.

A judge is only obliged to follow a precedent if:

 

(i)         There are numerous factual similarities between the earlier case and the one before him;

(ii)       The inevitable similarities are relevant.

 

(iii)     If the facts upon which the precedent is predicated are stated at a higher level of generality; for example in the prior case it was held that presence of a concealed pit on the land gave rise to a duty on the part of the landowner to warn a guest but the case before the court involved a guest who fell down a slope. The court characterized the prior case as involving “hazard rather than concealed pit. For that reason the decision of the prior case was binding on the case before the court.

(iv)     If the prior case is characterized not in terms of its facts but in terms of the underlying policy judgment. (For example landowner’s duty to warn guests of pits may be taken to mean an imposition of a duty on manufacturers to warn consumers on effects in products.

Ratio Dicidendi and Obiter Dictum

In giving judgment in a case, the judge will set out the facts of the case, state the law applicable to the facts and then provide his or her decision.

Rupert Cross says: “ratio decidendi is a rule of law expressly or impliedly treated by the judges as a necessary step in reaching his conclusion”. It is only the ratio decidendi (the legal reasoning or ground for the judicial decision) which is binding on later courts under the system of judicial precedent. Salmon defines: "the ratio decidendi may be described roughly as the rule of law applied by and acted on by the court, or the rule which the court regarded as governing the case.”

Any observation made by the judge on a legal question suggested by the case before him or her but not arising in such a manner as requiring a decision is known as obiter dictum (a saying by the way). An obiter dictum is a by-product of the original judgment. They are only remarks and opinions of the judge. A dictum is a rule of law stand by a judge which was neither expressly nor impliedly treated by him as a necessary step in reaching his conclusion. Obiter dicta are unrealistic and contrary to current practice. The rules of law based on “hypothetical facts” are mere dicta. If the result is the same, giving no affect on the decision, then it is “obiter dictum”.

There may several reasons for a decision provided by the judge in any given judgment and one must not assume that a reason can be regarded as 'obiter' because some other 'ratio' has been provided. Thus, it is not always easy to distinguish ratio decidendi from obiter dictum when evaluating the effects of a particular decision.

Good Hart propounded “material test". The rules of law based on "material facts" are ratio decidendi. It is the best method in finding "ratio".

Professor wambaugh propounded, on the other hand propounded the "reversal" test. According to this method, the decision and reasons given by the judge shall be reversed and observed. If the result is quite opposite, then it is "ratio". It is also the best way in finding "ratio" of case.

The search for the ratio of a case is a process of elucidation; one searches the judgment for the abstract principles of law which have led to the decision and which have been applied to the facts before the court.

As an example, in Donoghue v. Stevenson, a dead snail was in the bottle of ginger beer bought by a friend for Donoghue. She fell ill, and she sued the ginger beer manufacturer, Mr Stevenson. The House of Lords held that the manufacturer owed a duty of care to her, which was breached, because it was reasonably foreseeable that failure to ensure the product's safety would lead to harm of consumers. The ratio in the case would be that a person owes a duty of care to those who he can reasonably foresee will be affected by his actions.

Regarding to the obiter dicta of the case, Lord Atkin, one of the case’s judges, mentioned the “Neighbour Principle”, stating that a person is responsible not to harm another party or parties if he or she can directly affect them. In other word, the neighbour in this meaning is anybody who can be affected by the act or the omission of that person.

In Carlill v Carbolic Smoke Ball Company [1893), a case whether a woman who had used a smoke ball as prescribed could claim the advertised reward after catching influenza, Bowen

L.J. in the dicta said:

 

If I advertise to the world that my dog is lost, and that anybody who brings the dog to a particular place will be paid some money, are all the police or other persons whose business it is to find lost dogs to be expected to sit down and write me a note saying that they have accepted my proposal? Why, of course (not)!"

Methods of Avoiding Precedents

Judicial precedent is an important source of law as an original precedent is one which creates and applies a new rule. However, the later decisions, especially of the higher courts, can have a number of effects upon precedents. In particular, they may be:

(i)             Reversal - Where on appeal in the same case the decision is reversed, the initial decision will cease to have any effect.

(ii)           Overruling - This occurs where in a later case a higher court decides that the first case was wrongly decided

(iii)         Refusal to Follow - This arises where a court, not bound by the decision, cannot overrule it but does not wish to follow it so it simply refuses to follow the earlier decision.

(iv)          Distinguishing - It arises where an earlier case is rejected as authority, either because the material facts differ or because the statement of law in the previous case is too narrow to be properly applied to the new set of facts. Arguments for distinguishing a prior case mirror those for following it. These are:

a)     Differences between the two cases;

 

b)    Where similarities between the two cases are irrelevant;

 

c)     Where the precedent is characterized in the narrowest possible terms i.e. is not general;

d)    Where the policy judgment underlining the prior case does not apply to the current one

e)     Where if the precedent is applied to the case, stare decisis would also require that it is applied to other cases in which it will produce clearly undesirable results.

(v)            Explaining - It happens where a judge may seek to interpret an earlier decision before applying it or distinguishing it, thus the effect of the earlier case is varied in the circumstances of the present case.

(vi)          Per Incuriam - These are decisions made in error or mistakes and can be avoided.

E.g. a decision of the court that has been reached in total contradiction to the clear provisions of a statute is per incurium and may thus be avoided the courts.

Advantages and Disadvantages of Judicial Precedents

7.8.1                 Advantages

i)                    Certainty - Liberty to decide each case as one thinks right without any regard to principles laid down in previous similar cases would only result in a completely uncertain law in which no citizen would know his rights or liabilities until he

knew before what judge his case would come and could guess what view that judge would take on a consideration of the matter without any regard to previous decisions.

ii)                  Possibility of Growth - The system allows for new rules to be established and old rules to be adapted to meet new circumstances and the changing needs of society. Where a precedent is considered to be particularly valuable its scope can be extended in later cases: conversely, where a precedent is felt to be defective, its scope can be restricted by the process of distinguishing mentioned above.

iii)                Practicality - The rules of case-law that abound in our legal system do not derive from a particular theory of law, and do not attempt to deal with hypothetical circumstances. They are the result of the consideration of real situations which have come before the courts. Precedents are based on real facts unlike legislation and are thus practical.

iv)                 Wealth of Detailed Rules - No code of law could be devised which would provide the wealth of detail to be found in English case-law.

v)                   Uniformity - It brings uniformity to the law as similar cases are treated in similar manner.

7.8.2                 Disadvantages of Using Precedents

(i)      Rigidity - Once a rule has been laid down it is binding even if the decision is thought to be wrong, and altercation, other than by distinguishing, which is less than wholly satisfactory, is difficult. This disadvantage is modified to the extent that the Supreme Court is not bound by its own previous decisions, but people may be reluctant to bring appeals before the Supreme Court because of the intricacies of court processes that lead to that final appeal and, particularly bearing in mind that the Court will not usually overrule its own previous decision except in the most compelling circumstances. The possibility that case-law will be abrogated or modified by legislation alleviates the disadvantage of rigidity to some degree, but in practice it is rare for the legislation to interfere with case-law.

(ii)    Complexity - It is difficult to determine what exactly the ratio dicidendi is since in most cases, there are a number of reasons that determine how the court rules.

(iii)  Cases May Easily be Avoided - Cases can be easily avoided especially since it is possible to distinguish the facts in order just to avoid inconvenient precedents.

(iv)   Slowness of Growth - It does not allow for adaptation to Change easily. It may take a long time before a case comes to court in order to settle the question of what the appropriate law is. The system depends on litigation for rules to emerge. As litigation tends to be slow and expensive the body of case-law cannot grow quickly enough to meet modern demands. Where it is felt that a particular case has long been a precedent operates unfairly.

(v)     Bulkiness - There is so much law that no one can learn all of it. There is a danger that even an experienced lawyer may overlook some important rule in any given case. This is particularly so with those branches of law which have been developed mainly by case-law, as, for example, the law of torts.

Session 8

THE LEGAL PROFESSION IN KENYA

 

 

Discuss the Legal profession operates in Kenya

Session 9

APPROACHES TO INTEPRETATION AND NON- STATUTORY AIDS

Approaches to Interpretation

Although the common law legal system is referred to as being based on judge made law, it is statutory law which is increasingly at the centre of the system. Whereas the primary source of law within the common law system is unwritten law, written law has since medieval times been seen as a technique used to strengthen, interpret regulate or amend the common law.

Once a piece of legislation has been passed by Parliament and thereafter received the presidential assent, it enters the statute books and will be implemented by the relevant arm of government. Questions may however arise about the scope, meaning and applicability of legislation to particular factual situations. This is when the judiciary is usually called upon to interpret the statutes.

Therefore whereas it is common place to say that the creation of law is the role of parliament, the function of interpretation leaves the judiciary with a considerable degree of latitude in determining what that legislation is.

Scholars have expressed the view that different approaches should be adopted in interpreting different kinds of legislation e.g. penal legislation should be interpreted in favour of the accused in circumstances where words used in the law are ambiguous. It is rather ten accused criminals go scot-free than have one innocent person convicted. In social welfare legislations (e.g. Housing, Education, Medical etc.), the Judge should bear in mind the social utility or good to be achieved be the legislation.

Some of the approaches taken by judges include:

 

8.1.1                 Analytical/Logical Approach

In this approach, the words are to be given meaning as they appear. This theory considers the judge as a mere mechanical instrument whose function is only to pronounce the meaning of law as expressed in a statute.

8.1.2                 Social Approach

This theory advocates a view of judge as a social engineer and therefore in interpreting statue the judge must endeavour to discuss and give effect to the social utility or good intended to be achieved by the particular statute.

8.1.3                 Free/Intuition Approach

This is by giving the Judges freedom to interpret law. This school of thought states that in interpreting statutes, the judge should declare what he considers to be the law even if his perception may not be in line with the strict meaning of words appearing in the statute even to depart from the expressed language contained in the statue.

Non-Statutory Aid

These entail rules of interpretation and presumption that the courts use to construe statutes. The part that follows will cover the primary and secondary/subsidiary rules of interpretation.

Primary Rules of Interpretation of Statutes

·         Literal Rule,

·         Golden Rule,

·         Mischief Rule

8.3.1                 The Literal Rule

This rule is also referred to as the “plain meaning rule.” By the literal rule, words in statute must be given their plain, ordinary or literal meaning. The objective of the court is to discover the intention of Parliament as expressed in the words used. This approach will be used even if it produces absurdity or hardship, in which case the remedy is for Parliament to pass an amending statute.

One of the leading statements of the literal rule was made by Tindal CJ in the Sussex Peerage Case (1844) 11 Olefin 85:

The only rule for the construction of Acts of Parliament is, that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver.

Lord Esher in R v Judge of the City of London Court [1892] 1 QB 273 said:

If the words of an Act are clear then you must follow them even though they lead to a manifest absurdity. The court has nothing to do with the question whether the legislature has committed an absurdity.

In Whitely v. Chappell (1869), the defendant had voted in the name of a person who had died, but was found not guilty of the offence of personating ‘any person entitled to vote’: a dead person is not entitled to vote.

In The Matter of Advisory Opinion of the Court under Art 163 of the Constitution, The Supreme Court of Kenya stated:

A court may not arrogate to itself jurisdiction through the craft of interpretation or by way of endeavours to discern or interpret the intention of Parliament, where the legislation is clear and there is no ambiguity.

8.3.1.1       Advantages of the Literal Rule

(i)           It encourages draftsmen to be precise.

 

(ii)         It respects the words used by Parliament.

 

(iii)       It prevents judges “rewriting” statute law, which only Parliament can do.

 

(iv)       Alternative approaches would make it difficult to predict how doubtful provisions might be “rewritten” by judges.

Judges have tended excessively to emphasis the literal meaning of statutory provisions without giving due weight to their meaning in wider contexts.

8.3.1.2       Criticism of the Literal Rule

(i)           It assumes that parliamentary draftsmen are perfect.

 

(ii)         It ignores the limitations of language.

 

(iii)       It can lead to absurd or harsh decisions and Parliament has to pass an amending statute.

8.3.2                 The Golden Rule

The golden rule provides that if the words used are ambiguous the court should adopt an interpretation which avoids an absurd result.

Where the meaning of words in a statute, if strictly applied, would lead to an absurdity, the golden rule is that the courts are entitled to assume that Parliament did not intend such absurdity, and they will construe the Act to give it the meaning which Parliament intended.

In Grey v Pearson (1857) 6 HL Cas 61, Lord Wensleydale said:

 

The grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther.

This became known as “Lord Wensleydale’s golden rule”. In its second, broader sense, the court may modify the reading of words in order to avoid a repugnant situation as in Re Sigsworth (1935).

So, for example, the Offences against the Person Act 1861, provided that “whosoever being married shall marry another person during the life of the former husband or wife” is guilty of bigamy. Interpreted literally, this definition is absurd on two counts:

(i)      The phrase ‘shall marry another person’ is meaningless in the context, as the essence of bigamy is that a married person cannot marry again while his first marriage subsists.

(ii)    The reference to a ‘former’ husband or wife is quite inappropriate. The word ‘former’ suggests that the original marriage no longer exists, but if that were the case the person marrying again would not be guilty of bigamy.

Despite the slipshod draftsmanship of the Act, however, the intention was clear, and the courts have interpreted the relevant section as meaning that a person who purports to marry another while his or wife or husband is still alive is guilty of bigamy.

8.3.2.1       Advantages of the Golden Rule

(i)           It allows judges to avoid absurd or harsh results which would be produced by a literal reading.

(ii)         It allows judges to avoid repugnant situations, as in Re Sigsworth.

8.3.2.2       Criticism of the Golden Rule

(i)              There is no clear way to test the existence of absurdity, inconsistency or inconvenience, or to measure their quality or extent.

(ii)            Judges can “rewrite” statute law, which only Parliament is allowed to do.

 

8.3.3                 The Mischief Rule

The main aim of the rule is to determine the “mischief and defect” that the statute in question has set out to remedy, and what ruling would effectively implement this remedy.

The Mischief Rule is a rule of construction that judges can apply in statutory interpretation in order to discover Parliament's intention. In applying the rule, the court is essentially asking the question: what was the “mischief” that the previous law did not cover, which Parliament was seeking to remedy when it passed the law now being reviewed by the court?

The rule was first set out in Heydon’s Case [1584]76 ER 637, and allows the court to look at the state of the former law in order to discover the mischief in it which the present statute was designed to remedy. According to the Court:

For the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered:

(i)                  What was the common law before the making of the Act?

(ii)                What was the mischief and defect for which the common law did not provide?

(iii)              What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth. And,

(iv)              The true reason of the remedy.

And then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.

In Smith v. Hughes, for example, the Street Offences Act 1959 made it an offence for a prostitute to solicit men ‘in a street or public place.’ The question was whether a woman who had tapped on a balcony and hissed at men passing by was guilty of an offence under the Act. Parker, L.C.J., found her guilty:

I approach the matter by considering what is the mischief aimed at by this Act. Everybody knows that this was an Act intended to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes. Viewed in that way, it can matter little whether the prostitute is soliciting while in the street or standing in a doorway or on a balcony.

In the case mentioned, it was comparatively easy to apply the mischief rule as the circumstances which caused the passing of the Act were well known.

8.3.3.1       Advantages of Mischief Rule

(i)             Some view the Mischief Rule as the best method of interpretation of laws. The Law Commission in England sees it as a far more satisfactory way of interpreting acts as opposed to the Golden or Literal rules.

(ii)           It usually avoids unjust or absurd results in sentencing;

 

(iii)         It abides the rule that it is Parliament that makes law but the legislature interprets the same.

(iv)          It allows judges to put into effect the remedy Parliament chose to cure a problem in the common law.

8.3.3.2       Criticism of the mischief Rule

(i)                    It is seen to be out of date as it has been in use since the 16th century, when common law was the primary source of law and parliamentary supremacy was not established.

(ii)                  It gives too much power to the unelected judiciary which is argued to be undemocratic.

(iii)                In the 16^th century, the judiciary would often draft acts on behalf of the king and were therefore well qualified in what mischief the act was meant to remedy. This is not often the case in modern legal systems.

(iv)                 The rule can make the law uncertain, susceptible to the slippery slope.

 

Rules of Language

8.4.1                 Ejusdem generis

This Latin word means ‘of the same kinds, class, or nature’.

When a list of two or more specific descriptors is followed by more general descriptors, the otherwise wide meaning of the general descriptors must be restricted to the same class, if any, of the specific words that precede them.

For example, where "cars, motor bikes, and motor powered vehicles" are mentioned, the word "vehicles" would be interpreted in a limited sense (therefore vehicles cannot be interpreted as including airplanes).

When the Sunday Observance Act, 1677, provided that no “tradesman, artificer, workman, labourer or other person whatsoever” should do certain things, the general phrase “other person whatsoever” was held to refer only “persons within the class indicated by previous particular words’ and not, therefore, to include such persons as farmers or barbers”.

This rule reflects an attempt “to reconcile incompatibility between the specific and general words in view of the other rules of interpretation that all words in a statute are given effect if possible, that a statute is to be construed as a whole and that no words in a statute are presumed to be superfluous” (Tribhuwan Prakash Nayyar v. Union of India, AIR 1970 SC 540).

The Supreme Court of India in Amar Chandra v. Collector of Excise, Tripura (AIR 1972 SC) held that this rule applies when:

·         The statute contains an enumeration of specific words;

 

·         The subjects of enumeration constitute a class or category;

 

·         That class or category is not exhausted by the enumeration;

 

·         The general terms follow the enumeration;

 

·         There is no indication of a different legislative intent.

 

8.4.2                 Noscitur a sociis

The Latin phrase means ‘known from associates’. The rule is that the meaning of an unclear word or phrase is to be determined on the basis of the words or phrases surrounding it.

In Bourne v. Norwich Crematorium Ltd. (1967), Stamp J. put it thus:

Sentences are not mere collections of words to be taken out of the sentence, defined separately by reference to the dictionary or decided cases, and then put back into the sentence with the meaning you have assigned to them as separate words...

In Foster v. Diphwys Casson (1887) 18 QBD 428, the matter involved a statute which stated that explosives taken into a mine must be in a "case or canister". Here the defendant used a cloth bag. The courts had to consider whether a cloth bag was within the definition. Under noscitur a sociis, it was held that the bag could not have been within the statutory definition, because parliament's intention was referring to a case or container of the same strength as a canister.

In Muir v. Keay (1875) In this case the Refreshment House Act stated that, Houses, Rooms, Shops or other buildings kept open for public refreshment and entertainment must be licensed. The defendant had a place called “The cafe “where persons were found during the night being supplied with cigars, coffee, beers etc. The defendant argued that the place was not for entertainment as there was no music and dancing. Held: The court held that what was happening at the place was entertainment.

8.4.3                 Expressio unius est exclusio alterius

This Latin words mean ‘the express mention of one thing is the exclusion of another,’ and the rule is commonly expressed in the short form as ‘Expressio unius Rule’.

The rule means that the expression of one thing is the exclusion of another. The rule arises from the argument that if the legislature had meant to include a particular thing within the ambit of its legislation it would have referred to that thing expressly. The legislature's failure to mention the thing becomes grounds for inferring that it was deliberately excluded. Although there is no express exclusion, exclusion is implied.

When one or more things of a class are expressly mentioned others of the same class are excluded. Thus a statute granting certain rights to “police, fire, and sanitation employees” would be interpreted to exclude other public employees not enumerated from the legislation.

Other Approaches

8.5.1                 Purposive approach

The purposive approach is one that will “promote the general legislative purpose underlying the provisions” (per Lord Denning MR in Notham v London Borough of Barnet [1978] 1

WLR 220). There will be a comparison of readings of the provision in question based on the literal or grammatical meaning of words with readings based on a purposive approach.

In Pepper (Inspector of Taxes) v. Hart [1993] AC 593, Lord Browne-Wilkinson referred to “the purposive approach to construction now adopted by the courts in order to give effect to the true intentions of the Legislature.”

8.5.1.1       Advantages of the Purposive Approach

·         It gives effect to the true intentions of Parliament.

 

8.5.1.2       Criticism of the Purposive Approach

·         It can only be used if a judge can find Parliament’s intention in the statute or Parliamentary material.

·         Judges can “rewrite” statute law, which only Parliament is allowed to do.

 

8.5.2                 Integrated Rule of Interpretation/ the Contextual Approach

Sir Rupert Cross Statutory Interpretation (3rd edn, 1995), suggested that there was an integrated approach to interpretation:

The judge begins by using the grammatical and ordinary or technical meaning of the context of the statute; If this produces an absurd result then the judge may apply any secondary meaning possible; The judge may imply words into the statute or alter or ignore words to prevent a provision from being unintelligible, unworkable or absurd; In applying these rules the judge may resort to various aids and presumptions.

Importance of the Rules Analysed

The relative importance of the rules of interpretation is itself of considerable controversy which raises theoretical and substantive issues about the role of a judge, the law making dimension of interpretation and the threat this poses to the abstract supremacy of written law.

The controversy may be reduced into two positions: The first position represents the judge as a passive actor in the process of interpretation, merely giving the words of the Act their natural meaning and applying that meaning to the situation in dispute. This stresses a mechanical representation of interpretation, emphasising the impartiality involved in

adjudication. This model is mostly sympathetic to the adoption of literal style of interpretation.

The second model rejects the notion that the foregoing can be the only role for the judge. The second model represents the judge as a party who undertakes an active role in the task of interpretation. The model stresses the role of the Judge as an active participant in the process of creating legal meaning. In this regard the Judge can resort to the whole range of resources within the legal culture which may lead to references to social policy, economics and other broad administrative and political considerations of the consequences of the rules to be applied. This model suggests a dynamic role for the Judiciary.

It is most sympathetic to the techniques of interpretation which seek to realise the purpose and objectives of legislation. Whereas the first model provides no threat to the law making role of the legislature, the second model potentially threatens the supremacy of written law in that the judge may be seen as a law maker with the capacity to change or even to undermine the supremacy of the written law by resulting to sources and materials outside the statutory provisions and thereby threatening its status.

Session 10

PRESUPMTIONS, EXTRINSIC AID AND STATUTORY AIDS TO INTERRETATION OF STATUTES

Presumptions

This is a non-statutory aid to the interpretation of Statutes. In their attempt to construe statutes, courts of law are guided by certain presumptions which include:

·         The Statute was not intended to Change or Alter the Common Law - Even though many statutes have that express intention which will be followed. But unless express provision is made, or the new law is irreconcilable with the statute or common law;

·         There is a presumption against excluding the court from determining the case;

 

·         There is a presumption that standard common law defences are available for new crimes, e.g., duress, self-defence, etc.

·         The Statute was not intended to affect the Crown – e.g. where the rules on health & safety did not apply to NHS kitchens;

·         Presumption that mens rea (guilty mind) is required for criminal offences;

 

·         The statute was not intended to interfere with vested rights of individuals;

 

·         The statute was not intended to impose liability without fault;

 

·         The statute was not intended to have extra-territorial effect;

 

·         The statute was not intended to be inconsistent with international law;

 

·         An accused person is presumed innocent until proven or has pleaded guilty

 

·         All un-repealed statutes remain law.

 

In prince of Hanover v. Attorney general, all issue of the person were British citizens, the law was un-repealed, so it was still law that applied to a person with whose country we were at war.

·         There is a presumption of compensation being paid where a statute deprives a person of property;

·         There is a presumption of not granting officials arbitrary discretion;

 

·         There is a presumption that Acts do not interfere with rights to private property;

 

·         There is a presumption against retrospective legislation;

 

·         Penal laws should be construed in favour of the person whose liberty is threatened.

 

Extrinsic Aid to Interpretation of Statutes

9.2.1                 Law Commission Reports and White Papers

In England, these have been admissible since the case of Davis v. Johnson [1978] AC 264, which said that the report may be used to identify the mischief the legislation is intended to remedy but not to construe the enacting words’ and other travaux préparatoires provided that it is material in the public domain clearly intended to be the first stage in the legislative process. If the document is a treaty, a literal construction is in conflict with the purpose of the treaty, or if the legislation is ambiguous (Fothergill v. Monarch Airlines Ltd. [1980] 3 WLR 209).

9.2.2                 Hansard

Hansard has been officially used (judges used it before this case unofficially) since the case of Pepper v. Hart, in which the question was whether the taxable benefit of providing the children of teachers with free education should be taxed at the nominal extra cost to the school, or at the normal cost of the school's fees. It was decided using Hansard that it should be taxed at the lower cost.

In this case it was said that if Hansard "clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words", then it is an admissible aid to construction.

However, it was said that ‘I cannot foresee any statement other than the statement of the minister or other promoter of the Bill is likely to meet the criteria’.

In addition it was said that ‘if a minister clearly states the effect of a provision and there is no subsequent relevant amendment to the Bill or withdrawal of the statement it is reasonable to assume that Parliament passed the Bill on the basis the provision would have the stated effect.’

Hansard is, of course, not binding on the courts - there is no reason why they should not ignore the intent of Parliament unless it is expressed in a statute. Hansard has the same legal status as any other interpretative aid.

The question arises whether Pepper v. Hart affects stare decisis, that is to say whether a court can overrule an otherwise binding case on the basis of Hansard showing that the previous construction was wrong. If this question were to be answered in the affirmative, magistrates’ courts could overrule the House of Lords.

Common sense might suggest that incorrect interpretations should be overruled, but there is the issue of separation of powers - according to the traditional doctrine of the separation of powers the judiciary must be free to reject the Hansard material, since it is nothing more than an interpretative aid, which were it to be binding, would make Parliament both legislator and interpreter: legislation has traditionally been seen as an abstract document not tailored to particular situations, but rather being a list of abstract principles interpreted and applied in individual cases by the judiciary; Taken this way, to give Hansard such as status would apparently contravene HA Hayek's conception of the rule of law.

9.2.3                 Dictionary Definitions

This implies a literalist construction of statutes, since a purposive approach would seek to enforce what Parliament intended, rather than enforce the meaning of what it said.

9.2.4                 Legal Textbooks

 

 

9.2.5                 Treaties

This is so especially where the law was intended to enact the treaty. This is also now found under art 2 of the Constitution of Kenya (2010).

Statutory aid to Interpretation of Statutes

These are means which are available in the statutes to assist in understanding of legislation. They are outlined and discussed below.

Defines many common terms, and it provides that its definitions are to be used in construing any Act that contains the words defined (unless a subsequent Act defines them differently); it also provides, for example, a rebuttable presumption that terms in the masculine gender also include the feminine, and that the singular includes plural.

9.3.1                 Interpretation and General Provisions Act (Cap. 2)

The long title of this Act provides that it is an Act of Parliament to make provisions in regard to the construction, application and interpretation of written law, to make certain general provision with regard to such law and for like purposes.

This Act contains a definition of various terms that commonly occur in written laws. However, Cap 2 does not apply in the interpretation of the Constitution.

In Hutton v. Esher UDC 1973 the question was: ‘Could "land" include buildings for the purposes of compulsory purchase?’ The Interpretation Act (which is similar in purpose to the Interpretation and General Provisions Act in Kenya) said that land included buildings unless stated otherwise, so the buildings were purchased.

9.3.2                 Definition section in a particular statute

Most aids of parliament contain a definition section which gives the meaning of various words appearing in that statute. This is usually in either Section 2 or otherwise, in Section 3 of the statute.

9.3.3                 The definition of terms implied by the rest of the Act: the ‘context rule’.

This closely relates to the rule that the statute must be read as a whole. According to

Halsbury’s Laws of England, 4th edition, Butterworths 1995, Vol 44(1), Para 1484;

 

It is one of the linguistic canons applicable to the construction of legislation that an Act is to be read as a whole, so that an enactment within it is to be treated not as standing alone but as falling to be interpreted in its context as part of the Act. The essence of construction as a whole is that it enables the interpreter to perceive that a proposition in

one part of the Act is by implication modified by another provision elsewhere in the Act…

In Amalgamated Society of Engineers v Adelaide Steamship,14 Higgins J rightly observed thus,

The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we consider the result to be inconvenient or impolitic or improbable.

In Jesse Waweru Wahome and Others v. Kenya Engineers Registration Board and others,15 where Engineering Graduates from Masinde Muliro University and Egerton University Challenged the refusal by the Engineers Registration Board to register them as trained engineers, the Court observed:

Statutory construction is a holistic endeavour and the cardinal rule of construction is that a statute should be read as a harmonious whole, with its various parts being interpreted within their broader statutory context in a manner that furthers statutory purposes.

9.3.4                 Headings and Side-notes

These have minimal utility as they are included there by drafters who are not responsible for law-making.

9.3.5                 The short title

This is used for ease of reference and only has minimal aid to interpretation.

 

9.3.6                 The long title and preamble

Many Acts have preambles, and all Private Acts and all old Public Acts have long titles, but they cannot prevail over clear enacting words. For example, in Fisher v Raven 1964, the long title was used to decide that debtors for the purposes of Act were ordinary debtors.

 

 

¹⁴ (1920) 28 CLR 129 at 161-2.

¹⁵ PETITION NO. 149 OF 2011 consolidated with PETITION NO. 207 OF 2011.

Session 11

ALTERNATIVE DISPUTE RESOLUTION PROCESSES

Introduction

Alternative dispute resolution method commonly referred to ADR according to Justice Nyamu mean dispute resolution methods other than litigation and these include mediation, early neutral evaluation, mini-trial, expert determination adjudication and arbitration.

Article 159(2)(c) of the constitution states that “in exercising judicial authority, the courts and tribunals shall be guided by the following principle: alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional mechanisms shall be promoted.”

Alternative dispute resolution is also catered for under section 59A of the Civil Procedure Act and order 45A of the Civil Procedure Rules. All mediated agreements may be registered and enforced by the court under section 59D of the Civil Procedure subject to availability of mediators.

The Chief Justice speech on the same during presentation of the Progress Report in the Transformation of the Judiciary the need of Kenyans to engage ADR as means of dispute resolution said that:

I would like to point out that the Judiciary will not change until those who serve in it and the public change their attitude and behaviour. When we say that judicial authority is derived from the people the implication is that the people should be law abiding – make use of other fora of justice such as family, churches and mosques and other alternative dispute resolution mechanisms because court actions are, in their very nature, adversarial. Kenyans must see themselves as the change they wish to see in the Judiciary.

Advantages and Disadvantages of ADR

10.2.1             Advantages

Alternative dispute resolution methods have the following advantages over court litigation:

 

(i)            Speedy Dispute Resolution: - ADR is often quicker than going to trial; a dispute may be resolved in a matter of days or weeks instead of months or years. Litigation

through courts takes a lot of time. There are incidents where the cases have taken a long period of time leaving the parties frustrated lot.

(ii)          Cost Effectiveness: - ADR is often less expensive, saving the litigants court costs, attorney's fees and expert fees. Litigation through courts is very expensive. Most parties cannot pay the court fees and there alternative dispute resolution gives them an alternative way of conflict resolution that is pocket friendly.

(iii)        Control of the Outcome and Proceedings: - Alternative dispute resolution allows more participation and empowerment, allowing the parties the opportunity to tell their side of the story and have more control over the outcome.

(iv)         Flexibility of Procedures: - Alternative dispute permits the parties in choice of ADR processes and resolution of the dispute. Court litigation is sometimes too rigid requiring parties to follow the laid down procedures.

(v)           Enhanced Cooperation: - These methods of dispute resolution allow the parties to work together with the neutral to resolve the dispute and mutually agree to a remedy. The court process is adversarial and fails to propagate harmonious co-existence.

(vi)         Less Degree Involvement: - Alternative dispute resolution methods are often less stressful than litigation.

(vii)       Saves Courts Time: - An alternative dispute resolution method frees courts time to handle major cases and this helps in fast delivery of justice.

(viii)     Enhance Confidentiality: - Court cases, judgments and opinions are usually public record; the ADR process is confidential. If the parties settle through mediation or arbitration, no public record exists of what developed at the negotiation meetings or of the amount of the settlement.

(ix)         Customized Dispute Resolution: - International disputes can be resolved according to ground rules the parties agree upon in advance, thereby avoiding the uncertainty inherent in being subjected to the jurisdiction of foreign courts.

(x)           Less Work Place Distractions: - Workplace distractions and the emotional burdens imposed on the individuals involved in litigation, especially in employer-employee disputes, are minimized.

10.2.2             Limitation of ADR

However, alternative dispute resolution has some limitations namely: -

 

(i)      ADR may not be effective if it takes place before the parties have sufficient information to resolve the dispute,

(ii)    The neutral may charge a fee for his or her services.

(iii)  If the dispute is not resolved through ADR, the parties may then have to face the usual and traditional costs, such as attorney's fees and expert fees, lawsuits must be brought within specified periods of time, known as Statutes of Limitations and Parties must be careful not to let a Statute of Limitation run while a dispute is in an ADR process.

Conclusion

In conclusion, the advantage of alternative dispute resolution methods outweighs the litigation through court methods and should be encouraged. It greatly helps in the provision of access to justice. The bill of small claims court is at a very advanced stage in parliament and if it goes through, access to justice as a fundamental human would have achieved a milestone. Other jurisdictions like Zimbabwe, small court claims are already in operation and it has been very successful.

Session 12

ACCESS TO JUSTICE IN KENYA

Introduction

Access to justice can be defined as the right of individuals and groups to obtain a quick, effective and fair response to protect their rights prevent or solve disputes and control the abuse of power, through a transparent and efficient process, in which mechanisms are available, affordable and accountable. According to Jackline Martin (2007), access to justice involves both an open system of justice and also being able to fund the costs of the case.

Historical Aspects of Access to Justice

Access to justice can be equated to the right to fair and speedy trial. This was recognized by Magna Carta in 1202 where it was declared that “to no one will we sell, to no one will we deny the right of justice.” The Americans impressed by it declared it in their bill of rights that no person shall be deprived of life, liberty or property without due process of law and that the accused shall enjoy the right to speedy trial.

The right to fair and speedy trial was subsequently recognized by the Universal Declaration of Human Rights 1948, The United Nation Covenant on civil and Political Rights 1966 article 9(3) and the African Charter on Human and people rights 1981 article 7(1). It, therefore, means that the right to fair trial includes the right to speedy or trial within reasonable time. Most constitutions worldwide now recognize the right to fair hearing within a reasonable time.

In a democratic society as envisioned by Thomas Hobbes, where the governed relinquish a portion of their autonomy, the legal system is the guardian against abuses by those in position of power. Citizens agree to the limitations of their freedom in exchange for peaceful coexistence and they expect that when conflicts between or between the state and citizens arise, there is a place that is independent from undue influence, that is trustworthy and that has authority over all the parties. The courts in any democratic system are the place of refuge. Judiciary is primarily charged with administration of justice and protection of fundamental human rights.

Entails of Access to Justice

According to Tito (2011), traditionally access to justice embodied initially three components:

 

(i)                  That the rights-holders are aware of their legal rights and obligations and understand the processes of enforcing these rights (legal awareness),

(ii)                That the laws and policies are reflective of the peculiar needs and circumstances of the poor, excluded or the marginalized, and

(iii)              That there are institutions and structures in place through which the poor, excluded or marginalized can enforce their rights.

Constitutional Underpinning of Access to Justice in Kenya

Access to justice in Kenya is guided by article 48 of the Constitution of 2010. This article, “the State shall ensure access to justice for all persons, and if any fee is required, it shall be reasonable and shall not impede access.”

In provision of justice the parties concerned should be accorded fair hearing under article 50 of the Constitution. Access to justice is, therefore, a fundamental right under the bill of rights in Chapter Four.

The Constitution of 2010 recognizes the place of judiciary as an independent arm of the government apart from the executive and the legislature. Right from article 3, the Constitution vests sovereign power in of the people in the judiciary alongside other two arms of the government. This is unlike the repealed Constitution.

Article 159 provides that that judicial authority is derived from the people and vests in and shall be exercised by the courts and other tribunals established by or under the current Constitution. Judicial independence is entrenched by article 160. The guiding principles found under article 159 encapsulate the desire of and the will Kenyans hold for the courts. They provide that justice shall be done to all irrespective of the status, that justice shall not be delayed.

Alternative dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, justice shall be administered without

undue regard to procedural technicalities and the purpose and principles of the constitution shall be protected and promoted.

Judiciary Transformation Framework

It is based on the above the Judiciary under the aspired to achieve. Under the stewardship of Chief Justice Willy Mutunga, there were some achievements in addressing issues concerning access to justice. In the Judiciary Transformation Framework document (2012-2016), access to justice is given the first priority. The judiciary Transformation Framework document is anchored on four distinct but interdependent pillars and ten overlapping key result areas founded on the constitution, all these pillars have over overriding objective which is to achieve access to and expeditious delivery of justice to all. The four pillars are people focused delivery of justice, internal human resource capacity, infrastructure and resources and the use of ICT as enabler.

When delivering a speech during the progress report presentation, the Chief Justice acknowledges the weakness by judiciary by saying that “We found an institution so frail in its structures; so thin on resources; so low on its confidence; so deficient in integrity; so weak in its public support that to have expected it to deliver justice was to be wildly optimistic”. But there are challenges. These challenges include:

Drawbacks on Access to Justice in Kenya

10.6.1             Lack of legal literacy and publicity

Legal literacy is still very thin among the Kenyans. Knowledge of law belongs to the legal practitioners and a few educated elite. The ordinary 'Wanjiku' is disadvantaged and has always being ignorant of the laws of the land and yet ignorance of law is no defence. The efforts that are being done by the civil society and the government are very little. Kenyans are not aware of their constitutional rights and as such these rights are still trampled upon. Judiciary has for a long time remained an ivory tower. It has been aloof and separated from people. This trend made people to have phobia about the judiciary. In fact there are three places that people are said to fear to access because of the belief that when one goes to these places their return is no guaranteed. These places are the hospital, the police station and the courts. This perception has thrived due to lack of publicity about the judiciary.

Attempt to inform the public about the judiciary were begun by the former Chief Justice Evans Gicheru in what was called the judiciary open day. It did not succeed. To create public awareness about the judiciary the current Chief Justice organized the Judiciary marches day on 21st and 22nd, August 2012 in order to reach people. The theme of the marches day was taking justice to people and on these particular days all the court staff including the judges went out to meet people. They addressed people and there was question and answer sessions. Earlier on before the marches the Chief Justice had said through the media that “For a long time, the Judiciary had been isolated from the community that it served. This environment created a Judiciary that was unaccountable to the people. Poor management practices mushroomed as did opportunities for other arms of government to subvert justice. Through ongoing public outreach activities, the Judiciary seeks to develop its own voice. It will respond directly to the people and ultimately build faith in the institution and better deliver its mandate. Through a platform of dialogue and feedback, the Judiciary will nurture and sustain broad public support for its activities”. Therefore to create public awareness and publicity the judiciary has engaged media for instance the Kenya Law Reports that is responsible for publishing legal information materials is creating awareness about its existence so that people get informed. For easier access to information the judiciary can be reached by sending an inquiry to 5834 or emailing judiciary through its email address. Indeed these efforts should be applauded but still more is required not only from the judiciary but all other stakeholders for legal literacy to be achieved.

10.6.2             Procedural technicalities

Court procedures have for a long time been complex. They were procedural requirements that even qualified lawyers failed to comprehend and suits were suits were dismissed not because they did not have merit but people failed to follow procedural requirements. Sometimes dismissal on technicalities was quite unfair. In the case of Matiba v Moi the high court had allowed the applicant to file documents that had been signed on his behalf by his wife in an election petition. Moi appealed and the court of appeal threw out Matiba's case saying that documents signed by his wife were not authentic despite her being given power of attorney. This was a procedural technicality that stood on the way to access to justice.

The current Constitution did away to procedural technicalities. Under section 159 of the constitution (3)(b), justice shall be administered without undue regard to procedural technicalities. In the case of Jackson Kaliko Ndindio v Attorney General, Justice Ngungi observed that

Elsewhere in the new Constitution all courts are instructed to shun an obsession towards technical justice: Article 22 (3) (d) admonishes the court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities. Article 159 (2) (d) is in the same vein and instructs that justice shall be administered without undue regard to procedural technicalities.

In essence technicalities have been done away with so long as the applicant does not abuse the due process of law.

The same wish is captured in the Civil Procedure and the Appellate Jurisdiction Act under section 1A and B on overriding Objectives.

10.6.3             Poverty

Poverty is the greatest hindrance to justice. Although the constitutional principles state that justice shall be done to all regardless of the status as stated in article 159, majority of the Kenyans do not have even the modest mean to access justice and are kept away. The means of hiring a good lawyer are beyond reach of many and even where there is self-representation, the filing fees is prohibitive. Under article 22(1), every person has a right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed or is threatened. Sub article 2 of the same article provides that a person can act of behalf of another person whose rights have been violated. In sub article 3 the Chief Justice shall make rules to effect article 22 and no fee may be charged for commencing such proceedings. The Chief Justice is yet to make these rules. Article 50 sets out a right to a fair hearing, which includes the right of an accused person to have an advocate if it is in the interests of ensuring justice. This varies with the repealed law by ensuring that any accused person, regardless of the gravity of their crime may receive a court appointed lawyer if the situation requires it. Such cases may be those involving complex issues of fact or law; where the accused is unable to effectively conduct his or her own defence owing to disabilities or language difficulties or simply where the public interest requires that some form of legal aid be given to the accused because of the nature of the offence. In the case of

Davis Njoroge Macharia v. Republic, it was held by the court of appeal that “Under the new Constitution, state funded legal representation is a right in certain instances. Article 50(1) provides that an accused shall have an advocate assigned to him by the State and at state expense, if substantial injustice would otherwise result. Substantial injustice is not defined under the Constitution, however, provisions of international conventions that Kenya is signatory to are applicable by virtue of Article 2(6). Therefore provisions of the ICCPR and the commentaries by the Human Rights Committee may provide instances where legal aid is mandatory.” under the old constitution there was such provision under section77 but it clear and very specific like in the current constitution. In the criminal matters Advocates take on pauper briefs and again they are paid by the state.

In the Civil Procedure Act, Order 33 provides for one to sue as a pauper provided he or she meets the criteria set by the court. But again determining who is poor and who is not is very subjective.

10.6.4             Corruption and prejudice

There is a widely accepted principle of natural justice that there should be no hint of bias or prejudice in the administration and application of law.

The society has over the centuries evolved several principles of natural justice, three of the best known being: "Justice should not only be done but manifestly and undoubtedly be seen to be done" (Per Lord Hewart, C.J in R. v. Sussex Justices, 1924), "Judges, like Caesar's wife must be above suspicion" (Lord Bowen, J in Leeson v. General Council of Medical Education & Registration, 1889) and Justice must be rooted in confidence and confidence is destroyed when right-minded people go away thinking 'the Judge was biased' (Lord Denning, MR in Metropolitan Properties Ltd. v. Lannon, 1969).

Corruption has been the greatest hindrance to access to justice. There has a perception that justice has been for sale to the highest bidder hence the concept “why hire a lawyer when one can pay a judge”. Corruption in the judiciary is perceived to be practiced by the judicial officers, the paralegals and the stakeholders. Justice has been for the selected few living the poor people robbed and feeling helpless. The Ringera Commission sent a few officers home but unfortunately it never succeeded.

It is encouraging that the current Constitution sets high moral and professional standards for the judicial officers under chapter six and ten respectively. Those who were in the office prior to the commencement of the new constitution are being vetted and some have been sent home. Those who are being recruited are expected to have met the requirements of chapter six and ten and while in the office are expected to maintain high integrity and reject being compromised. Judiciary is now independent from other arms and the judicial officers are now paid well to avoid temptation. The Chief Justice has introduced measures to redeem the judiciary image and has told those under him to either change or perish. The public perception of corruption in judiciary is changing. In his speech during the delivery of Progress Report, the Chief Justice said this “ The ends of justice cannot be met when the Judiciary not only suffers an integrity deficit but is also perceived as the playground of the corrupt and the refuge of the inept. Corruption corrodes our humanity, undermines our institutions and sabotages our economy. In my inaugural address as Chief Justice, I pledged that never again should it be possible to speak about corruption and the Judiciary in the same breath. I meant”.

10.6.5             Inadequacy in Infrastructure

The judiciary is so frail infrastructure. To access the courts is a problem to those in rural areas as they are concentrated in urban areas. People have to walk long distances in the search of justice. The existing court buildings are inadequate and the judicial officers are forced to hear matters in the chambers instead of open courts. These hampers access to justice.

Currently, the judiciary is addressing the above issue by building more courts which are modern. Areas such as Garissa and Wajir now have mobile courts. With the more courts being built, the courts such as court of appeal, Industrial court and environment and land court are being decentralized in order to reach people

The Chief Justice while accepting the limitation of court building observed that “In pursuing the important objective of bringing justice closer to the people, we are establishing 14 new courts in places where the Judiciary has never before had a footprint. Additionally, 8 mobiles courts have been set up and 38 new vehicles released to serve court stations in historically marginalized areas. For the first time in Kenya’s history, a judge of the High Court of Kenya

has been posted to Garissa. More court stations will be subsequently established in Lodwar, Isiolo and other marginal districts including Archer’s Post, Wamba, Kakuma, Lokitaung, Lokichoggio and Loitoktok, as a way to reduce the cost of justice for litigants”.

10.6.6             Insufficiency in Personnel

The population of Kenya currently is slightly over 40 million. The number of judicial officers to serve this population has been very small. This has been partly due to the institution being starved off the resources and statutory regulations for example the Judicature Act which restricted the number of court of appeal to fourteen and the high court ones to 70. The Magistrates were also very less. These led to backlog of cases as the judicial officers were overburdened.

The problem has been addressed by entrenching the independence of the judiciary in the constitution and empowering it with more resources to recruit and train more judicial officers. There has been amendment to the judicature Act to allow employment of more judicial officers and lately there has been massive recruitment of judges and magistrate. Now there are special courts like Environment and Land Court and Industrial courts that have been established constitutionally to speed up cases. The Chief Justice using the powers donated to his has set up special divisions such as constitutional division, Criminal Division and Commercial division to speed up the hearing of the matters. Additionally, the judges have been given the Legal Researchers to undertake the research work.

10.6.7             Problem of Language

The legal profession's language has been the most un-understood. It begins with the drafters, lawyers down to the judicial officers. It is very common to come across the words as importunes, mutatis mutandis, order nisi and others that only the legal mind understands. According to Ann Asugah “our legislation is drafted in wordy fashion and uses archaic terms”. Sections can easily be broken down to subsections for clarity of ideas being communicated and for easy of interpretation. There is therefore need for drafters to deliberately adopt a more plain methodology of drafting to effectively communicate government policy to citizens. Until that happens, the citizenry will always view the law as

a preserve of lawyers and the courts. An informed citizenry helps in the growth of economy and the drafters need have their job well cut in this respect.

10.6.8             Limitation in Jurisdiction

According to Odiwour Kelly, Jurisdiction is the power of different courts to hear and determine dispute. Jurisdiction can either be geographical, functional, subject matter and pecuniary”. In the case of Owners and Masters of the Motor Vessel Lilian v Caltex Oil Kenya ltd (1989) KLR 1, it was held that:

The question of jurisdiction is a threshold issue and must be determined by a judge at the threshold stage, using such evidence as may be placed before him by parties. It is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court is then obliged to decide on the matters and where it does not have jurisdiction it should down its tools.

Jurisdiction limits other judicial officers’ powers to hear cases. Section five of the Judicature Act determines the jurisdiction of magistrates’ courts. Until the recent amendment through Act number 12 of 2012, jurisdiction of the magistrates was limited to Kshs 3,000,000/- being the highest but now the highest is Kshs 7,000,000/- for the Chief Magistrate. Limited pecuniary jurisdiction restricted matters that could be heard in the lower court but now things have changed and the lower court can hear matters that they could not hear before.

In the high court, the Chief Justice Evans Gicheru at one time through the Kenya Gazette made some practice directions that matters concerning constitution and judicial review should be filed in Nairobi. This was seen as protecting the government’s interests and seemed to interfere with the independence of judges. It interfered with access to justice and advocates made noise until he withdrew the same. Before the withdraw of the same the high court Kisumu in the case of John Moses Opiyo v Attorney General Misc. application no. 175 of 2006 (UR) had held that:

It need not to be mentioned that the constitution of Kenya is the supreme law and takes precedence over all other laws. Rule 5A of order 46 of the Civil Procedure Rules cannot reign supreme over the Constitution. In any event, it is archaic and does not conform to the modern development. It is irrelevant in today's Kenya and goes contrary to the judiciary policy of accessing justice to the people expanding the administration of justice to the furthest remotest part of the Republic”

Whereas jurisdiction is good because it gives power to court to adjudicate, it restricts the power of court more so territorial jurisdiction.

10.6.9             Problem of Utilisation of Information Communication Technology According to Gladys Shollei, there is a disconnection between judicial reform mission and ICT investment. Judiciary has been left back in form of technological developments and such access to justice has been affected. The magistrates and the judges’ record proceedings manually and the registries handle files manually. Files get lost or misfiled.

Currently there is massive investment in information technology. There is teleconferencing and the records are being digitized. In the judiciary transformation framework ICT infrastructure occupies the fourth pillar that will transform the judiciary

10.6.10         Weak and Unreformed Stake Holders

There are several players that are involved in the administration of justice. These include the office of Director of Public Prosecution, The Attorney General, The Policy, the children officers, the prisons and the probation officers. The police as the investigating department sometimes do poor investigation and gives weak evidence. The prosecution department does not have enough and qualified prosecutors. In the criminal law the standard of evidence required is very high and therefore many accused persons are acquitted to lack of evidence and poor investigations. Recently, Doricas Oduor who led a committee to study the files of sexual offences committed during post-election violence observed that most of the cases could not meet the threshold of prosecution as there was no strong evidence.

10.6.11         Lack of Independence and impunity

In the case of Independent Jamaica Council for Human Rights v Marshall Burnett (2005) UKPC 3, the independence of judges was said by the Privy Council to be all but universally recognized feature of rule of law. Indeed in a democratic society, independency of judiciary is paramount.

Judiciary as an organ of the government has operated at the mercy of the government. The judges were appointed by the by the executive and dismissed at will in the event they operated independently. This affected the delivery of justice especially in judicial review matters. The judges had to rule in favour of the executive. In the Nyayo era cases could be decided at night and mostly the judiciary only implemented the executives’ wishes. In Busia

the Magistrate who refused to follow Moody Awori’s order and release the accused but refused was arbitrary transferred.

Things seem to be changing due to the new constitution. Lack of independence in deciding cases has led to many judges to go home during the vetting of judicial officers and the vetting process is ongoing and many are set to be declared unfit to be judicial officers

10.6.12         Delay in Dispute Resolution

Justice delayed is justice denied. Delay of delivering judgments and rulings is very rampant in the judiciary. There are cases that have stayed as long as thirty years especially land matters. As a result many families have suffered. During the vetting of justice Ibrahim and Nambuye, the two officers were said to be very competent but delay in delivering decisions made the vetting board sent them home. In assessing delay caused by justice Ibrahim, the vetting board observed that “the delays were unacceptable, carried like a hump on a camel’s back from one posting to the next. Literally, hundreds of litigants from every walk of life felt robbed of their right to have their cases finally determined”. Indeed there are cases where matters are adjourned and generally stood over with no apparent reasons.

To remedy the above the judicial officers are to sign contract and above all the constitution is very clear on the need to speed up justice process. There is a massive recruitment of judicial officers and the judicial officers are supposed to make decisions within a particular time frame. The “Wanjiku” have been empowered to communicate with the Chief Justice and the office of ombudsman in the event of delay in delivering judgments.

Lastly but of more important, Kenyans like litigating, matters that could be handled through alternative dispute resolution mechanisms find themselves in court and this in itself hampers access to justice as courts time, efforts and resources are wasted.

LEGAL SYSTEMS & METHODS

 

Session 1

INTRODUCTION TO LEGAL SYSTEMS AND LEGAL METHODS

What is the Essence of Legal Systems & Legal Methods?

The legal system of any country can be described as the set of rules of substance and procedure as well as the institutions relating to the governance of social behaviour and resolution of disputes which arise in the process. It also necessarily includes the underlined social values and attitudes which affect the operations of such values.

Legal methods on the other hand refer to the manner in which those who make, activate or operate the law use the legal system to arrive at specific legal consequences. This necessarily involves rules of interpretation and other legal tools used to arrive at the desired legal consequences.

Legal systems therefore deal with “what” and “why” of law while legal methods deal with “how” of law.

The Essence of the Legal System in the Society

Man is a social being. He is part and parcel of society which has its own structure and organisation. Society is primarily based on order which order is achieved and maintained through social rules. Man’s behaviour is closely controlled, either directly or indirectly through moral standards, religious doctrines, social edicts and customs as well as legal rules.

In today’s complex society, legal rules are especially significant and it is difficult to find any area of society which is completely free from legal control. There is therefore undeniable and manifest relationship between law and society and the individual members of society.

To a law student society is a conglomeration of people, institutions and other social phenomena in the midst of which law occupies a central place holding these social arrangements together in an orderly fashion.

Law is however only one part of the overall social structure as there are other social elements and forces. In addition to law, there are various and diverse social phenomena all of which form part of the entire social structure for example political institutions, economic and commercial institutions, religious institutions etcetera. These other institutions or social phenomena are however not completely free from legal control or influence.

Law plays an important role in the definition of all kinds of social relationships between individuals and also between groups.

In the early days law as we know today did not exist. The early man was self-sufficient in his wants. However as time went by need arose for specialisation in production of human necessaries and this in turn gave rise to social relationships such as trade and others for example emergency families and other units in the society. As a consequence there arose conflicts of interest and these necessitated the development of a system of social control for purposes of preserving the society itself.

As the social groups became more sophisticated and complex, there occurred increase in occupational specialisation and division of labour and as a consequence legal rules became even more sophisticated and complex. This is because just as society is dynamic so is the law. The law must always change in tandem with societal change if it is to stay relevant.

What is Law?

Although scholars do differ in their analysis of law, there is general consensus that a legal order must provide for authorisation and recognition of legitimate authority, provide means of resolving disputes and also mechanisms for facilitating interpersonal relationships including adaptation to change.

There is no definition of law which has achieved universal acceptability but different approaches have been developed and adopted in an attempt to explain the meaning and

functions of law. What such attempts mostly achieve is to define the characteristics of the law and also indicate the legal orientation of the person defining it.

Generally the orientations are either defined as positivism and naturalism.

 

1.3.1                 Legal Positivism

Legal positivism is a philosophy of law that emphasizes the conventional nature of law - that it is socially constructed. According to legal positivism, law is synonymous with positive norms, that is, norms made by the legislator or considered as common law or case law.

According to Austin, positive law is a series of both explicit and implicit commands from a higher authority. The law reflects the sovereign's wishes and is based on the sovereign's power. Backed by sanctions and punishment,

According to one Salmond, law is a body of principles recognized and applied by the state in the administration of justice.

According to another scholar called Holland law is the rules of external human action enforced by the sovereign political authority. Similarly, Austin defines law as a command of the sovereign that is backed by sanction.

Panton on the other hand opines that law consists of a body of rules which are seen to operate as binding rules in the community and by means of which sufficient compliance with the rules may be secured to enable the set of rules to be seen as binding.

Hart has defined law in terms of primary and secondary rules which govern the state and the conduct of people.

1.3.2                 Natural Law Theory

Naturalism or natural law theory is a philosophy of law that focuses on the laws of nature. This school of jurisprudence represents the belief that there are inherent laws that are common to all societies, whether or not they are written down or officially enacted. This school of thought tells us that law is rational and reasonable.

According to natural law legal theory, the authority of legal standards necessarily derives, at least in part, from considerations having to do with the moral merit of those standards. The

natural law is comprised of those precepts of the eternal law that govern the behaviour of beings possessing reason and free will.

There are a number of different kinds of natural law legal theories, differing from each other with respect to the role that morality plays in determining the authority of legal norms. Classical natural law theory such as the theory of Thomas Aquinas focuses on the overlap between natural law moral and legal theories. In contrast, the procedural naturalism of Lon

L. Fuller is a rejection of the conceptual naturalist idea that there are necessary substantive universe is ordered."

 

Divine law is concerned with those standards that must be satisfied by

The first precept of the natural law, according to Aquinas, is the somewhat vacuous imperative to do good and avoid evil. Here it is worth noting that Aquinas holds a natural law theory of morality: what is good and evil, according to Aquinas, is derived from the rational nature of human beings. Good and evil are thus both objective and universal.

In his 1958 debate with Hart and more fully in The Morality of Law (1964), Fuller sought to steer a middle course between traditional natural law theory and legal positivism. Like most legal academics of his day, Fuller rejected traditional religious forms of natural law theory, which view human law as rooted in a rationally knowable and universally binding "higher law" that derives from God. He also rejected the idea, found in some traditional natural law theorists and famously endorsed by Martin Luther King, Jr. in his Letter from Birmingham Jail, that an unjust law is not a law. On the other hand, Fuller also denied the core claim of legal positivism that there is no necessary connection between law and morality. According to Fuller, certain moral standards, which he calls "principles of legality," are built into the very concept of law, so that nothing counts as genuine law that fails to meet these standards. In virtue of these principles of legality, there is an inner morality to the law that imposes a minimal morality of fairness. Some laws, he admits, may be so wicked or unjust that they should not be obeyed. But even in these cases, he argues, there are positive features of the law that impose a defensible moral duty to obey them.

 

that does not wildly diverge from their obvious or apparent meaning.[3] These are Fuller's "principles of legality." Together, he argues, they guarantee that all law will embody certain moral standards of respect, fairness, and predictability that constitute important aspects of the rule of law.

Functions of Law in Society

Structuring and controlling public power - Constitution, admin law etc. do these functions

 

(i)                  Facilitating and effectuating private relationships: family law etc.;

(ii)                Resolving social conflicts;

(iii)                Maintains social control;

(iv)               Protects public order;

(v)                 To resolve disputes;

(vi)               Protects certainty of systems;

(vii)             Facilitates orderly change;

(viii)           Brings out justice in society;

(ix)               Outlines what the government can do and what it cannot do.

 

Classification of Law

1.5.1                 Private and Public law

Public law consists of those aspects of law concerned with the regulation of the relationship between the state and persons/citizens. They include constitutional law and Administrative law.

Private law on the other hand is primarily concerned with the regulation of relationships between persons as in people inter se for example law of contract etcetera

1.5.2                 Criminal versus Civil Law

Criminal law is concerned with the definition, prevention, detection and punishment of crime for example criminal law as codified in the penal code. With the exception of where the court allows private prosecution, a criminal case is initiated, not by the injured party, but the state. Thus, criminal matter will be titled Republic v. X (The Accused).

In criminal litigation, the burden of proof is always on the state. The state must prove that the defendant is guilty. The defendant is assumed to be innocent and needs to prove nothing. If the There are some exceptions however. (Thus, if defendant wishes to claim that he/she is insane, and therefore not guilty, he/she bears the burden of proving his/her insanity. Other exceptions include defendants who claim self-defence or duress). In criminal litigation, the state must also prove that the defendant satisfied each element of the statutory definition of the crime, and the defendant's participation, “beyond a reasonable doubt.”

Civil law, on the other hand, is primarily concerned with the regulation of relationship between persons. The matter is initiated by the individual who claims injury/violation of his right. Civil matters are referred to as X (plaintiff/claimant v. Y (Defendant/Respondent).

In civil litigation, the burden of proof is initially on the plaintiff. However, there are a number of technical situations in which the burden shifts to the defendant. For example, when the plaintiff has made a prima facie case, the burden shifts to the defendant to refute or rebut the plaintiff's evidence.

In civil litigation, the plaintiff wins if the preponderance of the evidence favours the plaintiff. For example, if the judge believes that there is more than a 50% probability that the defendant was negligent in causing the plaintiff's injury, the plaintiff wins. This is a very low standard, compared to criminal law.

1.5.3                 Substantive versus Procedural Law

Substantive law is concerned with the definition of legal rights, obligations and remedies for example land law. Procedural or Adjectival law, on the other hand is concerned with the procedure or steps to be followed in the enforcement of rights and obligations defined by

substantive law. For example law of evidence and law of procedure. It comprises the set of rules that govern the proceedings of the court in criminal lawsuits as well as civil and administrative proceedings. The court needs to conform to the standards setup by procedural law, while during the proceedings. These rules ensure fair practice and consistency in the "due process".

Whereas substantive law deals with the legal relationship between people or the people and the state by defining the rights and duties of the people, procedural law lays down the rules with the help of which they are enforced.

1.5.4                 Statutory and Non-Statutory Laws

There are two basic forms of the law: statutory law and non-statutory law (or common law). Statutory law is the formal written law of a country, written by that country’s legislative authority, and is ratified by the highest executive in the government, before being published. Typically, statutes command, prohibit, or declare policy. Statutes are sometimes referred to as legislation or "black letter” law.

In non-statutory forms of the law, or common law legal systems, judges have the authority and duty to decide what the law is when there is no other authoritative statement of the law. Non-statutory law forms a major part of the legal systems of those countries of the world that have at one time been territories or colonies of the British Empire (with the exception of Malta, Scotland and Quebec). Common law is notable for its inclusion of extensive non- statutory law that reflects precedent derived from centuries of judgments by working jurists.

1.5.5                 Municipal and International Law

Municipal law comprises of domestic laws applicable within a given state. International law regulates legal relations at international level.

a)       Monism and Dualism

 

Under the Vienna Convention on the Law of Treaties, states are committed towards respecting treaties that they make and to determine their application by their own legislative, executive and judicial institutions (art 28 of the Vienna Convention).

Yet the Convention does not deal with the way the States have to integrate international law into their internal/municipal systems. This matter is left to be determined upon by the States themselves. This has necessarily given States the leverage to determine how to go about it.

In regards to application of international law in national systems, states are considered to either be monist or dualists. In Monist States, international and national legal systems are unified into one body of law applied by the national courts. Although there is a clear division between internal and international laws, there is no need for translating the international law into a national law in these systems.

In dualist states, there is a difference between internal and international law. Unlike monism, there is a need for the translation of international law into national law. Unless the translation takes place, the international law is not accepted. Moreover, an international treaty is not accepted in dualist state if it is not adapted as a national law.

b)      Distinction between International Law and Municipal Law

 

There are substantive differences between international law and municipal (or domestic) law. Understanding the uniqueness of international law in relation to municipal law helps one to better understand the nature and process of international law. These may be:

i)                    Municipal law regulates relations within a country (intra-state), while international law regulates relations between countries (inter-state);

ii)                  Regarding the processes used to make law, municipal law are made by national organs such as parliament or decisions of courts. In case of international law, treaty-making is the principal role although customary international law may be deemed from states’ practice.

iii)                In relation to the obligations on parties, international law (save for international criminal law) is about state obligation while municipal law largely deal with individuals’ rights and obligations under state/national law.

iv)                 International law is generally enforced through international mechanisms while municipal laws are generally enforced through national mechanisms like local courts and tribunals. The principal feature of municipal law is the existence of a legislature and a court system that can settle legal disputes and enforce the law.

At the international level, however, there is no legislature in existence and it is by way of agreements between countries (treaties) that international law is made.

v)                   The lack of an enforcement mechanism akin to a police force at the international level impedes coercive enforcement. The court system at the international level is one that relies on the acquiescence of the countries to both its jurisdiction and to carrying out the decisions of the court. The court system is well-established at the international level and respected but it lacks the ability to compel a country to come before it, unlike courts in a municipal system which can require a government, company or individual to appear before it.

vi)                 The role of politics in international law influences the character of international law profoundly and is more likely to reflect the political interests of the countries than might be the case at the municipal level. International law is made by way of political agreements (treaties) and will be supported or ignored according to the political interests of a country.

vii)               Municipal law is hierarchical or vertical - the legislature is in a position of supremacy and enacts binding legislation. International law is horizontal - all states are sovereign and equal.

The distinction between the branches have nonetheless narrowed. Currently, the sphere of international law has expanded to regulation of matters that were once thought to be the preserve of municipal law. For example, how a state treats its citizens has become a subject of international law through the operation of international human rights law. International criminal law also deal with individual’s responsibility rather than the states’.

Session 2

THE MAJOR LEGAL SYSTEMS OF THE WORLD

Introduction

Most nations today follow one of two major legal traditions: common law or civil law. The common law tradition emerged in England during the middle Ages and was applied within British colonies across continents. The civil law tradition developed in continental Europe at the same time and was applied in the colonies of European imperial powers such as Spain and Portugal. Civil law was also adopted in the nineteenth and twentieth centuries by countries formerly possessing distinctive legal traditions, such as Russia and Japan, which sought to reform their legal systems in order to gain economic and political power comparable to that of Western European nation-states.

The Common Law and Civil Law Legal Systems

2.2.1                 Common Law System

Common law traces its roots to the medieval idea that the law as handed down from the king's courts represented the common custom of the people. It evolved chiefly from three English Crown courts (common law courts) of the twelfth and thirteenth centuries: the Exchequer, the King's Bench, and the Common Pleas.

Early common-law procedure was governed by a complex system of pleading, under which only the offenses specified in authorized writs could be litigated. Complainants were required to satisfy all the specifications of a writ before they were allowed access to a common-law court. This system was replaced in England in mid-1800s.

The court of equity, which were instituted to provide relief to litigants in cases where common-law relief was unavailable, later merged with common-law courts to constitute the English legal system. This consolidation of jurisdiction over most legal disputes into several courts was the framework for the modern Anglo-American judicial system.

Notable of the common-law system, courts base their decisions on prior judicial pronouncements rather than on legislative enactments. Where a statute governs the dispute, judicial interpretation of that statute determines how the law applies. Common-law judges

rely on their predecessors' decisions of actual controversies, rather than on abstract codes or texts, to guide them in applying the law. Common-law judges find the grounds for their decisions in law reports, which contain decisions of past controversies. Under the doctrine of Stare Decisis, common-law judges are obliged to adhere to previously decided cases, or precedents, where the facts are substantially the same. A court's decision is binding authority for similar cases decided by the same court or by lower courts within the same jurisdiction. The decision is not binding on courts of higher rank within that jurisdiction or in other jurisdictions, but it may be considered as persuasive authority.

Because common-law decisions deal with everyday situations as they occur, social changes, inventions, and discoveries make it necessary for judges sometimes to look outside reported decisions for guidance in a case of first impression (previously undetermined legal issue). The common-law system allows judges to look to other jurisdictions or to draw upon past or present judicial experience for analogies to help in making a decision. This flexibility allows common law to deal with changes that lead to unanticipated controversies. At the same time, stare decisis provides certainty, uniformity, and predictability and makes for a stable legal environment.

arguments and evidence. Both parties present their cases before a neutral fact finder, either a judge or a jury. The judge or jury evaluates the evidence, applies the appropriate law to the facts, and renders a judgment in favour of one of the parties. Following the decision, either party may appeal the decision to a higher court. Appellate courts in a common-law system may review only findings of law, not determinations of fact.

Thus, common law systems place great weight on court decisions, which are considered ‘law’ with the same force of law as statutes. Common law courts have had the authority to make law where no legislative statute exists, and statutes mean what courts interpret them to mean.

2.2.2                 Civil Law Systems

Also referred to as the Roman-Germanic Law or Continental European System, this is a legal system inspired by Roman and Germanic law and whose the primary feature is that laws are written into a collection, codified, and not (as in common law) interpreted by judges.

The principle of civil law is to provide all citizens with an accessible and written collection of the laws which apply to them and which judges must follow. It is the most widespread system of law in the world, in force in various forms in about 150 countries.

Conceptually, it is the group of legal ideas and systems ultimately derived from the Code of Justinian, but heavily overlaid by Germanic, ecclesiastical, feudal, and local practices,¹ as well as doctrinal strains such as natural law, codification, and legislative positivism.

Materially, civil law proceeds from abstractions and formulated general principles and distinguishes substantive rules from procedural rules. It holds legislation as the primary source of law, and the court system is usually inquisitorial, unbound by precedent, and composed of specially trained judicial officers with a limited authority to interpret law.

Juries separate from the judges are not used, although in some cases, volunteer lay judges participate along with legally trained career judges.

2.2.3                 Comparison between the Common Law System and the Civil Law Legal System

The difference between civil law and common law lies not just in the mere fact of codification, but in the methodological approach to codes and statutes. In civil law countries, legislation is seen as the primary source of law. By default, courts thus base their judgments on the provisions of codes and statutes, from which solutions in particular cases are to be derived. Courts thus have to reason extensively on the basis of general rules and principles of the code, often drawing analogies from statutory provisions to fill lacunae and to achieve coherence. By contrast, in the common law system, cases are the primary source of law, while statutes are only seen as incursions into the common law and thus interpreted narrowly.

 

¹ Charles Arnold Baker, The Companion to British History, s. v. "Civilian" (London: Routledge, 2001), 308.

With regard to precedents, there is a very strong reliance to them in the common law

In civil law systems, statutes set the general principles of the law expressly by stating them; the courts then make their own interpretations of those general principles afresh in each case to arrive at conclusions about how those general principles translate into details.

In common law systems, the approach is the opposite: the legislation sets the details, from which the general principles emerge, much like a computer programme. The idea is that those who are making the statutes, rather than the courts, should be the ones who have the power to decide how the details work.

The civil law can thus be described as a top-down approach to principles, whereas the common law can be described as a bottom up approach. Both systems ‘value’ principles equally, but arrive at them, and deal with the interface between principle and detail, in very different ways.

Thus, common law and civil law systems may be distinguished in light of some key features. System Features. Of course, it must be noted that the systems may not exhibit all of the features in question, but the tendency is that most of the features will be seen to operate for a particular legal system to fall under that category.

The areas of distinction include:

 

1)              Common law systems trace their history to England, while civil law systems trace their history to Roman law and the Napoleonic Code.

2)             

Civil laws are altered immediately the legislature

 

The major sources of law in the common law system are customs and practice while

Regarding continuity of the legal system, whereas common law is evolutionary, civil law systems are revolutionary.

3)

4)

 

The trial format in common law is accusatorial and confrontational, while in civil

 

The systems may also be distinguished on the basis of judicial role in law-making.

5)

 

6) The role of legal scholarship in the common law system is usually secondary and peripheral, while in a civil law system the use of legal scholarship is extensive and influential.

Judicial review of statutes and of executive actions is largely incorporated in common

 

At common law, the major decision-making stage is the trial stage, while at civil law,

7)

8)

9)

10)

11)           The style of legal reasoning in common law is inductive while in civil law, it is usually deductive.

12)      

The use of argument and debate during trial, extensive and fundamental in common

Trial emphasis in common law is usually on procedural correctness, whereas the civil law system normally emphasises on factual certainty.

13)           Evidentiary rules in common law is formal and restrictive. The exclusionary rule is usually employed in common law. In civil law, usually all relevant evidence considered.

14)           With respect to the role of lawyers during trial, it is primary in common law system, while in civil law system the lawyers only play a secondary role.

15)           The common law lawyer’s function is to debate and oppose while in civil law, the lawyer’s function is to advise and inform.

16)           The judge’s role during trial is that of a referee/umpire in common law while in civil law, he/she is a director/examiner.

17)           The common law judges are usually political appointees from practicing lawyers and other judicial ranks. Their status is of political VIPs. In civil law, judges are appointed

by merit advancement from judicial specialists. Their status is of mid-level civil servants.

18)           Some common law jurisdiction allow citizen’s participation in trial by employing juries (grand & petit). In civil law, decisions are usually by members of judicial panels.

19)           While appeals in common law normally focus on procedural propriety, in civil law, appeals focus both on procedural and substantive propriety.

20)           The structure of the common law courts is usually unified while civil law systems have diffused court structures (with multiple specialized courts).

Other Major Legal Systems

2.3.1                 Socialist Legal Systems

Socialist system mostly denotes a general type of legal system used in the communist and former communist states. It is based on the civil law system, with major modifications and additions from Marxist-Leninist ideology.

There is controversy as to whether socialist law ever constituted a separate legal system or not,² but prior to the end of the Cold War, socialist law ranked among the major legal systems of the world by virtue of the predominant ideology in the communist states.

Socialist law is similar to the civil law system but with the following characterises:

 

(i)             A greatly increased public law sector and decreased private law sector.³

 

(ii)           At the early stages of existence of each socialist state, the aim was the partial or total expulsion of the former ruling classes from the public life (however, in all socialist states this policy gradually changed into the policy of ‘one socialist nation without classes’);

(iii)         The system directly discouraged diversity of political views;

 

 

 

 

² Quigley, J. "Socialist Law and the Civil Law Tradition". The American Journal of Comparative Law

37(1989) (4): 781–808.

³ H. Patrick Glenn, Legal traditions of the world: sustainable diversity in law (Oxford University Press, 2007) 331

(iv)          The ruling Communist party members/leaders are usually subject to prosecution through party committees in first place;

(v)            Abolition of private property is usually considered as a primary goal of socialism, if not its defining characteristic. Thus, near total collectivization and nationalization of property is encouraged;

(vi)          There is low respect for individuals’ privacy and extensive control over private life by the ruling party;

(vii)        There is low respect for intellectual property. Such knowledge and culture is considered a right for human kind and not a privilege as in the free market economies;

(viii)      There are extensive social warrants of the state (the rights to a job, free education, free healthcare, retirement at 60 for men and 55 for women, maternity leave, free disability benefits and sick leave compensation, and subsidies to multi-children families) in return for a high degree of social mobilization.

(ix)          The judicial process lacks adversary character; public prosecution is considered as ‘provider of justice.’

(x)            While civil law systems have traditionally put great pains in defining the notion of private property, how it may be acquired, transferred, or lost, socialist law systems provide for most property to be owned by the state or by agricultural co-operatives, and having special courts and laws for state enterprises.

(xi)          Although the command economy approach of the communist states meant that property could not be owned, the Soviet Union always had a Civil Code, courts that interpreted this Civil Code, and a civil law approach to legal reasoning (thus, both legal process and legal reasoning were largely analogous to the French or German civil code system).

Legal systems in all socialist states preserved formal criteria of the Romano-Germanic civil law; for this reason, law theorists in post-socialist states usually consider the Socialist law as a particular case of the Romano-Germanic civil law. Cases of development of common law into Socialist law are unknown because of incompatibility of basic principles of these two

systems (common law presumes influential rule-making role of courts while courts in socialist states play a dependent role)

2.3.2                 Religious Legal Systems

Religious law refers to the notion of a religious system or document being used as a legal source. The main kinds of religious law are Sharia in Islam, Halakha in Judaism, and canon law in some Christian groups.

The methodologies used in religious laws greatly vary. The use of Jewish Halakha for public law, for example, has a static and unalterable quality, precluding amendment through legislative acts of government or development through judicial precedent. On the other hand, it may be observed that Christian canon law is more similar to civil law in its use of civil codes while Islamic Sharia law (and Fiqh jurisprudence) is usually based on legal precedent and reasoning by analogy (Qiyas), and is thus considered similar to common law. During the Islamic Golden Age, classical Islamic law may have had an influence on the development of common law and several civil law institutions.

In some cases the religious edicts are intended purely as individual moral guidance. Canon law, for example, is not a divine law, properly speaking, because it is not found in revelation. Instead, it is seen as human law inspired by the word of God and applying the demands of that revelation to the actual situation of the church. Canon law regulates the internal ordering of the Roman Catholic Church, the Eastern Orthodox Church and the Anglican Communion. Canon law is amended and adapted by the legislative authority of the church, such as councils of bishops, single bishops for their respective sees, the Pope for the entire Catholic Church, and the British Parliament for the Church of England.

In other cases religious laws are intended and may be used as the basis for a country's legal system. The latter was particularly common during the middle Ages and today in countries adopting the Islamic legal system where Sharia (Islamic law) and Fiqh (Islamic jurisprudence) is the most widely used religious law and is one of the three most common legal systems in the world alongside common law and civil law. It is the most protected divine law, because, the majority of the rulings of Sharia law are based on the Qur'an and Sunnah, while a small fraction of its rulings are based on the Ulema (jurists) who used the

methods of Ijma (consensus), Qiyas (analogical deduction),  Ijtihad (research) and  Urf

(common practice) to derive Fatwā (legal opinions).

 

In Islamic systems, Ulema may be required to qualify for an Ijazah (legal doctorate) at a

Madrasah (school) before they are able to issue Fatwā.

 

Sharia law governs a number of Islamic countries, including Saudi Arabia, Pakistan and Iran, though most countries use Sharia law only as a supplement to national law. It can relate to all aspects of civil law, including property rights, contracts or public law.

Plural and Hybrid Systems

2.4.1                 Plural Systems

Legal pluralism is the existence of multiple legal systems within one geographic area. Plural legal systems are particularly prevalent in former colonies, where the law of a former colonial authority may exist alongside more traditional legal systems. When these systems developed, the idea was that certain issues (e.g., criminal sanctions) would be covered by colonial law, while other issues (e.g., family and marriage) would be covered by traditional law. Over time, these distinctions tended to break down and individuals would choose to bring their legal claims under the system that they thought would offer them the best advantage.

Legal pluralism also occurs when different laws govern different groups within a country. For example, in India, Kenya and Tanzania, there are special Islamic courts that address concerns in Muslim communities by following Islamic law principles. Secular courts deal with the issues of other communities.

It is important to note that modern Western legal systems can also be pluralistic. It is, thus, misleading to discuss legal pluralism only in relation to non-Western legal systems.

Legal pluralism also exists to an extent in societies where the legal systems of the indigenous population have been given some recognition. In Australia, for example, in Mabo v. Queensland (No 2), the decision gave recognition to native title and thus elements of traditional Aboriginal law.4 Elements of traditional Aboriginal criminal law have also been

 

⁴ (1992) 175 CLR 1.

recognised, especially in sentencing. This has, in effect, set up two parallel sentencing systems.

2.4.2                 Hybrid Systems

Hybrid systems arise where there is a mixture of notions form different legal systems coexisting with each other at the same time. The most prominent example of a hybrid legal system is the Indian legal system. India follows a mixture of civil, common law and customary or religious law. Separate personal law codes apply to Muslims, Christians, and Hindus. Decisions by the Supreme Court of India and High Courts are binding on the lower courts. Further, most of the laws are statutory and it also has a constitution which signifies the civil nature of law in India.

Hybrid legal systems are also found in n South Africa and Greece where the systems are based on a mixture of Civil law and common law. US law may also be viewed as hybrid legal systems to the extent that there is a mixture of civil law, common and religious laws in the system.

Session 3

MATERIAL SOURCES OF LAW IN KENYA

Introduction

The Judicature Act and the Constitution supply a good basis for the determination of where laws in Kenya sourced. The Judicature Act, Cap 8 is guides the courts in Kenya on the law to apply. It provides that in section 3:

(1) The jurisdiction of the High Court, the Court of Appeal and of all subordinate courts shall be exercised in conformity with: -

a)  The Constitution;

b)  Subject thereto, all other written laws, including the Acts of Parliament of the United Kingdom cited in Part I of the Schedule to this Act, modified in accordance with Part II of that Schedule;

c)  subject thereto and so far as those written laws do not extend or apply, the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the 12th August, 1897, and the procedure and practice observed in courts of justice in England at that date;

But the common law, doctrines of equity and statutes of general application shall apply so far only as the circumstances of Kenya and its inhabitants permit and subject to such qualifications as those circumstances may render necessary.

(2)    The High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law,

and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay.

This section creates a hierarchy of law in the following order:

 

(i)           The Constitution;

(ii)         Kenyan Legislations and some English Acts;

(iii)       Common law, the doctrines of equity and the statutes of general application in force in England on the 12^th August, 1897; and

(iv)       African Customary law

 

This section may be interpreted to closely relate to the new Constitution which may be seen to also supply sources from which the law of Kenya would be tapped from the courts. The Constitution identifies the sources of law to include:

(i)        The Constitution (in article 2);

(ii)      Legislation (article 94(5));

(iii)    Customary law (art 2(4);

(iv)     General rules of international law (art 2(5); and

(v)       Treaties or conventions ratified by Kenya (art 2(6).

But the problem is that the provisions do not tally. Thus, the judicature Act may need to be amended to accord with the new constitutional structure of laws e.g. as regards international law.

The Constitution

The highest source of law in Kenya the Constitution. Under article 2 (comparable to section 3 of the repealed Constitution), it is provided that the Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government.

The Constitution provides that no person may claim or exercise State authority except as authorised under the Constitution.

Thus in old English law, a writ of quo warranto (by what authority in Latin) would be issued to challenge a wrongful exercise of authority. This writ is still in Use in USA and in India. In the United States, the Supreme Court described it in Johnson v. Manhattan Railway Co. (1933) p. 502 as a writ “addressed to preventing a continued exercise of authority unlawfully asserted,” brought by the state or federal government against any person alleged to “exercise an office or authority without lawful right”.

In India for example, in Anna Mathew v. N. Kannadasan (2008) a writ was filed under Article 226 of the Constitution of India for the issuance of Writ of Quo Warranto against the 1^st respondent requiring him to show his authority to hold the office of President of the Tamil Nadu State Consumer Disputes Redressal Commission and to consequently declare his appointment by the 2nd respondent illegal and unconstitutional.

Under article 2 of the 2010 Constitution, the validity or legality of the Constitution is not subject to challenge by or before any court or other State organ. However in a curious ruling, the High Court in the case of Jesse Kamau & 25 others v Attorney General [2010] eKLR held under the repealed Constitution of Kenya that:

Financial maintenance and support of the kadhi courts from public coffers amounts to segregation, is sectarian, discriminatory and unjust against the applicants and others... it amounts to separate development of one religion and religious practice contrary to the principle of separation of state and religion.5

This case would never stand under the new Constitution.

 

It has further been provided in article 2 that any law, including customary law that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of the Constitution is invalid. Thus, in Godfrey Ngotho Mutiso v. Republic [2010] eKLR, section 204 of the Penal Code was declared to be unconstitutional by the Court of Appeal. The Court said:

We note that while the Constitution itself recognizes the death penalty as being lawful, it does not say anywhere that when a conviction for murder is recorded, only the death sentence shall be imposed. We declare Section 204 shall, to the extent it provides that the death penalty is the only sentence in respect of the crime of murder is inconsistent with the letter and spirit of the Constitution, which as we have said, makes no such mandatory provision.

In the Muruatetu Case at the Supreme Court of Kenya,6 the petitioners and others were arraigned before the High Court for the offence of murder. Upon their conviction, they were sentenced to death as decreed by section 204 of the Penal Code. Their appeal to the Court of Appeal against both that conviction and sentence was dismissed. Upon further appeal, the Supreme Court found that section 204 of the Penal Code that provided that “any person convicted of murder shall be sentenced to death”, was unconstitutional. The Supreme Court held that the mandatory nature of the death sentence as provided for under section 204 of the Penal Code deprived the Court of the use of judicial discretion in a matter of life and death. The Court stated that such law could only be regarded as harsh, unjust and unfair. The mandatory nature of the provision deprived the Courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases. The Court went on to order that the judgment urgently be placed before the Speakers of the National Assembly and the

 

 

⁵ Jesse Kamau & 25 Others v. Attorney General, High Court Nairobi Miscellaneous Civil Application 890 of 2004 [2010] eKLR

⁶ Francis Karioko Muruatetu & another v Republic [2017] eKLR

In Hamdardda Wakhama vs. Union of India (AIR 1960 at 554) where the Court stated:

 

…when an enactment is impugned on the ground that it is ultra vires and unconstitutional what has to be ascertained is the true character of the legislation and for that purpose regard must be had to the enactment as a whole to its objects, purpose and true intention and the scope and effect of its provisions or what they are directed against and what they aim at.

Written Laws

3.3.1                 Acts of the Kenyan Parliament

Under article 94(1), the legislative authority of the Republic is derived from the people and, at the national level, is vested in and exercised by Parliament.

Moreover, no person or body, other than Parliament, has the power to make law unless the Constitution authorises it or under authority given under legislation (94(5)).

3.3.2                 Delegated Legislation

An Act of Parliament, or legislation of a county, may confer on any State organ, State officer or person the authority to make provision having the force of law in Kenya.

For this to be so, the Act has to expressly specify the purpose and objectives for which that authority is conferred, the limits of the authority, the nature and scope of the law that may be made, and the principles and standards applicable to the law made under the authority.

3.3.3                 Acts of Foreign Legislative Bodies

a)       English Legislation

 

Under Part I of the Schedule to the Judicature Act Cap 8 Laws of Kenya, the following British Statutes are applicable in Kenya;

·         Admiralty Offences (Colonial) Act of 1849;

·         The Evidence Act (Sections 7 and 11 thereof)

·         Foreign Tribunals Evidence Act of 1856

·         Evidence by Commission Act of 1859

·         British Law Ascertainment Act 1859

·         Admiralty Offences (Colonial) Act of 1860

·         Foreign Law Ascertainment Act of 1861

·         Conveyancing (Scotland) Act of 1874 specifically S. 51 thereof

·         Evidence by commission Act of 1885.

 

Under Part II of Schedule to the Judicature Act the President shall replace the Governor and a Magistrate holding a subordinate Court of the 1^st Class shall replace a Magistrate of the Justice of Peace.

The Judicature Act also identifies Statutes of General Application as at 12^th August 1897 as sources of law in Kenya

This is contained in Section 3 of the Interpretation and General Provisions Act Cap 2 of the Laws of Kenya. The expression “Statutes of General Application” is not specifically defined in the Judicature Act, Cap 2 or in any other piece of legislation. However, Kenya Courts have over the years accepted several UK Statutes as statutes of general application and applied them in determining certain cases.

Three basic criteria must be satisfied in order for a UK Act to be received and applied as a statute of general application:

(i)           It must have been enforced in the UK on the 12^th day of August 1897;

(ii)         It must have been applicable generally in the UK as at that date i.e. it must not have been a statute applicable only to a section of the UK or only to a section of the population;

(iii)       The Statute must be suitable for the circumstances of Kenya and the inhabitants.

 

One Professor Allot in an article entitled “New Essays in African Law” has outlined a number of factors to be considered before UK Legislation can qualify as a statute of general application. These are:

(i)                       The statute must be a government Act of the English legislature as distinguished from a local or private Act;

(ii)                     The statute must have been in force in England at the specified reception date;

 

(iii)                   The statute must be suitable for general application outside England;

 

(iv)                   The Courts of the particular country concerned must rule on it;

(v)                     When there is a local enactment which is inconsistent with the English statute then the local legislation prevails.

Some of the statutes of general application applied in Kenya include:

 

·                Married Women’s Property Act of 1882 (see case of I v I: 1971 case reported in EA law reports page 278);

·                Infants Relief Act of 1874.

 

b)      Indian Legislation

 

There are some pieces of Indian legislation which were imported into Kenya by the British Colonial Authorities, for instance, the Indian Transfer of Properties Act (ITPA) was for a long time used to provide substantive law under various procedural land legislation until it was repealed by the comprehensive land legislation of 2012.

Common Law

Common-law courts base their decisions on prior judicial pronouncements rather than on legislative enactments. Common-law judges rely on their predecessors' decisions of actual controversies, rather than on abstract codes or texts, to guide them in applying the law.

Under the doctrine of Stare Decisis, common-law judges are obliged to adhere to previously decided cases, or precedents, where the facts are substantially the same.

A court's decision is binding authority for similar cases decided by the same court or by lower courts within the same jurisdiction. The decision is not binding on courts of higher rank within that jurisdiction or in other jurisdictions, but it may be considered as persuasive authority.

Because common-law decisions deal with everyday situations as they occur, social changes, inventions, and discoveries make it necessary for judges sometimes to look outside reported decisions for guidance in a case of first impression (previously undetermined legal issue). The common-law system allows judges to look to other jurisdictions or to draw upon past or present judicial experience for analogies to help in making a decision. This flexibility allows common law to deal with changes that lead to unanticipated controversies. At the same time,

stare decisis provides certainty, uniformity, and predictability and makes for a stable legal environment.

Doctrines of Equity

Equity is the name given to the set of legal principles, in jurisdictions following the English common law tradition that supplement strict rules of law where their application would operate harshly.

Equity has an ordinary meaning and a technical meaning. In the ordinary sense, equity means fairness, justice, morality, fair play, equality etc. In this sense, we are talking about doing good or doing what is morally right. It is regarded as a body of rules that is an appendage to the general rules of law.

The Constitution takes this into account, for example in article 10 on National Values when it adopts the values of human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised and protects the right to equality and non-discrimination in article 27. In article 159, it provides that in exercising judicial authority, the courts and tribunals shall be guided by the following principles (a) justice shall be done to all, irrespective of status; (b) justice shall not be delayed.

In a legal sense, equity it is the branch of the law which, before the Judicature Act of 1873 came into force, was applied and administered by the Court of Chancery. Equity is commonly said to ‘mitigate the rigor of common law,’ allowing courts to use their discretion and apply justice in accordance with natural law. In practice, modern equity is limited by substantive and procedural rules, and English legal writers tend to focus on technical aspects of equity.

A historical criticism of equity as it developed was that it had no fixed rules of its own, with the Lord Chancellor occasionally judging in the main according to his own conscience. The rules of equity later lost much of their flexibility, and from the 17^th century onwards equity was rapidly consolidated into a system of precedents much like its common-law cousin.

Customary Law

During the colonial era, the British applied a dual system of law: in areas under “direct rule” English law applied while in areas under “indirect rule” customary or traditional laws were allowed to continue to apply to native populations under the supervision of the British. English law applied in all areas to people of English descent and to Africans who “opted out” of customary law.

In addition, serious offenses against the state, or criminal offenses, were generally dealt with under English law.

The Common Law system also recognised unwritten rules and norms as part of the law (as opposed to civil law systems that generally require law to be written).

Against this historical backdrop, today, customary law is increasingly being treated as part of the common law. The Constitutions of some countries actually recognise this. Sierra Leone, for example, explicitly states that customary laws are part of the common law of the country.

In Kenya, the Judicature Act recognises customary law as part of the Kenyan law.

 

The discretion of the court to apply customary law is subject to the proviso that customary law cannot be applied where it is contrary to written law or is contrary to public policy or natural justice.

For customary law to be applied, the following conditions should be met:

 

(i)           One or more of the parties must be subject to it or affected by it,

 

(ii)         It should not be inconsistent with any written law, and

 

(iii)       It should not be repugnant to justice and morality.

 

But there are cases where statutes recognise the operations of customary law above the express provisions of statutory law. The Law of Succession Act, Cap 160 for example, provides in section 33 that:

[Notwithstanding the provisions of that part] the law applicable to the distribution on intestacy of [some] categories of property ... shall be the law or custom applicable to the deceased's community or tribe, as the case may be.

Now, under the Kenyan Constitution, article 11 has given more impetus to the operation of customary law by recognising culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation and enjoins the State to promote all forms of national and cultural expression.

In Monica Jesang Katam v Jackson Chepkwony & Another [2011], Justice J.B. Ojwang’ (Now a supreme court Judge but) then at the High Court affirmed the right of Inheritance in woman to woman marriage as acceptable law in Kenya under our customs.

Monica Jesang had claimed the right of inheritance by affirming that she was a beneficiary of the estate of Cherotich Kimong’ony Kibserea (deceased) by virtue of having been married to the deceased in a woman to woman marriage under the Nandi tradition. The High Court at Mombasa in deciding the case upheld customary law by observing that contemporary social systems for instance, in the shape of current practices in the domain of family among the Nandi were to be regarded as aspects of culture which would rightly claim protection under Article 11 (1) of the Constitution of Kenya 2010. The Constitution under the Article recognized culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and the nation.

However, it is provided in article 2 of the 2010 Constitution that customary law that is inconsistent with this Constitution is void (art 2). Furthermore, Article 159 enjoins the courts, in exercising judicial authority, to ensure that traditional dispute resolution mechanisms shall not be used in a way that—

(i)             Contravenes the Bill of Rights;

 

(ii)           Is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; or

(iii)         Is inconsistent with this Constitution or any written law.

International Law

A source of law that is not mentioned in the Judicature Act is international law. However, the Constitution provides in article 2 that the general rules of international law shall form part of the law of Kenya. Moreover, any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution, according to the Constitution.

A question that would arise in this regard is: at what hierarchical position does international law stand in the hierarchy of law, considering that it is not included in the Judicature Act, Cap 8? It may be possible to settle this through an amendment to that Act to take into consideration this issue alongside the issue of the reception date in the Act that it might seem to have been passed by the times today.

Three suggestions may be made with respect to the place of international law in the hierarchy of law:

(i)             Since the Constitution Since international laws (especially treaties protecting human rights) deal with the same things as the Constitution in the subject, international law should be given a position at the apex with the Constitution so that any law made by the legislature that violates international law would be unconstitutional;

(ii)           Also stipulates for enforcement of principles created under it through diverse means, including legislation by Parliament, international law should be viewed as one such means intended to safeguard constitutional guarantees and should therefore be placed at the second tier in the hierarchy alongside Acts of Parliament; and

(iii)         Since international law has not been subjected to the same legislative rigours in their adoption as national laws as it normally is the case with other municipal laws, it should be viewed only as supplementing legislation by Parliament and therefore at a level below the Acts of Parliament in the hierarchy of laws.

Any of this position may be taken depending on the legislative pattern that the country may adopt to enforce international law.

Session 4 LEGISLATIVE LAW-MAKING

Introduction

Acts of parliament and other subsidiary legislation done by bodies to which parliament has conferred the power to legislate are important sources of law.

Primary Legislation

An Act is a statute enacted as primary legislation by national or sub-national legislative organs. In Kenya, under the 2010 Constitution, the counties have legislative assemblies in the form of County Assemblies under the devolved system.

It is important to note that the word ‘statute’ is used to denote a formal written enactment of a legislative authority. The word is usually used to distinguish between the law made by legislative bodies from case law, decided by courts, and from regulations issued by government agencies (as subsidiary legislation). Statutory law is also to be distinguished from and is subordinate to constitutional law.

In Kenya, the Constitution divides the legislative competence between the national legislature and the county legislature (the 4^th schedule to the Constitution). Some of the areas of legislative competence of the national and county legislative organs overlap including agriculture, education, health etc.).

Statutes are of several kinds. They may be public or private; declaratory or remedial; temporary or perpetual etc. A temporary statute is one which is limited in its duration at the time of its enactment. It continues in force until the time of its limitation has expired, unless sooner repealed. A perpetual statute is one for the continuance of which there is no limited time, although it be not expressly declared to be so. If, however, a statute which did not itself contain any limitation is to be governed by another which is temporary only, the former will also be temporary and dependent upon the existence of the latter.

A statute made by Parliament must accord to the Constitution or else it will be void to the extent of inconsistency. In Hassan Ali Joho v Suleiman Said Shabal,7 Suleiman Shahbal had filed a petition in the High Court challenging the validity of the election of Hassan Joho at the gubernatorial election for Mombasa County. At the heart of the matter was the constitutionality of s. 76(1)(a) of the Elections Act vis-à-vis Art.87(2) of the Constitution.

Section 76(1)(a) stated that a petition to question the validity of an election shall be filed within twenty eight days after the date of publication of the results of the election in the Gazette. Art. 87(2) stated that petitions concerning an election, other than a presidential election, shall be filed within twenty-eight days after the declaration of the election results by the IEBC. Defining the term ‘declaration’, the Supreme Court declared the provision of

s. 76(1)(a) of theElections Act inconsistent with the provisions of Art. 87(2) of the Constitution and thus pursuant to Art. 2(4), void to the extent of the inconsistency.

In the SK Macharia Case,8 an application for leave to appeal against the judgement of the Court of Appeal where the Appeal judge had been removed through the vetting of the judiciary post the 332010 Constitution, pursuant to section 14 of the Supreme Court Act, the Supreme Court declared section 14 of the Act unconstitutional insofar as it purported to confer “special jurisdiction” upon the Supreme Court contrary to the express terms of the Constitution.

The Process of Legislation/Law Making Process

A draft Act of Parliament is known as a Bill. In territories with a Westminster system, most Bills that have any possibility of becoming law are introduced into Parliament by the government. In the UK, this will usually happen following the publication of a ‘white paper’, setting out the issues and the way in which the proposed new law is intended to deal with them.

 

 

 

 

 

⁷ Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others [2014]eKLR

 

⁸ Samuel Kamau Macharia & Another v. Kenya Commercial Bank & 2 Others, Civil Application No. 2 of 2012

A Bill may also be introduced into Parliament without formal government backing; this is known as a ‘private member's Bill.’

In territories with a multi-cameral parliament, most Bills may be first introduced in any chamber. However, certain types of legislation are required, either by constitutional convention or by law, to be introduced into a specific chamber. For example, bills imposing a tax, or involving public expenditure, are introduced into the National Assembly in Kenya (see articles 109 and 114), or into the House of Commons in the United Kingdom by convention. Conversely, bills proposed by the Law Commission and consolidation bills traditionally start in the House of Lords in the UK.

In Kenya, a Bill not concerning county government is considered only in the National Assembly while a Bill concerning county government may originate in the National Assembly or the Senate.

Once introduced, a bill must go through a number of stages before it can become law. In theory, this allows the bill's provisions to be debated in detail, and for amendments to the original bill to also be introduced, debated, and agreed to.

In bicameral parliaments, a bill that has been approved by the chamber into which it was introduced is ‘send’ to the other chamber. Broadly speaking, each chamber must separately agree to the same version of the bill. Finally, the approved bill receives assent; in most territories this is merely a formality, and is often a function exercised by the head of state.

Standing orders also provide for the process of legislation. Usually, the Bill goes through:

4.3.1                 First reading

The first reading is a formal process that involves no debate.

 

4.3.2                 Second reading

The debate on general principles of the Bill is done.

4.3.3                 Committee Stage

Bills usually go through House Committees or to a Committee of the Whole House where the Bill goes through a detailed line by line examination. Amendments are usually considered here and public opinion is accepted. Debate on amendments is unrestricted.

4.3.4                 Report Stage

After the end of Committee Stage the committee tables its report before the House. At this stage, there are further chances to amend the Bills by members through a vote. For long and complex Bills, this may be spread over several days.

4.3.5                 Third Reading

Bill is then read and passed or opposed by the House.

 

4.3.6                 Presidential Assent

In Kenya, A Bill passed by Parliament has to get presidential assent to become a law. Under the Constitution, a Bill that has been passed by Parliament and assented to by the President shall be published in the Gazette as an Act of Parliament within 7 days after assent (art 116).

An Act of Parliament comes into force on the 14^th day after its publication in the Gazette, unless the Act stipulates a different date at which it will come into force.

An Act of Parliament that confers a direct pecuniary interest on members of Parliament shall not come into force until after the next general election of members of Parliament.

Delegated Legislation/Subsidiary Legislation/Indirect Legislation/Statutory instruments

An Act of Parliament, or legislation of a county, may confer on any State organ, State officer or person the authority to make provision having the force of law in Kenya.

For this to be so, the Act has to expressly specify the purpose and objectives for which that authority is conferred, the limits of the authority, the nature and scope of the law that may be made, and the principles and standards applicable to the law made under the authority.

4.4.1                 Why is it necessary to have controls over delegated legislation? Delegated legislation is made by non-elected bodies away from democratically elected politicians (parliament), as a result many people have the power to pass delegated legislation,

which provides a necessity for control, as without controls bodies would pass outrageous unreasonable legislation which was attempted in the past. In Strictland v. Hayes Borough Council (1986), a bylaw prohibiting the singing or reciting of any obscene language generally, was held to be unreasonable and as a result the passing of this delegated legislation was rejected.

It is essential to control the exercise of delegated legislative power in order to avoid authorities abusing their powers (R v Secretary of State for Education and Employment, ex parte National Union of Teachers (2000) and Commissioners of Custom and Excise v Cure and Deely Ltd (1962)).

Another issue which occurs which makes controls over delegated legislation vital is sub- legislation, which is where law making is handed down another level to people other than those who were given the original power to do so, to implement important policies. Creating criticism that our law is made by civil servants (who may know hardly anything about the law) and just rubber stamped by the Minister of that apartment, this requires law passed by these civil servants to be checked by the scrutiny committee of parliament or the courts.

Moreover, delegated legislation can share the same issues as Acts of Parliament such as obscure wording that can lead to difficulty in understanding the law, which again makes controls necessary as parliament or the courts can stop unclear legislation, which will affect the lives of hundreds of people from passing.

4.4.2                 Advantages of Delegated Legislation

(i)        Parliament does not have the time to legislate on all issues;

 

(ii)      They are speedy to enact and are therefore suitable for emergency intervention;

 

(iii)    They are flexible or less rigid than Acts of Parliament and therefore they are easy to amend or appeal;

(iv)     Parliament will not usually have the requisite technical capacity.

 

4.4.3                 Disadvantages of delegated legislation

(i)             Lack of adequate parliamentary control;

 

(ii)           Lack of adequate Judicial control;

(iii)         They are undemocratic as they are not made by democratically elected persons;

 

(iv)          Too much delegated legislation contributes to uncertainty in the law;

 

(v)            There is the danger of sub-delegation.

 

4.4.4                 The Concept of Ulta Vires in the Exercise of Delegated Powers

With relation to delegated legislation, there are issues of ultra vires which have to be appreciated. It may be substantive or procedural ultra vires exercise of delegated powers.

Ultra vires is a Latin phrase meaning literally "beyond the powers", although its standard legal translation and substitute is "beyond power".

a)              Substantive ultra vires - the authority making the delegated legislation exceeds the powers granted by parliament.

b)              Procedural ultra vires - where the authority making the delegated legislation contravenes any mandatory procedure set out in the parent statute.

Ultra vires delegated legislation will be amenable for quashing by courts of law. The doctrine of ultra vires gives courts considerable powers of oversight over decision-making. The range and variety of bodies amenable to the doctrine is large. Ministers, or any public body with statutory powers, may be included. The doctrine also applies to companies and corporations that are amenable to the remedies of declaration or injunction.

A local authority that enters an agreement or contract that is outside its statutory powers is said to be acting ultra vires. In Hazel v. Hammersmith [1991] 1 All ER 545, the House of Lords held that various speculative investments undertaken by local authorities lacked express statutory authorization and were void with severe consequences for those who had invested in local authority activities declared illegal by the courts.

The grounds for claiming ultra vires range from abuse of power, acting unreasonably (Padfield v. Minister of Agriculture, Fisheries and Food [1968] AC 997), or acting not in accordance with the rules of natural justice.

Ultra vires is a formidable doctrine for the courts to intervene and challenge the legality of decisions. Ultra vires may result in significant consequences for the body exercising legal

powers. In many cases the decision that is ultra vires may be said, in law, never to have taken place, with often severe consequences from such a finding on the parties to any agreement.

In Kaka Travellers Cooperative and Savings and Credit Society v. Nairobi City Council, the High Court held that the levying of parking charges by the respondent without the installation of parking metres as required by the Traffic Act was ultra vires the Act. Justice Korir Weldon faulted the city council for arbitrarily increasing parking fees without following its own by-laws. The Court held that:

“The Traffic Act which donated power to the local authorities to impose parking charges provided that the said parking charges should be imposed by way of by- laws made in accordance with the Local Government Act.”

Under the Traffic Act, parking meters was required to assist calculate the charges to be levied.

Session 5

STRUCTURE AND JURISDICTION OF COURT IN KENYA

Introduction

Structure of the court system refers to the hierarchical arrangement of the court from the lowest to the highest one. Composition of the court on the other hand refers to the presiding judicial officer(s) that is the Magistrates and the Judges. Kenya has a court system that operates at different levels. Jurisdiction of a court describes the kind of cases that a particular court is empowered to hear and determine.

Superior Courts/Courts of Record in Kenya

5.2.1                 The Supreme Court

The court is established under article 163 and the Supreme Court Act (No. 7 of 2011). The Court is headed by Chief Justice, who is the president of the court and deputised by the Deputy Chief Justice. The number of Judges of the Supreme Court is 7.

The Court’s jurisdiction includes:

 

(i)           Exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President; and

(ii)         Appellate jurisdiction to hear and determine appeals from the Court of Appeal; and any other court or tribunal as prescribed by national legislation.

(iii)       Appeals from the Court of Appeal lie to the Supreme Court - For cases involving the interpretation or application of the Constitution at the Court of Appeal an appeal lies as of right to the Supreme Court. In other cases where the Supreme Court or the Court of Appeal certifies that a matter of general public importance is involved, an appeal will lie to the Supreme Court.

(iv)        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. In Re the Matter of Commissioner for the

Implementation of the Constitution (Application No. 1 of 2011, [2011] eKLR), the Supreme Court affirmed its jurisdiction to hear matters related to the date of the first elections under the 2010 Constitution but referred the case to the High Court at the first instance since it was also seized with an appellate jurisdiction were the matter to proceed beyond the High Court and Court of Appeal.

All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court.

 

In Peter Oduor Ngoge v Hon. Francis Ole Kaparo and 5 Others,⁹ the issue was whether the Supreme Court could entertain an application where the Court of Appeal has either not determined such motion by the petitioner for leave under s.19 of the Supreme Court Act, 2011, or, has entertained such an application but declined to grant leave; and whether an ordinary subject of leave-to-appeal can trans-mutate to a meritorious theme involving the interpretation or application of the Constitution. It was held that the appellate jurisdiction of the Supreme Court is defined clearly enough under Article 163 of the Constitution, and s.19 of the Supreme Court Act and the petitioner’s case which had been brought without the leave of the Court of Appeal was outside the jurisdiction of the Supreme Court. According to the Court, the petitioner in this case had not rationalized the transmutation of the issue from an ordinary subject of leave-to-appeal, to a meritorious theme involving the interpretation or application of the Constitution – such that it becomes, as of right, a matter falling within the appellate jurisdiction of the Supreme Court.

The Court further held that, in the interpretation of any law touching on the Supreme Court’s appellate jurisdiction, the guiding principle is to be that the chain of Courts in the Constitutional set-up, running up to the Court of Appeal, have the professional competence, and proper safety designs, to resolve all matters turning on the technical complexity of the law; and only cardinal issues of law or of jurisprudential moment, will deserve the further input of the Supreme Court.

In the SK Macharia Case, an application for leave to appeal against the judgement of the Court of Appeal where the Appeal judge had been removed through the vetting of the

 

 

⁹ Supreme Court of Kenya at Nairobi Petition No. 2 Of 2012

judiciary post the 2010 Constitution, pursuant to section 14 of the Supreme Court Act, the Supreme Court declared section 14 of the Act unconstitutional insofar as it purported to confer “special jurisdiction” upon the Supreme Court contrary to the express terms of the Constitution. Recognising the good intention of Parliament, the Court nevertheless found that where the constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limit. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a court of law beyond the scope defined by the Constitution.

5.2.2                 The Court of Appeal

This court is established under article 164. It consists of not fewer than twelve judges.

 

The head of the Court of Appeal is the President of the Court elected by the judges of the Court of Appeal from among themselves.

The Court’s jurisdiction is to hear appeals from the High Court; and any other court or tribunal as prescribed by an Act of Parliament.

The decisions of the Court are binding upon the High Court and other subordinate Courts.

 

Under the repealed Constitution, the Court of Appeal was the Highest Court of the Land (s. 64). This was created by a Constitutional amendment in 1977 after the collapse of the East African Community.¹⁰ Before that, the East African Court of Appeal which was an organ of the first East African Community was the highest appellate Court for the three East African Countries of Kenya, Uganda and Tanzania.

5.2.3                 The High Court

Under the repealed Constitution, the High Court was established under Section 60 as a superior court of record and which had unlimited original jurisdiction in criminal and civil matters and such other jurisdiction and powers as may be conferred on it by the Constitution or any other law.

 

 

 

 

¹⁰ Act No. 13 of 1977, s. 2, 7

The 2010 Constitution, established this court in article 165. The head of the Court is the Principal Judge of the High Court, who is elected by the judges of the High Court from among themselves.

In terms of jurisdiction, the High Court has:

 

(i)             Unlimited original jurisdiction in criminal and civil matters;

 

(ii)           Jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;

(iii)         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 to remove the President under Article 144);

(iv)          Jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of:

a.         The question whether any law is inconsistent with or in contravention of the Constitution;

b.         The question whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of, the Constitution;

c.         Any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and

d.        A question relating to conflict of laws between the county law and the national laws under Article 191; and

(v)       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.

(vi)     Any other jurisdiction, original or appellate, conferred on it by legislation.

 

The High Court does not have jurisdiction in respect of:

 

(i)             Matters reserved for the exclusive jurisdiction of the Supreme Court; or

(ii)           Matters falling within the jurisdiction of :

 

a)       Industrial Court established under art 162(2) of the Constitution and Act No 20 of 2011; and

b)       Environment and Land Court established under art 162(2) of the Constitution Act No 19 of 2011.

In practice only those cases in respect of which the subordinate courts have no jurisdiction will be heard in the High Court. As a superior court of record decisions of the High Court are binding on subordinate courts. Thus the High Court hears ordinary civil cases where the value of the subject matter exceeds the pecuniary jurisdiction the Resident Magistrate courts.

In criminal cases the High Court only hears cases relating to offences of murder and treason.

 

In addition to the ordinary civil and criminal jurisdiction of the High Court there are certain matters which can only be heard by the High Court exclusively.

These include:

 

(i)             Interpretation of the Constitution art 165(3)(d).

 

(ii)           Cases involving enforcement of fundamental rights and freedoms of the individual which are set out in Chapter 4 of the Constitution (art 165(3)(b).

(iii)         Election Petitions involving Parliamentary election (for presidential, the exclusive jurisdiction is with the Supreme Court).

(iv)          Judicial Review - Under Order 53 of the Civil Procedure Rules, the High Court has powers of Judicial Review of administrative action and can grant orders of Certiorari, Mandamus and Prohibition.

(v)            Supervisory Jurisdiction: The High Court exercises supervisory jurisdiction over subordinate courts and in this regard can transfer cases from one subordinate court to another if it deems it fit.

(vi)          Admiralty jurisdiction - Section 4 of the Judicature Act provides that the High Court shall be a court of admiralty i.e. the court shall entertain cases of High Seas, Territorial Waters, Lakes and other navigable inland waters.

(vii)        Appellate Jurisdiction - The High Court has appellate jurisdiction i.e. appeals from all subordinate courts and tribunals exercising quasi-judicial powers can properly be entertained by the High Court.

(viii)      Winding up of Companies - This can only be filed at the High Court.

 

(ix)          Probate Jurisdiction - under the Laws of Succession

 

(x)            Bankruptcy petitions

 

(xi)          Matters dealing with Intellectual property.

 

With regard to the composition of the High Court, ordinarily, the High Court is duly constituted by a Judge sitting alone. However there are instances where two or more High Court Judges may sit together to hear certain types of cases.

Issues raising substantial question of law are normally to be heard by an uneven number of judges, being not less than three. For example, in matters raising substantive constitutional question the Chief Justice is required to appoint at least three High Court judges to hear the case.

Previously, section 7 of the Judicature Act Cap 8 provided a limit of 70 judges. This has now been increased to 150 under the new Constitution to tackle the backlog in the court.

All appeals from the High Court lie to the Court of Appeal.

 

5.2.4                 Specialised Courts

Under article 159(1), judicial authority is exercisable by courts and tribunals established by or under the Constitution. Some specialised courts have thus been established by the Constitution and are ranked alongside the High Court. These include:

1) Employment and Labour Relations Court

 

Before 2010, the Industrial Court was established under the Trade Disputes Act Cap 234. As noted above, it now ranks at the same level as the High. Its composition included a judge and two other members appointed from a panel constituted by the Minister for Labour. The judge of the Industrial Court was appointed by the President for a renewable term of 5 years and the requisite qualifications were the same as those for other judges.

Its jurisdiction was to hear industrial disputes that occurred between employer and employees, federation of employers and employee unions etc. These related to matters of employment, terms of employment, dismissal redundancy collective bargaining agreement etc. No Appeal lay from an award of the Industrial Court.

The Constitution of 2010 has now created the Employment and Labour Relations Court, art 162, which is at the same status as the High Court to determine industrial disputes.

In United States International University (USIU) v Attorney General & 2 others,11 the question was whether the Industrial Court is competent to interpret the constitution and enforce matters relating to breach of fundamental rights and freedoms and Whether employment and labour relations matters which raise constitutional issues filed in the High Court prior to establishment of the Industrial Court should be handled by the High Court. It was held that:

(i)         The Industrial Court Act 2011 is silent on the jurisdiction of Industrial Court to interpret the Constitution or to enforce fundamental rights and freedoms. Likewise Art 165 of the Constitution is silent whether the courts of the status of the High Court have jurisdiction to interpret the constitution, and enforce fundamental rights and freedoms under the Bill of rights.

(ii)       The Industrial Court as constituted under the Industrial Court Act, 2011 as a court with the status of the High Court, is competent to interpret the Constitution and enforce matters relating to breach of fundamental rights and freedoms, in matters arising from disputes falling within the provisions of section 12 of the Industrial Court Act, 2011.

(iii)     The Industrial Court, having been established to deal with employment and labour matters. It follows that all employment and labour relations matters pending in the High Court, shall be heard by the Industrial Court which is a court of the status of the High Court. The High Court therefore lacks jurisdiction to deal with matters of employment and labour matters whether filed in the High Court before or after the establishment of the Industrial Court.

 

¹¹ High Court, Nairobi, Petition No 170 of 2012.

Both matters were thus transferred to the Industrial Court for hearing and disposal.

 

In Kenyatta University v. Industrial Court of Kenya & another (Misc. Civil Appl. No. 430 of 2007 [2012]eKLR, the question before the High Court was whether the High Court had jurisdiction to entertain an application pertaining to issues of employment and labour relations and to supervise the Industrial court. It was held that the jurisdiction of the High Court vis-à-vis the Industrial Court has now been settled by Article 165 (5) of the Constitution which provide that the High Court shall not have jurisdiction to determine matters pertaining to employment and labour relations. Jurisdiction over such matters is now vested by Article 162(2) in the Industrial Court, a court with the status of the High Court established under the provisions of the Industrial Court Act, 2011.

However, it was noted that neither the Constitution nor the Industrial Court Act operates retrospectively and the High Court had jurisdiction to supervise the Industrial Court as it existed in February, 2007 when the decision impugned in this application was made. Thus, had it found that the Industrial Court acted in excess of its jurisdiction, then the High Court would have had the jurisdiction to quash the decision if it was reached ultra vires the jurisdiction of the respondent.

5.2.4.1       Environment and Land Court

Environment and Land Court is a relatively new court established by the Environment and Land Court Act (No 19 of 2011) pursuant to the Constitution of 2010. The court is at the same level as the High Court as per art 162(2)(a) & (b)).

Subordinate Courts

The 2010 Constitution does not say much else about the Subordinate Courts except to grant Parliament the powers to define the functions, roles and jurisdiction of these courts. Article 169 states:

(1)  The subordinate courts are:

(a)  The Magistrates courts;

(b)  The Kadhis’ courts;

(c)  The Courts Martial; and

(d) Any other court or local tribunal as may be established by an Act of Parliament, other than the courts established as required by Article 162 (2).

(2)  Parliament shall enact legislation conferring jurisdiction, functions and powers on the courts established under clause (1).

5.3.1                 Resident Magistrates Courts

These are established under Section 3 of Magistrates' Courts Act Cap 10. A Resident Magistrate Court is presided by a Resident Magistrate, Senior Resident Magistrate, Principal Magistrate, Senor Principal Magistrate or even the Chief Magistrate.

The territorial jurisdiction of an RM is country wide (Section 3(2) of Cap 10). However, under the Civil Procedure Act particularly Sections 11 to 18 the place for suing with regard to civil proceedings is specifically provided for. At present, all Resident Magistrate Courts have only original jurisdiction in both civil and criminal matters.

In criminal cases Resident Magistrates Courts have power to hear and determine all cases involving offences under any Kenyan Law except those exclusively triable by the High Court.

In Civil cases the current jurisdiction of Resident Magistrate Courts is set out in the in the Magistrates’ Courts Act cap 10 (as amended from time to time). In Justus Kyalo Mutunga v Labh Sing Harnam Civil Suit 338 of 2012 High Court at Nairobi [2012] eKLR, the issues were about the application to transfer a suit for damages arising from a road accident, after the suit had mistakenly been filed in a subordinate court outside the territorial jurisdiction of where the accident had occurred. According to the respondent, the suit could not legitimately be transferred from the Court that had no jurisdiction to one of competent jurisdiction. It was Held, the Civil Procedure Act is not the instrument that confers jurisdiction upon the subordinate courts since the jurisdiction of the subordinate courts is governed by Magistrate’s Courts Act. Section 3(2) of the former Act expressly states that the Resident Magistrate’s Court shall have jurisdiction throughout Kenya. Per Ringera J in Mohamed Sitaban v George Mwangi Karoki Civil Application No. 13 of 2002:

Under section 3(2) of the Magistrate’s Court Act, a court of the resident magistrate has jurisdiction throughout Kenya. Such a court is not subject to the local territorial jurisdiction contemplated by section 15 of the Civil Procedure Act which applied only to courts lower than the Resident Magistrate’s Court.

The Magistrates Court Act was enacted in 1967 long after the Civil Procedure Act. The Legislature was therefore aware of the provisions of section 15 of the Civil Procedure Act and where two provisions in different statutes conflict, the provision in the latter statute is deemed to amend the earlier provision.

There may be sound administrative reasons for filing suits in administrative Districts in which the defendant resides but those reasons cannot oust a statutory jurisdiction. The rule that a suit filed in a court without jurisdiction is a nullity and cannot be transferred is inapplicable in such cases.

Subsequent to the 2013 General Elections, the Magistrate Courts were engaged in hearing electoral petitions for County Assembly seats. The Chief Justice has also been granted by the Industrial Court Act, 2011 the authority to appoint some Magistrates Courts to hear and determine employment and labour relations (industrial) disputes. Obviously, appeals from these courts would then fall back on the Industrial Court.

5.3.2                 District Magistrates Courts

These are established under Section 7 of the Magistrates Courts Act Cap 10. There are 3 classes of DM’s courts: DM3; DM2; DM1. District Magistrate 3 has since been phased out administratively although the Act has not yet been amended. However Criminal Law Amendment Act No. 5 of 2003 has expressly abolished DM courts with regard to criminal proceedings.

Each DM Court is presided over by one Magistrate. The territorial jurisdiction of a DM’s court is limited to the administrative district for which the court is established. However the Chief Justice may designate two or more districts for purposes of District Magistrates Courts. These courts only have original jurisdiction as opposed to appellate jurisdiction i.e. the power to hear cases at first instance only. They have no appellate jurisdiction whatsoever.

Under Section 9 of the Magistrates Court Act the civil jurisdiction includes:

 

(i)         Where the proceedings concern a claim under customary law;

 

(ii)       Civil cases where the value of the subject matter in dispute does not exceed the amounts set for each court.

5.3.3                 Kadhi Courts

Kadhi Courts are established under art 170 of the Constitution of 2010 as subordinate courts. The jurisdiction of a Kadhi court is 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.

Tribunals are usually established by Acts of Parliament.

 

5.3.4                 Courts Martial

Under part VIII of the Armed Forces Act, cap 199, Parliament and the Chief of Defence Forces have the power to establish a court martial in Kenya.

Courts martial have power to try persons for any offence and to mete punishment. A court martial is convened to deal with a specific matter. There is, therefore, no permanent structure.

People to be tried by courts martial include members of the Army, Air Force, the Navy and their reserves. However, the court does not apply to the police force. The courts martial exercises limited criminal jurisdiction, under only one type of law —military law.

Jurisdiction is penal or disciplinary and designed to ensure discipline in the Armed Forces. The cases tried include insubordination, cowardice, fraud, theft, aiding an enemy and neglect of duty. Appeals from the decisions of the courts martial lie with the High Court, which must grant leave before the appeal is heard.

5.3.5                 Children’s Court

Part VI of the Children Act (No 8 of 2001) establishes the Children’s Courts. As a subordinate courts of any class (under the First Schedule to the Criminal Procedure Code). The Act empowers the Chief Justice may, by notice in the Gazette, appoint a magistrate to preside over cases involving children in respect of any area of the country.

The Jurisdiction of the court includes:

 

(i)         Conducting civil proceedings on matters set out under the Act;

 

(ii)       Hearing any charge against a child, other than a charge of murder or a charge in which the child is charged together with a person or persons of or above the age of eighteen years;•

(iii)     Hearing a charge against any person accused of an offence under the Act;

 

(iv)     Exercising any other jurisdiction conferred by this or any other written law.

Other Tribunals and Quasi-Judicial Bodies

·         Business Premises Rent Tribunal - was established under the Landlord and Tenants (Shops, Hotels and Catering Establishments) Act Cap 301 Laws of Kenya.

·         Rent Tribunal – Was established under the Rent Restriction Act Cap 296 Laws of Kenya;

·         The Cooperative Tribunal - established under Section 77 of the Cooperative Societies Act;

·         Licensing Boards - established under myriad Acts;

 

·         Land Disputes Tribunal – now abolished was established under the Land Disputes Tribunals Act of 1990.

Jurisdictional Question

5.5.1                 Original Jurisdiction of Courts

The Supreme Court, the High Court and the Subordinate courts have this Jurisdiction. This is not a jurisdiction of the Court of Appeal.

5.5.2                 Appellate Jurisdiction

Appeals are not as a matter of right but are possible under provisions of statutes. In the case of human rights, the Constitution grants the right to appeal.

 

In Lawrence Nduttu & 6000 Others v. Kenya Breweries Ltd & another,12 the Supreme Court was asked to determine whether the mere allegation of a violation of human rights by a litigant in his/her pleadings give rise to an automatic right to access the Supreme Court on appeal and whether the Court required to assume "supervisory appellate jurisdiction" and inquire into the matter. The court held that:

(1)   Only two types of appeals lie to the Supreme Court from the Court of Appeal.

a.       The first type of appeal lies as of right if it is from a case involving the interpretation or application of the Constitution. In such a case, no prior leave is required from this Court or Court of Appeal.

 

 

¹² Supreme Court, Petition 3 of 2012 [2012]eKLR.

b.      The second type of appeal lies to the Supreme Court not as of right but only if it has been certified as involving a matter of general public importance. It is the certification by either Court which constitutes leave. This means that where a party wishes to invoke the appellate jurisdiction of the Court on grounds other than that the case is one which involves the interpretation or application of the Constitution, then such intending appellant must convince the Court that the case is one involving a matter of general public importance. If the Court of Appeal is convinced that such is the case and the certification is affirmed by the Supreme Court, then the intending appellant may proceed and file the substantive appeal. The question as to what constitutes "a matter of general public importance" is one that is bound to be addressed by the Supreme Court in the foreseeable future as litigants seek certification or leave to lodge appeals on that basis.

(2)   The appeal was not based on Article 163 (4) (b) of the Constitution of Kenya, 2010 hence the appellants did not need to obtain prior leave or certification by either the court of Appeal or the Supreme Court before filing their Appeal.

Even if it were to be assumed that the Court had appellate jurisdiction in appeals against interlocutory orders, the interlocutory order the nature of which was being appealed against in the case in question was not one that would inspire the Court to exercise jurisdiction in favour of the appellants. At any rate, such a scenario could revive the question as to whether prior leave of the Court would be necessary.

5.5.3                 Special Jurisdiction

It has been held by the Supreme Court in Samuel Kamau Macharia and another v. Kenya Commercial Bank Limited and 2 others, Application No. 2 of 2011(regarding the Supreme Court Act conferment of jurisdiction to the Supreme Court to review the decisions of judges removed through vetting) that Section 14 of the Act was unconstitutional insofar as it purported to confer “special jurisdiction” upon the Supreme Court, contrary to the express terms of the Constitution. Although Parliament had good intentions in providing for the “extra” jurisdiction for the Supreme Court, as embodied in Section 14 of the Supreme Court Act, ought to have been anchored under Article 163(4) of the Constitution, or under Section 23 of the Sixth Schedule on “Transitional Provisions”.

Judicial Review and the Writ Jurisdiction of the Superior Courts The main method through which the court will ensure that the Executive does not abuse its powers is through judicial review over executive action. At common law, actions or cases were commenced by a writ obtained from the royal office, the chancery. Every complaint

had a separate writ. The writ was a document which stated the nature of the complaint and commanded the sheriff of the country where the defendant resided to ensure that the defendant attended court on a specified date.

Some of the writs that developed in common law include:

 

(i)             Habeas corpus - This is where the court orders that a person who has been detained/ arrested without legal justification should be released

(ii)           Certiorari - where lower courts are directed to produce the record of its proceedings

 

(iii)         Prohibition - orders from high court to lower courts preventing them from hearing or continuing to hear a matter where in is beyond the jurisdiction of that court or it is in violation of the rules of natural justice.

(iv)          Mandamus - where order issued on person or body commands them to perform a certain duty.

In Centre for Rights Education & Awareness (Crew) & others v. The Attorney General consolidated with Patrick Njuguna & another v the Attorney General & another,13 the constitutionality of Presidential appointment County Commissioners under the new Constitution was challenged. It was held:

In applying Article 129, 131, 132 (2), 2, 3, 10 ,20 , the 47 County Commissioners appointed by the President in which only 10 out of 47 were women did not meet the constitutional requirements at Article 27 (8) and violated the non- discrimination provisions of Article 27.

In referring to the principle of progressive realization the interpretation in the case of Milka Adhiambo Otieno & Another -v- The Attorney General & Others, Kisumu High Court Petition No. 44 of 2011 was upheld. It went further with the view that the phrase ‘progressive realization’ is applied to those circumstances where an allocation of limited resources is required.

 

 

 

¹³ High Court, Nairobi, Petition 208 & 207 of 2012.

The appointments failed the test of constitutionality by disregarding the national values and principles set out at Article 10(b) and the principle contained in Article 27(8) of the Constitution.

With regard to public appointments, it is critical to have public participation and consultation. The publication of the Gazette Notices presented a fait accompli to the country and thus did not respect the values and principles of the Constitution.

Section 23 and 24 of the former Constitution, were not saved by the Transitional Provisions contained in Schedule 6 of the Constitution. Consequently, the President could not make any appointments under the former constitution.

Session 6

THE RULE OF LAW, CONSTITUTIONALISM, SEPARATION OF POWERS AND CHECKS AND BALANCES AS BASELINES FOR THE KENYAN LEGAL SYSTEM

Introduction

As noted at the beginning, the legal system a country includes the set of rules of substance and procedure as well as the institutions relating to the governance of social behaviour and resolution of disputes which arise in the process, and includes the underlined social values and attitudes which affect the operations of such values.

In the context of Kenya, doctrines of the rule of law, constitutionalism, separation of powers and checks and balances are some of the overarching values that underlie the legal system and determines the methods through which they are operationalised, thus worth of particular attention here.

The Rule of Law

The rule of law is fundamental to democratic order. Aristotle said more than two thousand years ago, "The rule of law is better than that of any individual." Lord Chief Justice Coke quoting Bracton said in the case of Proclamations (1610) 77 ER 1352) in the UK that. “The King himself ought not to be subject to man, but subject to God and the law, because the law makes him King.”

6.2.1                 Dicey's rule of law

The rule of law in its modern sense owes a great deal to the late Professor AV Dicey. Professor Dicey's writings about the rule of law are of enduring significance. In his 1885 book, An Introduction to the Study of the Law of the Constitution (often abbreviated as Law of the Constitution), Dicey laid out his three principles of the rule of law thus:

(i)         No punishment may be inflicted on anyone other than for a breach of the law;

 

(ii)       Irrespective of rank and status, all men are equal under the law; and

(iii)     The rights and freedom of citizen are best protected under the common law.

 

1)       Absence of arbitrary power

 

The first principle involves the absence of arbitrary power on the part of the government and prevents it from making retrospective penal law. This means that no man is punishable except for a distinct breach of the law of the land. In order to comply fully with this requirement, laws should be open and accessible, clear and certain.

Under social contract theories, the individual citizen transfers his rights to the government. To express it in another way, the individual citizen owes allegiance to the Crown in return for protection of the Crown. The doctrine of allegiance incorporates the idea of obedience to law - both on the part of the citizen and the government.

Under the rule of law, the extent of the State's power and the manner in which it is exercise is limited and controlled by law. This control is aimed at preventing the State from acquiring and using wide discretionary powers. In Dicey's view, inherent in discretion is the possibility of it being used in an arbitrary manner and will be open to abuses.

If retrospective penal law is imposed, the individual will be placed in the position where his conduct was lawful at the time of his action but, subsequently held to be unlawful.

The court has always construed penal statutes narrowly and will be slow to find that Parliament intended to impose retrospective liability. If the Act of Parliament is expressed in language which is fairly capable of either interpretation, then the court would elect to construe it as prospective only.

In Waddington v Miah (1974), the House of Lords interpreted the Immigration Act 1971 to disallow it having a retrospective effect using Article 7 of ECHR, which guarantees freedom from retrospective application of laws.

2)       Equality before the law

 

Dicey emphasise the notion that government itself is also subjected to law and that everyone shall be subjected to the law, irrespective of rank and positions. In the words Lord Denning in Gouriet: "Be ye ever so high, the law is above thee."

The idea of equality before the law is subjected to so many exceptions. In so far as equal powers are concerned, it must be recognised that the police have powers over and above ordinary citizen (under common law). Ministers also do have power to enact delegated legislation and the government exercises prerogative powers. Members of Parliament have immunities not available to citizen. In the words of Sir Ivor Jennings, ‘No two citizens are entirely equal.’

The constitutional principle of the rule of law serves to bridge the gap between the legal doctrines of parliamentary sovereignty and the political sovereignty of the people ... The rule of law therefore assists in preventing the subversion of the sovereignty of the people by manipulating the legal sovereignty of Parliament.

The evidence for the notion of equality before the law is neither clear nor uncontentious. There remains room for doubt and arguments.

3)       The protection of rights under Common law

4)       Dicey laid great emphasis on government by law, rather than by men.

 

Dicey's preference demonstrates a faith in the judiciary. In his view, the constitution is pervaded by the rule of law on the ground that the general principles of the constitution (e.g. the rights to personal liberty and the rights of a fair trial) are the result of judicial decisions.

It is essential to recognise that Dicey was writing from a particular political perspective. He was a committed believer of free market operations and was opposed to any increase in State activity that would regulate the economy. Thus, the third limb of Dicey may look unsustainable nowadays. In the UK, for example, the enactment of the Human Rights Act 1998, which incorporated rights protected under the ECHR included the obligations of the government to respect human rights.

6.2.2                 Essential characteristic of the rule of law

While there is no set definition of the rule of law encompassing all its practices, there is a basic realm of common principles as to what the rule of law entails. For example, Rachel Kleinfeld Belton identifies five common principles of the rule of law:

(i)           A government bound by and ruled by law;

(ii)         Equality before the law;

 

(iii)       The establishment of law and order;

 

(iv)       The efficient and predictable application of justice; and

 

(v)         The protection of human rights.

 

Belton also identifies a second definition for the rule of law that is based on the institutions or instruments by which the ends of rule of law are achieved. These include:

(i)           The existence of comprehensive laws or a constitution based on popular consent;

 

(ii)         A functioning judicial system;

 

(iii)       Established law enforcement agencies with well-trained officers.

 

The influential political theorist Joseph Raz, for his part, in his work ‘The Rule of Law and Its Virtue,’ (The Law Quarterly Review, volume 93, 1977 pg. 195)  identified several principles that may be associated with the rule of law:

(i)             That laws should be prospective rather than retroactive;

 

(ii)           Laws should be stable and not changed too frequently, as lack of awareness of the law prevents one from being guided by it;

(iii)         There should be clear rules and procedures for making laws;

 

(iv)          The independence of the judiciary has to be guaranteed;

 

(v)            The principles of natural justice should be observed, particularly those concerning the right to a fair hearing;

(vi)          The courts should have the power of judicial review over the way in which the other principles are implemented;

(vii)        The courts should be accessible; no man may be denied justice;

 

(viii)      The discretion of law enforcement and crime prevention agencies should not be allowed to pervert the law.

According to Raz, the validity of these principles depends upon the particular circumstances of different societies, whereas the rule of law generally “is not to be confused with democracy, justice, equality (before the law or otherwise), human rights of any kind or respect for persons or for the dignity of man”.

Constitutionalism

This refers to the idea that the conduct of the government and the exercise of state power should be limited according to certain established and enforceable rules. This concept has to do with the degree to which the constitution functions as a real limitation in reference to which a state is administered. It is, therefore, possible to have a Constitution without actual constitutionalism.

The factors to consider while assessing constitutionalism are:

 

(i)           Does the constitution or the law impose any limits to the power of the state?

 

(ii)         Is the constitution hierarchically superior to other legal norms?

 

(iii)       What is the degree of entrenchment of the constitution, i.e., can it be easily be amended?

(iv)       What degree of separation of powers exits?

 

According to De Smith:

 

Constitutionalism is practiced in a country where the government is genuinely accountable to an entity or organ distinct from itself, where elections are freely held on a wide franchise at frequent intervals and where political groups are free to organize and to campaign in as well as immediately before elections with a view of representing themselves as an alternative government and where there are legal guarantees of basic liberties and enforced by an independent judiciary.

The core elements of constitutionalism include:

 

(i)           The recognition and protection of fundamental rights and freedoms;

 

(ii)         Separation of power;

 

(iii)       An independent judiciary;

 

(iv)       The review of constitutionality of law; and

 

(v)         The control of the amendment of the Constitution.

In countries where there exists a written Constitution, the Constitution invariably enjoys a superior position within the legal framework through its entrenchment and constitutionalism is protected by ensuring that the key tenets enshrined within the principles enjoy a higher level of protection. The Constitution is regarded as the first law within which framework of details of written rules and practices have to be laid out. The theory behind the supremacy of the Constitution is that it the Constitution embodies a contract between the governor and the governed and therefore the Constitution must not be altered in the same manner as ordinary legislation. The constitution is the product of the exercise of the constituent power in the people and it is from it that all the other legislation or laws derive their authority.

In the Kenyan context, the concept of the supremacy of the Constitution is captured under article 2 of the Constitution, similar to section 3 of the repealed Constitution. It is provided that, “The Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government; No person may claim or exercise State authority except as authorised under the Constitution.

(i)  The validity or legality of this Constitution is not subject to challenge by or before any court or other State organ; (ii) and any law, including customary law that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of the Constitution is invalid.

Section 47 of the repealed Constitution was concerned with the procedure of amendment and provided under subsection 2:

A Bill or an Act of Parliament to alter this Constitution shall not be passed by the National Assembly unless it has been supported on the second and third readings by the votes of not less than 65% of all the members of the Assembly (excluding ex-officio members).

Currently, the constitution in Chapter Sixteen provides the procedure for its amendment. Whereas article 256 provides for amendment by Parliamentary Initiative, art 257 talks of amendment by Popular Initiative. Furthermore, some amendments can only be made through a referendum.

Separation of Power and the Concept Checks and Balances

6.4.1                 Introduction

The separation of powers is a constitutional principle designed to ensure that the functions, personnel and powers of the major institutions of the state are not concentrated in any one body. It ensures diffusion rather than a concentration of power within the state.

There is no strict separation of powers under our Constitution. Instead, while some separation of powers exists, it is more accurate to speak of a system of checks and balances which ensures that powers are not abused.

6.4.2                 The Principle of Separation of Powers

The fundamental purpose of the separation of powers is to avoid the abuse of power and thereby to protect the rights and liberties of citizens.

The concept itself is of great antiquity and can be attributed to Aristotle (384–322 BC); however, the clearest exposition of the doctrine can be found in the French writer Charles- Louis de Montesquieu’s De l’esprit des lois (1748). In essence, Montesquieu states that the three organs of government – the executive, legislature and judiciary – should each have a discrete and defined area of power and that there should be a clear demarcation of functions between them: this is true ‘separation of powers’.

Under a written constitution, the powers allocated to various institutions will be clearly defined. It should however be noted that even under a written constitution a complete separation of powers is not possible, and that without some degree of interaction between the institutions there would be constitutional deadlock. For the purpose of analysis, the subject may thus be broken down by considering the extent to which the executive and legislature, executive and judiciary, and judiciary and legislature overlap and interact.

Under this doctrine, it is argued that Government organs must be separated to ensure proper and easy functioning of state duties. The organs of the state will include executive, legislature and judiciary. They are supposed to be clearly defined. Their powers and duties should be clearly spelt. They should be autonomous without guidance from outside.

The aim of separation of powers is to prevent the abuse of public power through the concentration of power. Thus James Madison in Federalist 47:

The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny.

The other aim is to enhance the efficiency of government. Separation of powers entails:

(i)           Separation of functions: The powers of any one branch should be exercised solely and absolutely by that branch and not the other two. This means that the executive must not perform the functions of the legislature or the judiciary performing the functions of the executive. The legislature has the duty of making new law and amending existing law. The judiciary settles disputes between individual citizens and between the individual citizens and the state. While the executive carries out ordinary administration of the state.

(ii)         Autonomy and independence: That one branch should never be controlled and/or interfered with in the exercise of its powers.

(iii)       Separation of persons: That the same persons should not form or be part of more than one of the three branches of the Government. This means that the same people should not occupy the legislature, judiciary and the executive at the same time even if these bodies would be said to exist separately.

In Kenya the totality of governmental process fall into three broad divisions

 

(i)         Legislative (law-making);

 

(ii)       Executive; and

 

(iii)     Adjudicative.

 

6.4.3                 Weaknesses and Criticisms of the Doctrine of Separation of Power

Montesquie’s theory of separation of powers has been subject to attack on the grounds that:

(i)            The Government is an organic body, which cannot be separated into compartments. In practice, each organ needs assistance of the others. Complete separation of organs of Government is therefore practically impossible.

(ii)          Absolute separation would be undesirable because there would entail a spirit of competition and not co-operation within the Government resulting in clashes and deadlocks. Functioning of the Government in a proper way demands some co- existence and harmonious collaboration between the three organs. Separation of powers is, therefore, necessary only to the extent that it provides specialization of functions, division of labour and efficiency.

(iii)        The advocates of the theory were under the belief that the enjoyment of an individual’s rights depended solely on the separation of powers, but this is not the case as there are other determinant factors such as rule of law, constitutionalism, etc. Separation of powers alone does not guarantee personal rights and freedoms. The separation of powers theory does not also guarantee absence of arbitrary rule because the legislature may pass oppressive laws.

(iv)         There is the assumption that all the 3 arms of Government are equally important. For example the legislature can pass laws, which they do not repeal even if the judiciary declares that they offend the Constitution.

If the theory is taken to its logical conclusions there would be some undesirable results.

 

6.4.4                 Checks and Balances

Instead of absolute separation of powers, our constitutional system adopts a notion of checks and balances where the powers of one branch can be challenged by another branch. This is what the system of checks and balances is all about. Each branch has an effect on the other. The following examples, which are not exhaustive, can be given.

1)       Legislative Branch

a)       Checks on the Executive

·         Impeachment power: Both the National Assembly and the Senate participate in the removal of the President and the Deputy President (art 145). Trial of impeachments is done by the Senate while the resolution is by the National Assembly.

·         National Assembly approves departmental appointments by the President: The Chief Justice, Diplomats, and cabinet Secretaries etc.

·         National Assembly approves treaties.

 

·         National Assembly approves the exercise of the power to declare war.

 

·         President must deliver annual address to Parliament.

 

b)       Checks on the Judiciary

 

·         National Assembly approves the appointment of the Chief Justice and Supreme Court Judges.

·         National Assembly has power to set jurisdiction of courts.

 

2)       Executive Branch

a)       Checks on the Legislature

 

·         President can veto a Bill passed by Parliament.

 

b)       Checks on the Judiciary

 

·         Power to appoint Chief Justice and Judges of the Supreme Court; and

 

·         Pardon power.

 

3)       Judicial Branch

a)       Checks on the Legislature

 

·         Declaration of statutes as unconstitutional

 

The Supreme Court of Kenya stated in Speaker of the Senate and Another v Attorney- General and 4 Others, “… as a legal and constitutional principle…Courts have the competence to pronounce on the compliance of a legislative body, with the processes for the passing of legislation.” It clarified this position by explaining that the court:

…will not question each and every procedural infraction that may occur in either of the Houses of Parliament. The Court cannot supervise the workings of Parliament. The institutional comity between the three arms of government must not be endangered by unwarranted intrusions into the workings of one arm by another.”

Hence,

 

No arm of government holds a position superior to the terms of the law: for in a constitutional democracy, it is the people’s will, as expressed in the due operation of all dimensions of the Constitution that must guide the functioning of the organs of state.”

·         Decide on election petition; and

 

·         Decide on vacation of office.

 

b)       Checks on the Executive

 

·         Judicial review; and

 

·         Supreme Court settles presidential election disputes.

Session 7

THE DOCTRINE OF PRECEDENT AND THE STARE DECISIS RULE IN THE COMMON LAW LEGAL SYSTEM

Introduction

As stated earlier, legal methods refer to the manner in which those who make, activate, or operate the law use the legal system to arrive at specific legal consequences. The process of debate of administration, which is intended to produce a particular interpretation of the law either in itself or in relation to application to specific facts, is part of the legal method. Legal method is best seen as the process of arriving at specific consequences using legal tools in a specific context.

The Major Trial Systems

Earlier, it was noted that there are two major legal systems adopted the world over, the Common Law and Civil Law. One of the key distinctions between these systems is that whereas the common law (which has been adopted in Kenya by dint of its colonial heritage) is adversarial, civil law is inquisitorial. Hence, before we address the concept of stare deicisis as used in the adversarial common law system, we shall commence by looking at the distinctions that exist between these two major systems in the manner in which the court processes are undertaken.

7.2.1                 Inquisitorial System

Inquisitorial trial is a method of legal practice in which the judge endeavours to discover facts while simultaneously representing the interests of the state in a trial. The presiding judge in the trial is not a passive recipient of information. Rather, he is primarily responsible for supervising the gathering of the evidence necessary to resolve the case. He actively steers the search for evidence and questions the witnesses, including the respondent or defendant. Lawyers play a more passive role, suggesting routes of inquiry for the presiding judge and following the judge's questioning with questioning of their own. Lawyers’ questioning is often brief because the judge tries to ask all relevant questions.

The inquisitorial system was first developed by the Catholic Church during the medieval period. The ecclesiastical courts in thirteenth-century England adopted the method of adjudication by requiring witnesses and defendants to take an inquisitorial oath administered by the judge, who then questioned the witnesses. In an inquisitorial oath, the witness swore to truthfully answer all questions asked of him or her. The system flourished in England into the sixteenth century, when it became infamous for its use in the Court of the Star Chamber, a court reserved for complex, contested cases. Under the reign of King Henry VIII, the power of the Star Chamber was expanded, and the court used torture to compel the taking of the inquisitorial oath. The Star Chamber was eventually eliminated as repugnant to basic liberty, and England gradually moved toward an adversarial system.

After the French Revolution, a more refined version of the inquisitorial system developed in France and Germany. From there it spread to the rest of continental Europe and many African, South American, and Asian countries. The inquisitorial system is now more widely used in the world.

The court procedures in an inquisitorial system vary from country to country. Most inquisitorial systems provide a full review of a case by an appeals court. In civil trials under either system of justice, the defendant, or respondent, may be required to testify. A trial in an inquisitorial system may last for months as the presiding judge gathers evidence in a series of hearings.

7.2.2                 Adversarial System

In the adversary trials, two or more opposing parties gather evidence and present the evidence, and their arguments, to a judge or jury. The judge or jury knows nothing of the litigation until the parties present their cases to the decision maker. The defendant in a criminal trial is not required to testify before the decision is given in the adversarial system.

The goal of both the adversarial system and the inquisitorial system is to find the truth. But the adversarial system seeks the truth by pitting the parties against each other in the hope that competition will reveal it, whereas the inquisitorial system seeks the truth by questioning those most familiar with the events in dispute.

The adversarial system places a premium on the individual rights of the accused, whereas the inquisitorial system places the rights of the accused secondary to the search for truth.

The most striking differences between the two systems can be found in criminal trials. In most inquisitorial systems, a criminal defendant does not have to answer questions about the crime itself but may be required to answer all other questions at trial. Many of these other questions concern the defendant's history and would be considered irrelevant and inadmissible in an adversarial system. A criminal defendant in an inquisitorial system is the first to testify. The defendant is allowed to see the government's case before testifying, and is usually eager to give her or his side of the story. In an adversarial system, the defendant is not required to testify and is not entitled to a complete examination of the government's case.

A criminal defendant is not presumed guilty in an inquisitorial system. Nevertheless, since a case would not be brought against a defendant unless there is evidence indicating guilt, the system does not require the Presumption of Innocence that is fundamental to the adversarial system.

The decision in an inquisitorial criminal trial is made by the collective vote of a certain number of professional judges and a small group of lay assessors (persons selected at random from the population). Neither the prosecution nor the defendant has an opportunity to question the lay assessors for bias. Generally, the judges vote after the lay assessors vote, so that they do not influence the conclusions of the lay assessors. A two-thirds majority is usually required to convict a criminal defendant, whereas a unanimous verdict is the norm in an adversarial system.

The inquisitorial system does not protect criminal defendants as much as the adversarial system. Prosecutors in the inquisitorial system do not have a personal incentive to win convictions for political gain, which can motivate prosecutors in an adversarial system.

Most scholars agree that the two systems generally reach the same results by different means.

 

Some countries, such as Italy, use a blend of adversarial and inquisitorial elements in their court system.

Historical Development of the Doctrine of Precedent within the Common Law System

The doctrine of precedent, that is, upholding decisions made in previous similar cases, have for many hundreds of years been important in the development of English law, but until the latter part of the nineteenth century were only persuasive; that is, a judge would be influenced by the decision in a previous case, but did not consider himself bound by it.

The modern doctrine of precedent, under which a judge is bound by the decision in a previous case, even if he considers it to be unjust or illogical, is of comparatively modern origin.

In the early days of common law, judges considered that their judgments were merely declaratory; common law was based on general custom, and they were merely enunciating what that custom was. This attitude left no room for the development of a doctrine of precedent. In any event, there was no method of recording judgments fully and accurately.

The development of printing and the improvement in the standards of reporting meant that from the sixteenth century onwards more attention was paid to decisions in previous cases.

By the early nineteenth century it had been accepted that regard must be paid to previous decisions and that it was not for the courts ‘to reject them and abandon all analogy to them’. Later in the nineteenth century two events occurred which laid the groundwork for the establishment of the system of binding precedent in England:

In 1865 the Council of Law Reporting was created, and this ensured that for the future there would be a consistent and reliable system of reporting cases. There had been many earlier series of reports, but their reliability varied considerably;

The whole system of courts was reorganised by the Judicature Acts 1873-1875 and the Appellate Jurisdiction Act 1876, and this made easier the task of recognising the hierarchy of courts.

This system was adopted in Kenya by virtue of the Judicature Act. It is provided in the Judicature Act that: Insofar as written laws do not extend or apply, the substance of the common law, the doctrines of equity and the statutes of general application in force in

England on the 12th Aug 1897, and the procedure and practice observed in courts of justice in England at that date will be applied.

Judicial Interpretation and Stare Decisis

This is the primary role of judges in the common law system. The best point to start while considering the role of judges in the common law system is the doctrine of precedent. Precedent refers to the idea that judges make law in the course of resolving disputes in common law indication.

The doctrine of precedent can best be summed up in the idea that in “like cases should be treated alike”. Therefore all things being equal cases with similar facts and issues in dispute should be disposed of consistently by the courts.

Under common law, the obligation on a Judge is that precedence must be followed whether the Judge agrees with that reasoning or not. In this regard precedent could either be binding to a Judge or it may merely be persuasive. Judges have a duty to follow binding precedents but not the persuasive ones. An example of a persuasive judgment would be that of another jurisdiction for example English Courts decisions are of a mere persuasive authority in Kenya.

When Judges follow binding precedents they observe the principle known as stare decisis (also known as the doctrine of binding precedence). This means that once an issue of law is decided in the courts, it will be normally be binding on courts lower down the hierarchy and in some circumstances on courts at the same level with the hierarchy. This doctrine signifies that decisions are to be followed because judges feel obligated to do so no matter their view on the merit of the precedent are they feel obligated to do so and not simply that precedents are to be followed because judges think that they are good solutions to be imitated.

The principle of stare decisis is therefore said to be paradoxical. On the one hand a court has the power to decide only the dispute before it and the decision that it announces is binding in like cases. On the other hand it is left to the court deciding future cases to determine whether those cases are like the prior case and therefore whether the prior case must be followed. The paradox is that a prior case binds the court but only if the court decides that the prior case is binding.

This paradox has led many lawyers to come to appreciate that the common law is not a set of fixed rules but rather a process. It is a process whereby later cases are decided in a way that seems consistent with prior cases, although it is only when the later cases have been decided that the true meaning of the prior cases becomes known. By continually deciding which cases are similar or dissimilar to prior cases, courts are in effect shaping the concept of the previously announced rules. These rules are defined as they are applied, and the law is therefore in a constant state of evolution, explication and elaboration. (Vandevlde K.J. Thinking like a lawyer Westview Press 1996 P 35).

The doctrine of stare decisis is fundamental to the common law system which is based on judge made law. It is what distinguishes common law system from civil law system. In the latter system the fundamental law is the legislation also known as Code and the obligation on the judges is to faithfully interpret the code rather than to follow precedent. By contrast in the former system it is the judge made law which is fundamental and the obligation of judges is to follow decisions made by courts high up in the hierarchy in the past.

Judicial Precedents

It is however important to note that not everything said by a judge when giving a judgment constitutes a precedent. This status is reserved for the Judges of superior courts’ pronouncement on the law.

A judge is only obliged to follow a precedent if:

 

(i)         There are numerous factual similarities between the earlier case and the one before him;

(ii)       The inevitable similarities are relevant.

 

(iii)     If the facts upon which the precedent is predicated are stated at a higher level of generality; for example in the prior case it was held that presence of a concealed pit on the land gave rise to a duty on the part of the landowner to warn a guest but the case before the court involved a guest who fell down a slope. The court characterized the prior case as involving “hazard rather than concealed pit. For that reason the decision of the prior case was binding on the case before the court.

(iv)     If the prior case is characterized not in terms of its facts but in terms of the underlying policy judgment. (For example landowner’s duty to warn guests of pits may be taken to mean an imposition of a duty on manufacturers to warn consumers on effects in products.

Ratio Dicidendi and Obiter Dictum

In giving judgment in a case, the judge will set out the facts of the case, state the law applicable to the facts and then provide his or her decision.

Rupert Cross says: “ratio decidendi is a rule of law expressly or impliedly treated by the judges as a necessary step in reaching his conclusion”. It is only the ratio decidendi (the legal reasoning or ground for the judicial decision) which is binding on later courts under the system of judicial precedent. Salmon defines: "the ratio decidendi may be described roughly as the rule of law applied by and acted on by the court, or the rule which the court regarded as governing the case.”

Any observation made by the judge on a legal question suggested by the case before him or her but not arising in such a manner as requiring a decision is known as obiter dictum (a saying by the way). An obiter dictum is a by-product of the original judgment. They are only remarks and opinions of the judge. A dictum is a rule of law stand by a judge which was neither expressly nor impliedly treated by him as a necessary step in reaching his conclusion. Obiter dicta are unrealistic and contrary to current practice. The rules of law based on “hypothetical facts” are mere dicta. If the result is the same, giving no affect on the decision, then it is “obiter dictum”.

There may several reasons for a decision provided by the judge in any given judgment and one must not assume that a reason can be regarded as 'obiter' because some other 'ratio' has been provided. Thus, it is not always easy to distinguish ratio decidendi from obiter dictum when evaluating the effects of a particular decision.

Good Hart propounded “material test". The rules of law based on "material facts" are ratio decidendi. It is the best method in finding "ratio".

Professor wambaugh propounded, on the other hand propounded the "reversal" test. According to this method, the decision and reasons given by the judge shall be reversed and observed. If the result is quite opposite, then it is "ratio". It is also the best way in finding "ratio" of case.

The search for the ratio of a case is a process of elucidation; one searches the judgment for the abstract principles of law which have led to the decision and which have been applied to the facts before the court.

As an example, in Donoghue v. Stevenson, a dead snail was in the bottle of ginger beer bought by a friend for Donoghue. She fell ill, and she sued the ginger beer manufacturer, Mr Stevenson. The House of Lords held that the manufacturer owed a duty of care to her, which was breached, because it was reasonably foreseeable that failure to ensure the product's safety would lead to harm of consumers. The ratio in the case would be that a person owes a duty of care to those who he can reasonably foresee will be affected by his actions.

Regarding to the obiter dicta of the case, Lord Atkin, one of the case’s judges, mentioned the “Neighbour Principle”, stating that a person is responsible not to harm another party or parties if he or she can directly affect them. In other word, the neighbour in this meaning is anybody who can be affected by the act or the omission of that person.

In Carlill v Carbolic Smoke Ball Company [1893), a case whether a woman who had used a smoke ball as prescribed could claim the advertised reward after catching influenza, Bowen

L.J. in the dicta said:

 

If I advertise to the world that my dog is lost, and that anybody who brings the dog to a particular place will be paid some money, are all the police or other persons whose business it is to find lost dogs to be expected to sit down and write me a note saying that they have accepted my proposal? Why, of course (not)!"

Methods of Avoiding Precedents

Judicial precedent is an important source of law as an original precedent is one which creates and applies a new rule. However, the later decisions, especially of the higher courts, can have a number of effects upon precedents. In particular, they may be:

(i)             Reversal - Where on appeal in the same case the decision is reversed, the initial decision will cease to have any effect.

(ii)           Overruling - This occurs where in a later case a higher court decides that the first case was wrongly decided

(iii)         Refusal to Follow - This arises where a court, not bound by the decision, cannot overrule it but does not wish to follow it so it simply refuses to follow the earlier decision.

(iv)          Distinguishing - It arises where an earlier case is rejected as authority, either because the material facts differ or because the statement of law in the previous case is too narrow to be properly applied to the new set of facts. Arguments for distinguishing a prior case mirror those for following it. These are:

a)     Differences between the two cases;

 

b)    Where similarities between the two cases are irrelevant;

 

c)     Where the precedent is characterized in the narrowest possible terms i.e. is not general;

d)    Where the policy judgment underlining the prior case does not apply to the current one

e)     Where if the precedent is applied to the case, stare decisis would also require that it is applied to other cases in which it will produce clearly undesirable results.

(v)            Explaining - It happens where a judge may seek to interpret an earlier decision before applying it or distinguishing it, thus the effect of the earlier case is varied in the circumstances of the present case.

(vi)          Per Incuriam - These are decisions made in error or mistakes and can be avoided.

E.g. a decision of the court that has been reached in total contradiction to the clear provisions of a statute is per incurium and may thus be avoided the courts.

Advantages and Disadvantages of Judicial Precedents

7.8.1                 Advantages

i)                    Certainty - Liberty to decide each case as one thinks right without any regard to principles laid down in previous similar cases would only result in a completely uncertain law in which no citizen would know his rights or liabilities until he

knew before what judge his case would come and could guess what view that judge would take on a consideration of the matter without any regard to previous decisions.

ii)                  Possibility of Growth - The system allows for new rules to be established and old rules to be adapted to meet new circumstances and the changing needs of society. Where a precedent is considered to be particularly valuable its scope can be extended in later cases: conversely, where a precedent is felt to be defective, its scope can be restricted by the process of distinguishing mentioned above.

iii)                Practicality - The rules of case-law that abound in our legal system do not derive from a particular theory of law, and do not attempt to deal with hypothetical circumstances. They are the result of the consideration of real situations which have come before the courts. Precedents are based on real facts unlike legislation and are thus practical.

iv)                 Wealth of Detailed Rules - No code of law could be devised which would provide the wealth of detail to be found in English case-law.

v)                   Uniformity - It brings uniformity to the law as similar cases are treated in similar manner.

7.8.2                 Disadvantages of Using Precedents

(i)      Rigidity - Once a rule has been laid down it is binding even if the decision is thought to be wrong, and altercation, other than by distinguishing, which is less than wholly satisfactory, is difficult. This disadvantage is modified to the extent that the Supreme Court is not bound by its own previous decisions, but people may be reluctant to bring appeals before the Supreme Court because of the intricacies of court processes that lead to that final appeal and, particularly bearing in mind that the Court will not usually overrule its own previous decision except in the most compelling circumstances. The possibility that case-law will be abrogated or modified by legislation alleviates the disadvantage of rigidity to some degree, but in practice it is rare for the legislation to interfere with case-law.

(ii)    Complexity - It is difficult to determine what exactly the ratio dicidendi is since in most cases, there are a number of reasons that determine how the court rules.

(iii)  Cases May Easily be Avoided - Cases can be easily avoided especially since it is possible to distinguish the facts in order just to avoid inconvenient precedents.

(iv)   Slowness of Growth - It does not allow for adaptation to Change easily. It may take a long time before a case comes to court in order to settle the question of what the appropriate law is. The system depends on litigation for rules to emerge. As litigation tends to be slow and expensive the body of case-law cannot grow quickly enough to meet modern demands. Where it is felt that a particular case has long been a precedent operates unfairly.

(v)     Bulkiness - There is so much law that no one can learn all of it. There is a danger that even an experienced lawyer may overlook some important rule in any given case. This is particularly so with those branches of law which have been developed mainly by case-law, as, for example, the law of torts.

Session 8

THE LEGAL PROFESSION IN KENYA

Take-home Assignment

 

Discuss the Legal profession operates in Kenya

Session 9

APPROACHES TO INTEPRETATION AND NON- STATUTORY AIDS

Approaches to Interpretation

Although the common law legal system is referred to as being based on judge made law, it is statutory law which is increasingly at the centre of the system. Whereas the primary source of law within the common law system is unwritten law, written law has since medieval times been seen as a technique used to strengthen, interpret regulate or amend the common law.

Once a piece of legislation has been passed by Parliament and thereafter received the presidential assent, it enters the statute books and will be implemented by the relevant arm of government. Questions may however arise about the scope, meaning and applicability of legislation to particular factual situations. This is when the judiciary is usually called upon to interpret the statutes.

Therefore whereas it is common place to say that the creation of law is the role of parliament, the function of interpretation leaves the judiciary with a considerable degree of latitude in determining what that legislation is.

Scholars have expressed the view that different approaches should be adopted in interpreting different kinds of legislation e.g. penal legislation should be interpreted in favour of the accused in circumstances where words used in the law are ambiguous. It is rather ten accused criminals go scot-free than have one innocent person convicted. In social welfare legislations (e.g. Housing, Education, Medical etc.), the Judge should bear in mind the social utility or good to be achieved be the legislation.

Some of the approaches taken by judges include:

 

8.1.1                 Analytical/Logical Approach

In this approach, the words are to be given meaning as they appear. This theory considers the judge as a mere mechanical instrument whose function is only to pronounce the meaning of law as expressed in a statute.

8.1.2                 Social Approach

This theory advocates a view of judge as a social engineer and therefore in interpreting statue the judge must endeavour to discuss and give effect to the social utility or good intended to be achieved by the particular statute.

8.1.3                 Free/Intuition Approach

This is by giving the Judges freedom to interpret law. This school of thought states that in interpreting statutes, the judge should declare what he considers to be the law even if his perception may not be in line with the strict meaning of words appearing in the statute even to depart from the expressed language contained in the statue.

Non-Statutory Aid

These entail rules of interpretation and presumption that the courts use to construe statutes. The part that follows will cover the primary and secondary/subsidiary rules of interpretation.

Primary Rules of Interpretation of Statutes

·         Literal Rule,

·         Golden Rule,

·         Mischief Rule

8.3.1                 The Literal Rule

This rule is also referred to as the “plain meaning rule.” By the literal rule, words in statute must be given their plain, ordinary or literal meaning. The objective of the court is to discover the intention of Parliament as expressed in the words used. This approach will be used even if it produces absurdity or hardship, in which case the remedy is for Parliament to pass an amending statute.

One of the leading statements of the literal rule was made by Tindal CJ in the Sussex Peerage Case (1844) 11 Olefin 85:

The only rule for the construction of Acts of Parliament is, that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver.

Lord Esher in R v Judge of the City of London Court [1892] 1 QB 273 said:

If the words of an Act are clear then you must follow them even though they lead to a manifest absurdity. The court has nothing to do with the question whether the legislature has committed an absurdity.

In Whitely v. Chappell (1869), the defendant had voted in the name of a person who had died, but was found not guilty of the offence of personating ‘any person entitled to vote’: a dead person is not entitled to vote.

In The Matter of Advisory Opinion of the Court under Art 163 of the Constitution, The Supreme Court of Kenya stated:

A court may not arrogate to itself jurisdiction through the craft of interpretation or by way of endeavours to discern or interpret the intention of Parliament, where the legislation is clear and there is no ambiguity.

8.3.1.1       Advantages of the Literal Rule

(i)           It encourages draftsmen to be precise.

 

(ii)         It respects the words used by Parliament.

 

(iii)       It prevents judges “rewriting” statute law, which only Parliament can do.

 

(iv)       Alternative approaches would make it difficult to predict how doubtful provisions might be “rewritten” by judges.

Judges have tended excessively to emphasis the literal meaning of statutory provisions without giving due weight to their meaning in wider contexts.

8.3.1.2       Criticism of the Literal Rule

(i)           It assumes that parliamentary draftsmen are perfect.

 

(ii)         It ignores the limitations of language.

 

(iii)       It can lead to absurd or harsh decisions and Parliament has to pass an amending statute.

8.3.2                 The Golden Rule

The golden rule provides that if the words used are ambiguous the court should adopt an interpretation which avoids an absurd result.

Where the meaning of words in a statute, if strictly applied, would lead to an absurdity, the golden rule is that the courts are entitled to assume that Parliament did not intend such absurdity, and they will construe the Act to give it the meaning which Parliament intended.

In Grey v Pearson (1857) 6 HL Cas 61, Lord Wensleydale said:

 

The grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther.

This became known as “Lord Wensleydale’s golden rule”. In its second, broader sense, the court may modify the reading of words in order to avoid a repugnant situation as in Re Sigsworth (1935).

So, for example, the Offences against the Person Act 1861, provided that “whosoever being married shall marry another person during the life of the former husband or wife” is guilty of bigamy. Interpreted literally, this definition is absurd on two counts:

(i)      The phrase ‘shall marry another person’ is meaningless in the context, as the essence of bigamy is that a married person cannot marry again while his first marriage subsists.

(ii)    The reference to a ‘former’ husband or wife is quite inappropriate. The word ‘former’ suggests that the original marriage no longer exists, but if that were the case the person marrying again would not be guilty of bigamy.

Despite the slipshod draftsmanship of the Act, however, the intention was clear, and the courts have interpreted the relevant section as meaning that a person who purports to marry another while his or wife or husband is still alive is guilty of bigamy.

8.3.2.1       Advantages of the Golden Rule

(i)           It allows judges to avoid absurd or harsh results which would be produced by a literal reading.

(ii)         It allows judges to avoid repugnant situations, as in Re Sigsworth.

8.3.2.2       Criticism of the Golden Rule

(i)              There is no clear way to test the existence of absurdity, inconsistency or inconvenience, or to measure their quality or extent.

(ii)            Judges can “rewrite” statute law, which only Parliament is allowed to do.

 

8.3.3                 The Mischief Rule

The main aim of the rule is to determine the “mischief and defect” that the statute in question has set out to remedy, and what ruling would effectively implement this remedy.

The Mischief Rule is a rule of construction that judges can apply in statutory interpretation in order to discover Parliament's intention. In applying the rule, the court is essentially asking the question: what was the “mischief” that the previous law did not cover, which Parliament was seeking to remedy when it passed the law now being reviewed by the court?

The rule was first set out in Heydon’s Case [1584]76 ER 637, and allows the court to look at the state of the former law in order to discover the mischief in it which the present statute was designed to remedy. According to the Court:

For the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered:

(i)                  What was the common law before the making of the Act?

(ii)                What was the mischief and defect for which the common law did not provide?

(iii)              What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth. And,

(iv)              The true reason of the remedy.

And then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.

In Smith v. Hughes, for example, the Street Offences Act 1959 made it an offence for a prostitute to solicit men ‘in a street or public place.’ The question was whether a woman who had tapped on a balcony and hissed at men passing by was guilty of an offence under the Act. Parker, L.C.J., found her guilty:

I approach the matter by considering what is the mischief aimed at by this Act. Everybody knows that this was an Act intended to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes. Viewed in that way, it can matter little whether the prostitute is soliciting while in the street or standing in a doorway or on a balcony.

In the case mentioned, it was comparatively easy to apply the mischief rule as the circumstances which caused the passing of the Act were well known.

8.3.3.1       Advantages of Mischief Rule

(i)             Some view the Mischief Rule as the best method of interpretation of laws. The Law Commission in England sees it as a far more satisfactory way of interpreting acts as opposed to the Golden or Literal rules.

(ii)           It usually avoids unjust or absurd results in sentencing;

 

(iii)         It abides the rule that it is Parliament that makes law but the legislature interprets the same.

(iv)          It allows judges to put into effect the remedy Parliament chose to cure a problem in the common law.

8.3.3.2       Criticism of the mischief Rule

(i)                    It is seen to be out of date as it has been in use since the 16th century, when common law was the primary source of law and parliamentary supremacy was not established.

(ii)                  It gives too much power to the unelected judiciary which is argued to be undemocratic.

(iii)                In the 16^th century, the judiciary would often draft acts on behalf of the king and were therefore well qualified in what mischief the act was meant to remedy. This is not often the case in modern legal systems.

(iv)                 The rule can make the law uncertain, susceptible to the slippery slope.

 

Rules of Language

8.4.1                 Ejusdem generis

This Latin word means ‘of the same kinds, class, or nature’.

When a list of two or more specific descriptors is followed by more general descriptors, the otherwise wide meaning of the general descriptors must be restricted to the same class, if any, of the specific words that precede them.

For example, where "cars, motor bikes, and motor powered vehicles" are mentioned, the word "vehicles" would be interpreted in a limited sense (therefore vehicles cannot be interpreted as including airplanes).

When the Sunday Observance Act, 1677, provided that no “tradesman, artificer, workman, labourer or other person whatsoever” should do certain things, the general phrase “other person whatsoever” was held to refer only “persons within the class indicated by previous particular words’ and not, therefore, to include such persons as farmers or barbers”.

This rule reflects an attempt “to reconcile incompatibility between the specific and general words in view of the other rules of interpretation that all words in a statute are given effect if possible, that a statute is to be construed as a whole and that no words in a statute are presumed to be superfluous” (Tribhuwan Prakash Nayyar v. Union of India, AIR 1970 SC 540).

The Supreme Court of India in Amar Chandra v. Collector of Excise, Tripura (AIR 1972 SC) held that this rule applies when:

·         The statute contains an enumeration of specific words;

 

·         The subjects of enumeration constitute a class or category;

 

·         That class or category is not exhausted by the enumeration;

 

·         The general terms follow the enumeration;

 

·         There is no indication of a different legislative intent.

 

8.4.2                 Noscitur a sociis

The Latin phrase means ‘known from associates’. The rule is that the meaning of an unclear word or phrase is to be determined on the basis of the words or phrases surrounding it.

In Bourne v. Norwich Crematorium Ltd. (1967), Stamp J. put it thus:

Sentences are not mere collections of words to be taken out of the sentence, defined separately by reference to the dictionary or decided cases, and then put back into the sentence with the meaning you have assigned to them as separate words...

In Foster v. Diphwys Casson (1887) 18 QBD 428, the matter involved a statute which stated that explosives taken into a mine must be in a "case or canister". Here the defendant used a cloth bag. The courts had to consider whether a cloth bag was within the definition. Under noscitur a sociis, it was held that the bag could not have been within the statutory definition, because parliament's intention was referring to a case or container of the same strength as a canister.

In Muir v. Keay (1875) In this case the Refreshment House Act stated that, Houses, Rooms, Shops or other buildings kept open for public refreshment and entertainment must be licensed. The defendant had a place called “The cafe “where persons were found during the night being supplied with cigars, coffee, beers etc. The defendant argued that the place was not for entertainment as there was no music and dancing. Held: The court held that what was happening at the place was entertainment.

8.4.3                 Expressio unius est exclusio alterius

This Latin words mean ‘the express mention of one thing is the exclusion of another,’ and the rule is commonly expressed in the short form as ‘Expressio unius Rule’.

The rule means that the expression of one thing is the exclusion of another. The rule arises from the argument that if the legislature had meant to include a particular thing within the ambit of its legislation it would have referred to that thing expressly. The legislature's failure to mention the thing becomes grounds for inferring that it was deliberately excluded. Although there is no express exclusion, exclusion is implied.

When one or more things of a class are expressly mentioned others of the same class are excluded. Thus a statute granting certain rights to “police, fire, and sanitation employees” would be interpreted to exclude other public employees not enumerated from the legislation.

Other Approaches

8.5.1                 Purposive approach

The purposive approach is one that will “promote the general legislative purpose underlying the provisions” (per Lord Denning MR in Notham v London Borough of Barnet [1978] 1

WLR 220). There will be a comparison of readings of the provision in question based on the literal or grammatical meaning of words with readings based on a purposive approach.

In Pepper (Inspector of Taxes) v. Hart [1993] AC 593, Lord Browne-Wilkinson referred to “the purposive approach to construction now adopted by the courts in order to give effect to the true intentions of the Legislature.”

8.5.1.1       Advantages of the Purposive Approach

·         It gives effect to the true intentions of Parliament.

 

8.5.1.2       Criticism of the Purposive Approach

·         It can only be used if a judge can find Parliament’s intention in the statute or Parliamentary material.

·         Judges can “rewrite” statute law, which only Parliament is allowed to do.

 

8.5.2                 Integrated Rule of Interpretation/ the Contextual Approach

Sir Rupert Cross Statutory Interpretation (3rd edn, 1995), suggested that there was an integrated approach to interpretation:

The judge begins by using the grammatical and ordinary or technical meaning of the context of the statute; If this produces an absurd result then the judge may apply any secondary meaning possible; The judge may imply words into the statute or alter or ignore words to prevent a provision from being unintelligible, unworkable or absurd; In applying these rules the judge may resort to various aids and presumptions.

Importance of the Rules Analysed

The relative importance of the rules of interpretation is itself of considerable controversy which raises theoretical and substantive issues about the role of a judge, the law making dimension of interpretation and the threat this poses to the abstract supremacy of written law.

The controversy may be reduced into two positions: The first position represents the judge as a passive actor in the process of interpretation, merely giving the words of the Act their natural meaning and applying that meaning to the situation in dispute. This stresses a mechanical representation of interpretation, emphasising the impartiality involved in

adjudication. This model is mostly sympathetic to the adoption of literal style of interpretation.

The second model rejects the notion that the foregoing can be the only role for the judge. The second model represents the judge as a party who undertakes an active role in the task of interpretation. The model stresses the role of the Judge as an active participant in the process of creating legal meaning. In this regard the Judge can resort to the whole range of resources within the legal culture which may lead to references to social policy, economics and other broad administrative and political considerations of the consequences of the rules to be applied. This model suggests a dynamic role for the Judiciary.

It is most sympathetic to the techniques of interpretation which seek to realise the purpose and objectives of legislation. Whereas the first model provides no threat to the law making role of the legislature, the second model potentially threatens the supremacy of written law in that the judge may be seen as a law maker with the capacity to change or even to undermine the supremacy of the written law by resulting to sources and materials outside the statutory provisions and thereby threatening its status.

Session 10

PRESUPMTIONS, EXTRINSIC AID AND STATUTORY AIDS TO INTERRETATION OF STATUTES

Presumptions

This is a non-statutory aid to the interpretation of Statutes. In their attempt to construe statutes, courts of law are guided by certain presumptions which include:

·         The Statute was not intended to Change or Alter the Common Law - Even though many statutes have that express intention which will be followed. But unless express provision is made, or the new law is irreconcilable with the statute or common law;

·         There is a presumption against excluding the court from determining the case;

 

·         There is a presumption that standard common law defences are available for new crimes, e.g., duress, self-defence, etc.

·         The Statute was not intended to affect the Crown – e.g. where the rules on health & safety did not apply to NHS kitchens;

·         Presumption that mens rea (guilty mind) is required for criminal offences;

 

·         The statute was not intended to interfere with vested rights of individuals;

 

·         The statute was not intended to impose liability without fault;

 

·         The statute was not intended to have extra-territorial effect;

 

·         The statute was not intended to be inconsistent with international law;

 

·         An accused person is presumed innocent until proven or has pleaded guilty

 

·         All un-repealed statutes remain law.

 

In prince of Hanover v. Attorney general, all issue of the person were British citizens, the law was un-repealed, so it was still law that applied to a person with whose country we were at war.

·         There is a presumption of compensation being paid where a statute deprives a person of property;

·         There is a presumption of not granting officials arbitrary discretion;

 

·         There is a presumption that Acts do not interfere with rights to private property;

 

·         There is a presumption against retrospective legislation;

 

·         Penal laws should be construed in favour of the person whose liberty is threatened.

 

Extrinsic Aid to Interpretation of Statutes

9.2.1                 Law Commission Reports and White Papers

In England, these have been admissible since the case of Davis v. Johnson [1978] AC 264, which said that the report may be used to identify the mischief the legislation is intended to remedy but not to construe the enacting words’ and other travaux préparatoires provided that it is material in the public domain clearly intended to be the first stage in the legislative process. If the document is a treaty, a literal construction is in conflict with the purpose of the treaty, or if the legislation is ambiguous (Fothergill v. Monarch Airlines Ltd. [1980] 3 WLR 209).

9.2.2                 Hansard

Hansard has been officially used (judges used it before this case unofficially) since the case of Pepper v. Hart, in which the question was whether the taxable benefit of providing the children of teachers with free education should be taxed at the nominal extra cost to the school, or at the normal cost of the school's fees. It was decided using Hansard that it should be taxed at the lower cost.

In this case it was said that if Hansard "clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words", then it is an admissible aid to construction.

However, it was said that ‘I cannot foresee any statement other than the statement of the minister or other promoter of the Bill is likely to meet the criteria’.

In addition it was said that ‘if a minister clearly states the effect of a provision and there is no subsequent relevant amendment to the Bill or withdrawal of the statement it is reasonable to assume that Parliament passed the Bill on the basis the provision would have the stated effect.’

Hansard is, of course, not binding on the courts - there is no reason why they should not ignore the intent of Parliament unless it is expressed in a statute. Hansard has the same legal status as any other interpretative aid.

The question arises whether Pepper v. Hart affects stare decisis, that is to say whether a court can overrule an otherwise binding case on the basis of Hansard showing that the previous construction was wrong. If this question were to be answered in the affirmative, magistrates’ courts could overrule the House of Lords.

Common sense might suggest that incorrect interpretations should be overruled, but there is the issue of separation of powers - according to the traditional doctrine of the separation of powers the judiciary must be free to reject the Hansard material, since it is nothing more than an interpretative aid, which were it to be binding, would make Parliament both legislator and interpreter: legislation has traditionally been seen as an abstract document not tailored to particular situations, but rather being a list of abstract principles interpreted and applied in individual cases by the judiciary; Taken this way, to give Hansard such as status would apparently contravene HA Hayek's conception of the rule of law.

9.2.3                 Dictionary Definitions

This implies a literalist construction of statutes, since a purposive approach would seek to enforce what Parliament intended, rather than enforce the meaning of what it said.

9.2.4                 Legal Textbooks

 

 

9.2.5                 Treaties

This is so especially where the law was intended to enact the treaty. This is also now found under art 2 of the Constitution of Kenya (2010).

Statutory aid to Interpretation of Statutes

These are means which are available in the statutes to assist in understanding of legislation. They are outlined and discussed below.

Defines many common terms, and it provides that its definitions are to be used in construing any Act that contains the words defined (unless a subsequent Act defines them differently); it also provides, for example, a rebuttable presumption that terms in the masculine gender also include the feminine, and that the singular includes plural.

9.3.1                 Interpretation and General Provisions Act (Cap. 2)

The long title of this Act provides that it is an Act of Parliament to make provisions in regard to the construction, application and interpretation of written law, to make certain general provision with regard to such law and for like purposes.

This Act contains a definition of various terms that commonly occur in written laws. However, Cap 2 does not apply in the interpretation of the Constitution.

In Hutton v. Esher UDC 1973 the question was: ‘Could "land" include buildings for the purposes of compulsory purchase?’ The Interpretation Act (which is similar in purpose to the Interpretation and General Provisions Act in Kenya) said that land included buildings unless stated otherwise, so the buildings were purchased.

9.3.2                 Definition section in a particular statute

Most aids of parliament contain a definition section which gives the meaning of various words appearing in that statute. This is usually in either Section 2 or otherwise, in Section 3 of the statute.

9.3.3                 The definition of terms implied by the rest of the Act: the ‘context rule’.

This closely relates to the rule that the statute must be read as a whole. According to

Halsbury’s Laws of England, 4th edition, Butterworths 1995, Vol 44(1), Para 1484;

 

It is one of the linguistic canons applicable to the construction of legislation that an Act is to be read as a whole, so that an enactment within it is to be treated not as standing alone but as falling to be interpreted in its context as part of the Act. The essence of construction as a whole is that it enables the interpreter to perceive that a proposition in

one part of the Act is by implication modified by another provision elsewhere in the Act…

In Amalgamated Society of Engineers v Adelaide Steamship,14 Higgins J rightly observed thus,

The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we consider the result to be inconvenient or impolitic or improbable.

In Jesse Waweru Wahome and Others v. Kenya Engineers Registration Board and others,15 where Engineering Graduates from Masinde Muliro University and Egerton University Challenged the refusal by the Engineers Registration Board to register them as trained engineers, the Court observed:

Statutory construction is a holistic endeavour and the cardinal rule of construction is that a statute should be read as a harmonious whole, with its various parts being interpreted within their broader statutory context in a manner that furthers statutory purposes.

9.3.4                 Headings and Side-notes

These have minimal utility as they are included there by drafters who are not responsible for law-making.

9.3.5                 The short title

This is used for ease of reference and only has minimal aid to interpretation.

 

9.3.6                 The long title and preamble

Many Acts have preambles, and all Private Acts and all old Public Acts have long titles, but they cannot prevail over clear enacting words. For example, in Fisher v Raven 1964, the long title was used to decide that debtors for the purposes of Act were ordinary debtors.

 

 

 

 

 

 

 

 

 

¹⁴ (1920) 28 CLR 129 at 161-2.

¹⁵ PETITION NO. 149 OF 2011 consolidated with PETITION NO. 207 OF 2011.

Session 11

ALTERNATIVE DISPUTE RESOLUTION PROCESSES

Introduction

Alternative dispute resolution method commonly referred to ADR according to Justice Nyamu mean dispute resolution methods other than litigation and these include mediation, early neutral evaluation, mini-trial, expert determination adjudication and arbitration.

Article 159(2)(c) of the constitution states that “in exercising judicial authority, the courts and tribunals shall be guided by the following principle: alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional mechanisms shall be promoted.”

Alternative dispute resolution is also catered for under section 59A of the Civil Procedure Act and order 45A of the Civil Procedure Rules. All mediated agreements may be registered and enforced by the court under section 59D of the Civil Procedure subject to availability of mediators.

The Chief Justice speech on the same during presentation of the Progress Report in the Transformation of the Judiciary the need of Kenyans to engage ADR as means of dispute resolution said that:

I would like to point out that the Judiciary will not change until those who serve in it and the public change their attitude and behaviour. When we say that judicial authority is derived from the people the implication is that the people should be law abiding – make use of other fora of justice such as family, churches and mosques and other alternative dispute resolution mechanisms because court actions are, in their very nature, adversarial. Kenyans must see themselves as the change they wish to see in the Judiciary.

Advantages and Disadvantages of ADR

10.2.1             Advantages

Alternative dispute resolution methods have the following advantages over court litigation:

 

(i)            Speedy Dispute Resolution: - ADR is often quicker than going to trial; a dispute may be resolved in a matter of days or weeks instead of months or years. Litigation

through courts takes a lot of time. There are incidents where the cases have taken a long period of time leaving the parties frustrated lot.

(ii)          Cost Effectiveness: - ADR is often less expensive, saving the litigants court costs, attorney's fees and expert fees. Litigation through courts is very expensive. Most parties cannot pay the court fees and there alternative dispute resolution gives them an alternative way of conflict resolution that is pocket friendly.

(iii)        Control of the Outcome and Proceedings: - Alternative dispute resolution allows more participation and empowerment, allowing the parties the opportunity to tell their side of the story and have more control over the outcome.

(iv)         Flexibility of Procedures: - Alternative dispute permits the parties in choice of ADR processes and resolution of the dispute. Court litigation is sometimes too rigid requiring parties to follow the laid down procedures.

(v)           Enhanced Cooperation: - These methods of dispute resolution allow the parties to work together with the neutral to resolve the dispute and mutually agree to a remedy. The court process is adversarial and fails to propagate harmonious co-existence.

(vi)         Less Degree Involvement: - Alternative dispute resolution methods are often less stressful than litigation.

(vii)       Saves Courts Time: - An alternative dispute resolution method frees courts time to handle major cases and this helps in fast delivery of justice.

(viii)     Enhance Confidentiality: - Court cases, judgments and opinions are usually public record; the ADR process is confidential. If the parties settle through mediation or arbitration, no public record exists of what developed at the negotiation meetings or of the amount of the settlement.

(ix)         Customized Dispute Resolution: - International disputes can be resolved according to ground rules the parties agree upon in advance, thereby avoiding the uncertainty inherent in being subjected to the jurisdiction of foreign courts.

(x)           Less Work Place Distractions: - Workplace distractions and the emotional burdens imposed on the individuals involved in litigation, especially in employer-employee disputes, are minimized.

10.2.2             Limitation of ADR

However, alternative dispute resolution has some limitations namely: -

 

(i)      ADR may not be effective if it takes place before the parties have sufficient information to resolve the dispute,

(ii)    The neutral may charge a fee for his or her services.

(iii)  If the dispute is not resolved through ADR, the parties may then have to face the usual and traditional costs, such as attorney's fees and expert fees, lawsuits must be brought within specified periods of time, known as Statutes of Limitations and Parties must be careful not to let a Statute of Limitation run while a dispute is in an ADR process.

Conclusion

In conclusion, the advantage of alternative dispute resolution methods outweighs the litigation through court methods and should be encouraged. It greatly helps in the provision of access to justice. The bill of small claims court is at a very advanced stage in parliament and if it goes through, access to justice as a fundamental human would have achieved a milestone. Other jurisdictions like Zimbabwe, small court claims are already in operation and it has been very successful.

Session 12

ACCESS TO JUSTICE IN KENYA

Introduction

Access to justice can be defined as the right of individuals and groups to obtain a quick, effective and fair response to protect their rights prevent or solve disputes and control the abuse of power, through a transparent and efficient process, in which mechanisms are available, affordable and accountable. According to Jackline Martin (2007), access to justice involves both an open system of justice and also being able to fund the costs of the case.

Historical Aspects of Access to Justice

Access to justice can be equated to the right to fair and speedy trial. This was recognized by Magna Carta in 1202 where it was declared that “to no one will we sell, to no one will we deny the right of justice.” The Americans impressed by it declared it in their bill of rights that no person shall be deprived of life, liberty or property without due process of law and that the accused shall enjoy the right to speedy trial.

The right to fair and speedy trial was subsequently recognized by the Universal Declaration of Human Rights 1948, The United Nation Covenant on civil and Political Rights 1966 article 9(3) and the African Charter on Human and people rights 1981 article 7(1). It, therefore, means that the right to fair trial includes the right to speedy or trial within reasonable time. Most constitutions worldwide now recognize the right to fair hearing within a reasonable time.

In a democratic society as envisioned by Thomas Hobbes, where the governed relinquish a portion of their autonomy, the legal system is the guardian against abuses by those in position of power. Citizens agree to the limitations of their freedom in exchange for peaceful coexistence and they expect that when conflicts between or between the state and citizens arise, there is a place that is independent from undue influence, that is trustworthy and that has authority over all the parties. The courts in any democratic system are the place of refuge. Judiciary is primarily charged with administration of justice and protection of fundamental human rights.

Entails of Access to Justice

According to Tito (2011), traditionally access to justice embodied initially three components:

 

(i)                  That the rights-holders are aware of their legal rights and obligations and understand the processes of enforcing these rights (legal awareness),

(ii)                That the laws and policies are reflective of the peculiar needs and circumstances of the poor, excluded or the marginalized, and

(iii)              That there are institutions and structures in place through which the poor, excluded or marginalized can enforce their rights.

Constitutional Underpinning of Access to Justice in Kenya

Access to justice in Kenya is guided by article 48 of the Constitution of 2010. This article, “the State shall ensure access to justice for all persons, and if any fee is required, it shall be reasonable and shall not impede access.”

In provision of justice the parties concerned should be accorded fair hearing under article 50 of the Constitution. Access to justice is, therefore, a fundamental right under the bill of rights in Chapter Four.

The Constitution of 2010 recognizes the place of judiciary as an independent arm of the government apart from the executive and the legislature. Right from article 3, the Constitution vests sovereign power in of the people in the judiciary alongside other two arms of the government. This is unlike the repealed Constitution.

Article 159 provides that that judicial authority is derived from the people and vests in and shall be exercised by the courts and other tribunals established by or under the current Constitution. Judicial independence is entrenched by article 160. The guiding principles found under article 159 encapsulate the desire of and the will Kenyans hold for the courts. They provide that justice shall be done to all irrespective of the status, that justice shall not be delayed.

Alternative dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, justice shall be administered without

undue regard to procedural technicalities and the purpose and principles of the constitution shall be protected and promoted.

Judiciary Transformation Framework

It is based on the above the Judiciary under the aspired to achieve. Under the stewardship of Chief Justice Willy Mutunga, there were some achievements in addressing issues concerning access to justice. In the Judiciary Transformation Framework document (2012-2016), access to justice is given the first priority. The judiciary Transformation Framework document is anchored on four distinct but interdependent pillars and ten overlapping key result areas founded on the constitution, all these pillars have over overriding objective which is to achieve access to and expeditious delivery of justice to all. The four pillars are people focused delivery of justice, internal human resource capacity, infrastructure and resources and the use of ICT as enabler.

When delivering a speech during the progress report presentation, the Chief Justice acknowledges the weakness by judiciary by saying that “We found an institution so frail in its structures; so thin on resources; so low on its confidence; so deficient in integrity; so weak in its public support that to have expected it to deliver justice was to be wildly optimistic”. But there are challenges. These challenges include:

Drawbacks on Access to Justice in Kenya

10.6.1             Lack of legal literacy and publicity

Legal literacy is still very thin among the Kenyans. Knowledge of law belongs to the legal practitioners and a few educated elite. The ordinary 'Wanjiku' is disadvantaged and has always being ignorant of the laws of the land and yet ignorance of law is no defence. The efforts that are being done by the civil society and the government are very little. Kenyans are not aware of their constitutional rights and as such these rights are still trampled upon. Judiciary has for a long time remained an ivory tower. It has been aloof and separated from people. This trend made people to have phobia about the judiciary. In fact there are three places that people are said to fear to access because of the belief that when one goes to these places their return is no guaranteed. These places are the hospital, the police station and the courts. This perception has thrived due to lack of publicity about the judiciary.

Attempt to inform the public about the judiciary were begun by the former Chief Justice Evans Gicheru in what was called the judiciary open day. It did not succeed. To create public awareness about the judiciary the current Chief Justice organized the Judiciary marches day on 21st and 22nd, August 2012 in order to reach people. The theme of the marches day was taking justice to people and on these particular days all the court staff including the judges went out to meet people. They addressed people and there was question and answer sessions. Earlier on before the marches the Chief Justice had said through the media that “For a long time, the Judiciary had been isolated from the community that it served. This environment created a Judiciary that was unaccountable to the people. Poor management practices mushroomed as did opportunities for other arms of government to subvert justice. Through ongoing public outreach activities, the Judiciary seeks to develop its own voice. It will respond directly to the people and ultimately build faith in the institution and better deliver its mandate. Through a platform of dialogue and feedback, the Judiciary will nurture and sustain broad public support for its activities”. Therefore to create public awareness and publicity the judiciary has engaged media for instance the Kenya Law Reports that is responsible for publishing legal information materials is creating awareness about its existence so that people get informed. For easier access to information the judiciary can be reached by sending an inquiry to 5834 or emailing judiciary through its email address. Indeed these efforts should be applauded but still more is required not only from the judiciary but all other stakeholders for legal literacy to be achieved.

10.6.2             Procedural technicalities

Court procedures have for a long time been complex. They were procedural requirements that even qualified lawyers failed to comprehend and suits were suits were dismissed not because they did not have merit but people failed to follow procedural requirements. Sometimes dismissal on technicalities was quite unfair. In the case of Matiba v Moi the high court had allowed the applicant to file documents that had been signed on his behalf by his wife in an election petition. Moi appealed and the court of appeal threw out Matiba's case saying that documents signed by his wife were not authentic despite her being given power of attorney. This was a procedural technicality that stood on the way to access to justice.

The current Constitution did away to procedural technicalities. Under section 159 of the constitution (3)(b), justice shall be administered without undue regard to procedural technicalities. In the case of Jackson Kaliko Ndindio v Attorney General, Justice Ngungi observed that

Elsewhere in the new Constitution all courts are instructed to shun an obsession towards technical justice: Article 22 (3) (d) admonishes the court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities. Article 159 (2) (d) is in the same vein and instructs that justice shall be administered without undue regard to procedural technicalities.

In essence technicalities have been done away with so long as the applicant does not abuse the due process of law.

The same wish is captured in the Civil Procedure and the Appellate Jurisdiction Act under section 1A and B on overriding Objectives.

10.6.3             Poverty

Poverty is the greatest hindrance to justice. Although the constitutional principles state that justice shall be done to all regardless of the status as stated in article 159, majority of the Kenyans do not have even the modest mean to access justice and are kept away. The means of hiring a good lawyer are beyond reach of many and even where there is self-representation, the filing fees is prohibitive. Under article 22(1), every person has a right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed or is threatened. Sub article 2 of the same article provides that a person can act of behalf of another person whose rights have been violated. In sub article 3 the Chief Justice shall make rules to effect article 22 and no fee may be charged for commencing such proceedings. The Chief Justice is yet to make these rules. Article 50 sets out a right to a fair hearing, which includes the right of an accused person to have an advocate if it is in the interests of ensuring justice. This varies with the repealed law by ensuring that any accused person, regardless of the gravity of their crime may receive a court appointed lawyer if the situation requires it. Such cases may be those involving complex issues of fact or law; where the accused is unable to effectively conduct his or her own defence owing to disabilities or language difficulties or simply where the public interest requires that some form of legal aid be given to the accused because of the nature of the offence. In the case of

Davis Njoroge Macharia v. Republic, it was held by the court of appeal that “Under the new Constitution, state funded legal representation is a right in certain instances. Article 50(1) provides that an accused shall have an advocate assigned to him by the State and at state expense, if substantial injustice would otherwise result. Substantial injustice is not defined under the Constitution, however, provisions of international conventions that Kenya is signatory to are applicable by virtue of Article 2(6). Therefore provisions of the ICCPR and the commentaries by the Human Rights Committee may provide instances where legal aid is mandatory.” under the old constitution there was such provision under section77 but it clear and very specific like in the current constitution. In the criminal matters Advocates take on pauper briefs and again they are paid by the state.

In the Civil Procedure Act, Order 33 provides for one to sue as a pauper provided he or she meets the criteria set by the court. But again determining who is poor and who is not is very subjective.

10.6.4             Corruption and prejudice

There is a widely accepted principle of natural justice that there should be no hint of bias or prejudice in the administration and application of law.

The society has over the centuries evolved several principles of natural justice, three of the best known being: "Justice should not only be done but manifestly and undoubtedly be seen to be done" (Per Lord Hewart, C.J in R. v. Sussex Justices, 1924), "Judges, like Caesar's wife must be above suspicion" (Lord Bowen, J in Leeson v. General Council of Medical Education & Registration, 1889) and Justice must be rooted in confidence and confidence is destroyed when right-minded people go away thinking 'the Judge was biased' (Lord Denning, MR in Metropolitan Properties Ltd. v. Lannon, 1969).

Corruption has been the greatest hindrance to access to justice. There has a perception that justice has been for sale to the highest bidder hence the concept “why hire a lawyer when one can pay a judge”. Corruption in the judiciary is perceived to be practiced by the judicial officers, the paralegals and the stakeholders. Justice has been for the selected few living the poor people robbed and feeling helpless. The Ringera Commission sent a few officers home but unfortunately it never succeeded.

It is encouraging that the current Constitution sets high moral and professional standards for the judicial officers under chapter six and ten respectively. Those who were in the office prior to the commencement of the new constitution are being vetted and some have been sent home. Those who are being recruited are expected to have met the requirements of chapter six and ten and while in the office are expected to maintain high integrity and reject being compromised. Judiciary is now independent from other arms and the judicial officers are now paid well to avoid temptation. The Chief Justice has introduced measures to redeem the judiciary image and has told those under him to either change or perish. The public perception of corruption in judiciary is changing. In his speech during the delivery of Progress Report, the Chief Justice said this “ The ends of justice cannot be met when the Judiciary not only suffers an integrity deficit but is also perceived as the playground of the corrupt and the refuge of the inept. Corruption corrodes our humanity, undermines our institutions and sabotages our economy. In my inaugural address as Chief Justice, I pledged that never again should it be possible to speak about corruption and the Judiciary in the same breath. I meant”.

10.6.5             Inadequacy in Infrastructure

The judiciary is so frail infrastructure. To access the courts is a problem to those in rural areas as they are concentrated in urban areas. People have to walk long distances in the search of justice. The existing court buildings are inadequate and the judicial officers are forced to hear matters in the chambers instead of open courts. These hampers access to justice.

Currently, the judiciary is addressing the above issue by building more courts which are modern. Areas such as Garissa and Wajir now have mobile courts. With the more courts being built, the courts such as court of appeal, Industrial court and environment and land court are being decentralized in order to reach people

The Chief Justice while accepting the limitation of court building observed that “In pursuing the important objective of bringing justice closer to the people, we are establishing 14 new courts in places where the Judiciary has never before had a footprint. Additionally, 8 mobiles courts have been set up and 38 new vehicles released to serve court stations in historically marginalized areas. For the first time in Kenya’s history, a judge of the High Court of Kenya

has been posted to Garissa. More court stations will be subsequently established in Lodwar, Isiolo and other marginal districts including Archer’s Post, Wamba, Kakuma, Lokitaung, Lokichoggio and Loitoktok, as a way to reduce the cost of justice for litigants”.

10.6.6             Insufficiency in Personnel

The population of Kenya currently is slightly over 40 million. The number of judicial officers to serve this population has been very small. This has been partly due to the institution being starved off the resources and statutory regulations for example the Judicature Act which restricted the number of court of appeal to fourteen and the high court ones to 70. The Magistrates were also very less. These led to backlog of cases as the judicial officers were overburdened.

The problem has been addressed by entrenching the independence of the judiciary in the constitution and empowering it with more resources to recruit and train more judicial officers. There has been amendment to the judicature Act to allow employment of more judicial officers and lately there has been massive recruitment of judges and magistrate. Now there are special courts like Environment and Land Court and Industrial courts that have been established constitutionally to speed up cases. The Chief Justice using the powers donated to his has set up special divisions such as constitutional division, Criminal Division and Commercial division to speed up the hearing of the matters. Additionally, the judges have been given the Legal Researchers to undertake the research work.

10.6.7             Problem of Language

The legal profession's language has been the most un-understood. It begins with the drafters, lawyers down to the judicial officers. It is very common to come across the words as importunes, mutatis mutandis, order nisi and others that only the legal mind understands. According to Ann Asugah “our legislation is drafted in wordy fashion and uses archaic terms”. Sections can easily be broken down to subsections for clarity of ideas being communicated and for easy of interpretation. There is therefore need for drafters to deliberately adopt a more plain methodology of drafting to effectively communicate government policy to citizens. Until that happens, the citizenry will always view the law as

a preserve of lawyers and the courts. An informed citizenry helps in the growth of economy and the drafters need have their job well cut in this respect.

10.6.8             Limitation in Jurisdiction

According to Odiwour Kelly, Jurisdiction is the power of different courts to hear and determine dispute. Jurisdiction can either be geographical, functional, subject matter and pecuniary”. In the case of Owners and Masters of the Motor Vessel Lilian v Caltex Oil Kenya ltd (1989) KLR 1, it was held that:

The question of jurisdiction is a threshold issue and must be determined by a judge at the threshold stage, using such evidence as may be placed before him by parties. It is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court is then obliged to decide on the matters and where it does not have jurisdiction it should down its tools.

Jurisdiction limits other judicial officers’ powers to hear cases. Section five of the Judicature Act determines the jurisdiction of magistrates’ courts. Until the recent amendment through Act number 12 of 2012, jurisdiction of the magistrates was limited to Kshs 3,000,000/- being the highest but now the highest is Kshs 7,000,000/- for the Chief Magistrate. Limited pecuniary jurisdiction restricted matters that could be heard in the lower court but now things have changed and the lower court can hear matters that they could not hear before.

In the high court, the Chief Justice Evans Gicheru at one time through the Kenya Gazette made some practice directions that matters concerning constitution and judicial review should be filed in Nairobi. This was seen as protecting the government’s interests and seemed to interfere with the independence of judges. It interfered with access to justice and advocates made noise until he withdrew the same. Before the withdraw of the same the high court Kisumu in the case of John Moses Opiyo v Attorney General Misc. application no. 175 of 2006 (UR) had held that:

It need not to be mentioned that the constitution of Kenya is the supreme law and takes precedence over all other laws. Rule 5A of order 46 of the Civil Procedure Rules cannot reign supreme over the Constitution. In any event, it is archaic and does not conform to the modern development. It is irrelevant in today's Kenya and goes contrary to the judiciary policy of accessing justice to the people expanding the administration of justice to the furthest remotest part of the Republic”

Whereas jurisdiction is good because it gives power to court to adjudicate, it restricts the power of court more so territorial jurisdiction.

10.6.9             Problem of Utilisation of Information Communication Technology According to Gladys Shollei, there is a disconnection between judicial reform mission and ICT investment. Judiciary has been left back in form of technological developments and such access to justice has been affected. The magistrates and the judges’ record proceedings manually and the registries handle files manually. Files get lost or misfiled.

Currently there is massive investment in information technology. There is teleconferencing and the records are being digitized. In the judiciary transformation framework ICT infrastructure occupies the fourth pillar that will transform the judiciary

10.6.10         Weak and Unreformed Stake Holders

There are several players that are involved in the administration of justice. These include the office of Director of Public Prosecution, The Attorney General, The Policy, the children officers, the prisons and the probation officers. The police as the investigating department sometimes do poor investigation and gives weak evidence. The prosecution department does not have enough and qualified prosecutors. In the criminal law the standard of evidence required is very high and therefore many accused persons are acquitted to lack of evidence and poor investigations. Recently, Doricas Oduor who led a committee to study the files of sexual offences committed during post-election violence observed that most of the cases could not meet the threshold of prosecution as there was no strong evidence.

10.6.11         Lack of Independence and impunity

In the case of Independent Jamaica Council for Human Rights v Marshall Burnett (2005) UKPC 3, the independence of judges was said by the Privy Council to be all but universally recognized feature of rule of law. Indeed in a democratic society, independency of judiciary is paramount.

Judiciary as an organ of the government has operated at the mercy of the government. The judges were appointed by the by the executive and dismissed at will in the event they operated independently. This affected the delivery of justice especially in judicial review matters. The judges had to rule in favour of the executive. In the Nyayo era cases could be decided at night and mostly the judiciary only implemented the executives’ wishes. In Busia

the Magistrate who refused to follow Moody Awori’s order and release the accused but refused was arbitrary transferred.

Things seem to be changing due to the new constitution. Lack of independence in deciding cases has led to many judges to go home during the vetting of judicial officers and the vetting process is ongoing and many are set to be declared unfit to be judicial officers

10.6.12         Delay in Dispute Resolution

Justice delayed is justice denied. Delay of delivering judgments and rulings is very rampant in the judiciary. There are cases that have stayed as long as thirty years especially land matters. As a result many families have suffered. During the vetting of justice Ibrahim and Nambuye, the two officers were said to be very competent but delay in delivering decisions made the vetting board sent them home. In assessing delay caused by justice Ibrahim, the vetting board observed that “the delays were unacceptable, carried like a hump on a camel’s back from one posting to the next. Literally, hundreds of litigants from every walk of life felt robbed of their right to have their cases finally determined”. Indeed there are cases where matters are adjourned and generally stood over with no apparent reasons.

To remedy the above the judicial officers are to sign contract and above all the constitution is very clear on the need to speed up justice process. There is a massive recruitment of judicial officers and the judicial officers are supposed to make decisions within a particular time frame. The “Wanjiku” have been empowered to communicate with the Chief Justice and the office of ombudsman in the event of delay in delivering judgments.

Lastly but of more important, Kenyans like litigating, matters that could be handled through alternative dispute resolution mechanisms find themselves in court and this in itself hampers access to justice as courts time, efforts and resources are wasted.