LEGAL RESEARCH METHODS AND WRITING

IMPORTANCE OF COMMUNICATION

As a lawyer you must communicate well, which means you must use words well. With regard to clients use words such a way as to be sure your clients understand. With regard to the courts the judge must not only understand the point it must be expressed in the most convincing way. And with regards to witnesses the question must be framed in exactly the right manner. And this involves skill in choice of words - the order in which they are put and in the structure of sentences paragraphs and speeches.

STANDARDS

The standards of clarity, accuracy, grammar, punctuation and stylistic elegance that you need to achieve in your profession career are much higher than the standards you have regarded as satisfactory and have served you up to now. You have to work to improve your work skill to the high standards and once you get there work some more to sharpen them more.

QUALITIES OF GOOD WRITING

The written word is one of the most important tools of the legal profession. Words are used to advocate, inform, persuade and instruct. Although mastering legal writing skills takes time and practice, superior writing skills are essential to success.

Good writing involves drawing upon the English language using it well. You must understand the language and the way it works as well as its vocabulary so that the language works for you rather than hinders or obstructs you. Try to write in plain English where possible. Avoid inappropriate jargon, archaic language, un-necessary verbose and antiquated language, old fashioned legalities gives lawyers a bad name and creates a barrier between you and your clients. Plain English involves use of the simplest clearest language possible. In circumstances not other simplest, clearest language available, you must not sacrifice decisions for simplicity or clarity for the sake of shorter words therefore there are time to use technical words rather than lay terms and uncommon words carrying the precise meaning rather than common place ones which do not.

Organize Your Writing

Organization is the key to successful legal writing. Create a roadmap for your writing by using visual clues to guide the reader. Introduce your subject in an introductory paragraph, use transitional phrases (moreover, further, however, in addition, etc.) between each paragraph, introduce each paragraph with a topic sentence and use headings and subheadings to break up blocks of text. Limit each paragraph to one topic and sum up your message with a concluding sentence or paragraph. Organizational structure guides the reader through your text and promotes readability.

Choices

Everything that appears in the final version of what you are writing should be there because you intend it to be. Nothing should creep in by accident or thoughtlessness. Nothing should be left out by oversight. What you end up with should be exactly what you want. Every word used should be there because you have chosen to use that word as opposed to another. You can only write well by making choices. In writing as opposed to speech you have an opportunity to go back to what you have written and improve it. Dont waste the opportunity

Clarity

Good writing has total clarity. This is to enable readers and hearers to get the meaning intended. The meaning springs instantly from the words. If a sentence is not expressing the idea behind it clearly, stop and restart. Clarity of expression can never be achieved without clarity of thought behind it. If you are not clear in your mind about what you think or want to say you have no hope of being any clearer in writing.

Grammar




Writing should be free from grammatical errors. These are the rules that dictate word forms, word order and sentence structure. If a verb is in the wrong tense or a sentence improperly composed, then the meaning is obscured. The best grammar is the grammar that makes meaning clearest.




Punctuation

Good writing must be properly punctuated. The positioning of a certain punctuation mark at a certain point in the sentence may import a totally different meaning thereto. This can be crucial to the meaning of a legal document. The choice of punctuation marks is just as much a part of drafting as the choice of words.

Ditch the Legalese

Legalese - specialized legal phrases and jargon - can make your writing abstract, stilted and archaic. Examples of legalese include words such as aforementioned, herewith, heretofore and wherein. Ditch unnecessary legalese and other jargon in favor of the clear and simple words. To avoid legalese and promote clarity, try reading your sentence to a colleague or substituting abstract words with simple, concrete terms. For example, instead of I am in receipt of your correspondence, I received your letter is clearer and more succinct.

This is an essential part of clarity. You need to write with greater precision than you would need probably use in everyday life. It is generally true of opinions and advice and essential in drafting. In pleadings there can be no room for anything less than absolute precision. You have to set yourself standards of accuracy beyond these you would regard as sufficient for everyday communication.

Non-Ambiguity (having more than one meaning)

In legal writing you must be aware of all different view points from which your words might be seen and ensure that what you write is generaly un-ambiguous. You should proceed from the assumption that if what you write could reasonably bear another meaning from what you intended then someone elsewhere will probably try to read it in that way.

Be Concise Conciseness (giving a lot of information in few words) (brevity)

Every word you write should contribute to your message. Omit extraneous words, shorten complex sentences, eliminate redundancies and keep it simple. Consider the following sentence:

Due to the fact that the defendant has not attempted to pay back the money owed to our client in the amount of Kshs. 2000 it has become absolutely essential that we take appropriate legal action in order to obtain payment of the aforesaid amount.

A more concise version reads: Since the defendant has not paid the Kshs. 2000 owed our client, we will file a suit seeking reimbursement. The latter sentence conveys the same information in 18 words versus 45. Omitting unnecessary words helps clarify the meaning of the sentence and adds impact.

Good writing is concise meaning that it should be succinct and to the point. Avoid repetition, waffle, long windedness or digression. A good piece of writing should never be a word longer than it needs to be but at the same time as well as being concise the work must always be complete.

Completeness

You must express your ideas completely. If what you write has only been partially expressed then what you are trying to say does not express your full reasoning step by step then it is incomplete and more than likely it is in-precise ambiguous and unclear.

Elegance

Though hard to define, this is something that we recognize and appreciate when reading a good piece of writing. You have to decide what field looks elegant for yourself. Generally avoid clumsy phrases and tortuous constructions which will lead to the flow and rhythm essential for the achievement of elegance in writing to be lost.

Use Action Words

Action words make your legal prose more powerful, dynamic and vivid. Add punch to your writing with verbs that bring your prose to life. Here are a few examples:

Weak: The defendant was not truthful. Better: The defendant lied.

Weak: The witness quickly came into the courtroom. Better: The witness bolted into the courtroom.

Weak: The judge was very angry. Better: The judge was enraged.

Avoid Passive Voice

Passive voice disguises responsibility for an act by eliminating the subject of the verb. Active voice, on the other hand, tells the reader who is doing the acting and clarifies your message. For example, instead of the filing deadline was missed, say plaintiffs counsel missed the filing deadline. Instead of a crime was committed, say the accused committed the crime.

Edit Ruthlessly

Edit your writing ruthlessly, omitting unnecessary words and rewriting for clarity. Careful proofreading is particularly important in legal writing. Spelling, punctuation or grammatical errors in a document submitted to the court, opposing counsel or a client can undermine your credibility as a legal professional.

If what you have written comes back to you in a printed form make sure you read over it and check for errors. If you care as you should about the quality of your writing you will care enough to correct typical graphical errors and thus improve in any small way you can on what you have written

Remember your Audience

Always be aware of the intended reader as you write give him the right picture of yourself/ mind.

Every word you write should be tailored to the needs of the reader. Documents that embody the same research and message may vary greatly in content and tone based on the documents intended audience. For example, a brief submitted to the court must advocate and persuade. A memorandum to a client must analyze the issues, report the state of the law and recommend an appropriate course of action. Always keep your audience in mind when crafting any piece of writing.

METHODS OF STUDY

As a law student one of the question on your mind will be how is my time better spent. Reading cases in law report in the library or going over a text book in your room. Ones obvious answer will be to do both but then you ask in what proportion and what is their relative importance? In answering this question you must bear in mind that in studying law you have 2 aims FIRSTLY to make yourself a lawyer and secondly to pass your law exams with credit. For both purposes one must study cases either in the original law reports or in case books.

It is through applying oneself to cases that you get to understand how legal problems present themselves and how legal argument is conducted. However, there is one important difference between preparation for practice and preparation for exams. A practicing lawyer needs to have a large field of what can be learned potential knowledge more than what can be learned potential knowledge more than having a small amount of actual knowledge more than having a small amount of actual knowledge he need a sound grasp of general legal principles practice & procedure and a knowledge of where to find the law he wants. It is not essential though it helps to carry much law in mind. To shine in exams on the other hand you must not only know how to argue and be able to display your first hand knowledge of the sources you must also be able to re-sight a considerable number of rules and authorities. On the subject of learning by memory remember that its best to work in short periods distributed over as longer time as possible for example one hour a day rather than six hours for one day every week.

STUDY SKILLS

A successful student doesnt have to be a genius however to be successful you need to make the most of your ability which means you have to study effectively. This will not only enable you to improve your academic performance but also to make studying a more enjoyable and satisfying experience. Students who spend all their time on their work do not always receive high marks. One technique you must master is to manage your time. This is a skill which one mastered can be applied to numerous other situations e.g. one of the thing is prioritizing work. Some things are more important than others e.g. attending lectures and handing in assignments on time. In making a timetable some principles you should bear in mind are (first) dont try to study for long periods of time without a break (Second) be realistic when planning your time. (Third) recognize your strength and weakness, (fourth) learn to have some time off each week.

LECTURES

In an environment where books are plentiful the need for lectures would be limited and the use of tutorials would be more fruitful. However where books scarce lectures are essential not just al not just so you know what topics are being covered but also because the lecture might be the main source material on the subject.

TUTORIAL & SEMINORS

This generally involves small groups of students meeting regularly with tutors to discuss questions which have been set in advance by the tutor. All students are generally expected to have prepared for the topic and the discussion in advance and all will be expected to participate by joining in the discussion.

BOOKS

One issue worth noting when it comes to learning through text books is that the more often a book is read the easier and quicker it is to read & the more it repays reading i.e. on second and subsequent readings the book is both easier to read and more is remembered. If a book or article has many foot notes it is a good idea to read it through the first time without looking at the footnotes.

If you own a textbook it is of simple use to transfer large quotation from it into your notes when the book is available for reading. It is better to read the book twice than to spend the time copying it out.

CASES

Although there is nothing that compares with reading the entire text of a judgment, reading a summarized form of it helps to some extent, this is often not possible due to pressures of time where a case book is available therefore it is a permissible economy of time to buy or read a good case book for each subject being studied. The use of a cases book has two main advantages:-

Saves time of making ones own notebook of cases.

It does something to eliminate immaterial facts by quoting the main legally material facts.

MECHANISM OF SCHOLARSHIP

In order to become a lawyer and not just to pass ones exams one must learn to use legal materials. You must get to know your way about the law library and acquire the habit of first hand work arrange the sources of the greatest advantage of using text book alone is that it means taking all ones law second hand.

The law is contained in statutes and judicial decisions. What the text book writes thinks is not in itself law. It is also necessary to get to know ones way about the library as a whole together with the catalogues and books of reference not just the law reports and statute books.







LAW REPORTS

English Law Reports: -

A system of binding precedent is dependent on the publication of reported cases. Law reporting dates back to the thirteenth century. The earliest case summaries were collected in manuscript form which became known as year books. These seem to have been prepared by students or practitioners and circulated among the judges and leading barristers. With the intervention of printing, the production of law reports for sale to the legal profession, between the 16th and 19th century became common practice. They were published under the reporters names.

These reports varied widely in their accuracy and reliability, but their law reports remain, available, and have now been republished in a series called The English Reports covering 1220-1865. Since 1865, law reporting has been placed on a different basis, although it remains a matter for private enterprise. In 1870 the incorporated council of Law reporting was established. It consists of representatives of the Law society and the Inna of Court and Publishes what have come to be treated as the official Law Reports.

Law reports are reports of the important cases decided by the higher courts. Not all will be reported just those of legal interest. English law reports may be divided into two rough periods:-

1509 When King Henry VIII began his reign to 1865 and 1865 to the present.

Prior to 1865 reports were produced briefly by private reports under their own news. They were known as Nominate Reports. There were hundreds of series but most run for just a short time. Most of these old reports have been reprinted in a series known as The English Reports (E.R.).

These reports were of uneven quality at least before 1757 and need handing with some care.

In 1865 the law reports which are semi-official reports were started by the incorporated council of law reporting. There are four current series of reports:

Appeal cases (AC) - this series covers decisions in the House of Lords and the judicial committee of the Privy Council.

Queens Bench Division (QB) - this series includes cases on appeal to the Court of Appeal, as well as decisions of the Court of Criminal Appeal.

Chancery Division (Ch) - this series includes decisions of the divisional court and, on appeal, decisions of the court of Appeal.

Family division (Fam) - this were basic divisional reports and appeal decisions in the Court of Appeal in matters of Probate, Divorce and Admiralty Division until 1972.

These series contain judgment at first instance as well as judgments on appeal to the court of appeal.

Two different sorts of brackets are used in quotations where the date is an indispensable part of reference to the case square brackets are used (1970) and round bracket where its not. If the report has a volume number, the date is not necessary to trace the case. The reason for this is customary and proper use of the brackets will show your knowledge. Change in the mode of citation was made in 1890 when instead of quoting the volume by number the practice was started e.g. by the year. The Incorporated Council of Law reporting also publishes a weekly series known as the weekly law reports (W.L.R). These are bound in 3 volumes with the first volume containing cases that are not afterwards included in the law reports. In addition to these semi-official reports there are various privately owned series. The most well known is the all England law reports (All E.R) published by Butterworths. They basically contain reports from the same courts as the reports. An advantage of having the collateral reports in the library is that if the reader wants to find a case in one report and finds it being used by someone else it is often more convenient to look for it in the other series rather than wait.

For citation in court the law reports are preferred because the judgment they print have been revised by judges. They also have the advantage of having counsels argument summarized. For criminal law practitioners there are also coxes criminal cases (Cox) and the criminal appeal reports (C.A.R.)

If you look at any volume of the law reports & law reports in general the former will general be as follows:-

At the head caught word. Indicating briefly what the case is about, they enable the reader to make sure that the case is relevant to the point they are concerned with.

Head note which is not a true part of the report but is a summary written by the reporter although they are occasionally inaccurate they are useful guide to the judgments. Generally the head note states the short facts of the case and allows one to skip the facts in details by the judge and go straight to the part of the judgment dealing with the law. Where there is a dissent it is instructive to read both the judgments in order to appreciate that more were two sides to the question.




The All England Law Reports and the Weekly Law Reports are available sooner and are published commercially by firms of law publishers. They are on hard copy or CD-Rom. All decisions of the Crown Court, High Court and above, whether or not reported elsewhere, are stored on Lexis, the best known law database.

KENYA

MEANING AND PURPOSE OF LAW REPORTING

Kenya is a member of the Commonwealth and its legal system bears strong historical and contemporary similarities with the English Common Law. One of the hallmarks of the English Common Law is the doctrine of precedent, which is expressed in the latin maxim: Stare decisis et non quieta movere, meaning maintain what has been decided; not alter that which has been established. This maxim and the doctrine of precedent captures the legal principle under which judges are obliged to follow the precedents established in prior decisions. A precedent is a judgment or decision of a court, normally recorded in a law report, which is used as an authority for reaching the same decision in a subsequent case that has similar issues for determination. The application of the doctrine of precedent generally means that cases involving similar circumstances should be decided by the application of similar principles of law, and that the decision of a high ranking court should act as a binding precedent on a court lower in the hierarchy. Under the new constitution the Supreme Court is the highest court in Kenya. Therefore, its decisions are binding upon the Court of Appeal and the High Court, which is the second and third court in the hierarchy respectively, and also on the subordinate/magistrates courts, which include the Kadhis courts.

In order to eliminate the absurdities which may result from a rigid application of the doctrine, the Common Law evolved certain mechanisms for, firstly, purging from the body of established precedent those decisions which are no longer regarded as good law and secondly, for avoiding the unmitigated application of a precedent which does not apply to the circumstances of the case at hand. Therefore, having regard to their hierarchy, courts have the liberty to overrule or distinguish previous case law respectively.

The doctrine of precedent presupposes the continuous monitoring, preservation and publication of judicial opinions law reporting. Law reporting is an established tradition in the Commonwealth and it is an essential feature of many legal systems.

Three other benefits of law reporting have been identified.

First, it offers opportunities for the development of the law and the evolution of jurisprudence which cannot be provided by parliament. The courts can more quickly lay down new principles, or extend old principles, to meet novel circumstances.

Secondly, it ensures certainty in the law. People are able to order their affairs and come to settlements with a certain amount of confidence when the outcome of litigation can be predicted by referring to previous decisions of the courts.

Finally, it is a tool of impartiality and transparency for judicial officers. Generally a judge is bound to follow the law enunciated in a previous case unless he or she can overrule or distinguish it and moreover, the decision is published and disclosed to the society as a public record.

The National Council for Law Reporting is by law the official publisher of the law reports of the Republic of Kenya, i.e. the Kenya Law Reports.

History of Law Reporting in Kenya

1897-1905: Kenyas first output of law reports was in the form of volumes under the citation E.A.L.R (East African Law Reports). Seven of these volumes were compiled by the Hon Mr Justice R. W. Hamilton, who was then the Chief Justice of the Protectorate and the reports covered all courts of different jurisdictions.

1922-1956: Some twenty-one volumes of the Kenya Law Reports (under the citation K.L.R) were published which included the decisions of the High Court only and were collated, compiled and edited by different puisne judges and magistrates.

1934 1956: This period saw the birth of the famous Court of Appeal for Eastern Africa Law Reports (E.A.L.R), which comprised twenty-three volumes and were also compiled by puisne judges and magistrates, a Registrar of the High Court and a Registrar of the Court of Appeal for Eastern Africa. These volumes reported the decisions of the then Court of Appeal for Eastern Africa and of the Privy Council. They covered only those appeals filed from the territories.

1957 75: The East Africa Law Reports (cited as E.A.) were published in nineteen consecutive volumes and covered the decisions of the Court of Appeal for East Africa and the superior courts of the constituent territories, namely Kenya, Uganda, Tanzania, Aden, Seychelles and Somali land. They were published under an editorial board consisting of the Chief Justices of the Territories and the presiding judge of the Court of Appeal for Eastern Africa.

Following the collapse of the East African Community, under whose auspices the reports were published, the reports went out of publication.

The period before the resumption of the East Africa Law Reports saw sporadic and transitory attempts at law reporting. Firstly, with the authority of the then Attorney-General, six volumes named the New Kenya Law Reports covering the period between and including the years 1976 to 1980 were published by the East African Publishing House Ltd. These reports included the decisions of the High Court and Court of Appeal of Kenya and were compiled by the Late Hon Mr Justice S. K. Sachdeva and were edited by Mr Paul H Niekirk and the Hon Mr Justice Richard Kuloba, a judge of the High Court of Kenya. The publication of these reports ceased when the publishing house folded them up ostensibly on account of lack of funds.

1982-1992: Two volumes of what were known as the Kenya Appeal Reports were published by Butterworths a private entity, under the editorship of The Hon Chief Justice A.R.W. Hancox (hence the pseudonym Hancox Reports) who had the assistance of an editorial board of seven persons. These reports, as their name suggested, included only the decisions of the Court of Appeal of Kenya selected over that period.

Law reports relating to special topics have also been published. Ten volumes of the Court of Review Law Reports covering the period 1953 to 1962 and including the decisions on customary law by the African Court of Review were published by the Government Printer. There was no editorial board and it is not known who the compilers of these reports were. Their apocryphal origin notwithstanding, they were commonly cited by legal practitioners and scholars.

1994 The National Council of Law Reporting Act was enacted and it set up a national council for law reporting and its primary function was set out in section 21 was to produce official law reports of the republic of Kenya to be known as Kenyan Law reports.

1996 the council was inaugurated by Chief Justice (CJ) Majid Cockar

2001 the council started to function under Chief Justice Bernard Chunga

2002 produced its first reports known as 1981 Kenyan Law Report upto end of 2002

It has subsequently produced law reports till 1991 as well as separate volumes of 2002, 2003, 2004 and 2005.

The Need for Law Reports

The Kenyan legal system borrows heavily from English Law. One of the fundamental doctrines of this Common Law is the doctrine of precedent, which is captured in the Latin maxim: stare decisis et non quieta movere, meaning: it is best to adhere to decisions and not to disturb questions put at rest.

A precedent is a judgment or decision of a court, normally recorded in a law report, used as an authority for reaching the same decision in a subsequent case.

Loosely translated, the doctrine of precedent means that cases involving similar circumstances should be decided by the application of similar principles of law. . The application of this doctrine means, generally, that every court is bound to follow the decisions made by the court above it and, on the whole, appellate courts also have to follow their own decisions.

The Court of Appeal is the highest court in the land and its decisions are binding on the High Court and on the Magistrates Courts. The Court of Appeal will normally also follow its own decisions unless it can overrule them so that they are set aside and cease to have the force of precedent. The decisions of the High Court are binding on the Magistrates Courts but the decisions of the Magistrates Courts do not in themselves create any binding precedent for any court.

Moreover, a lower court can decline to follow the decision of a court above it where the lower court finds that the circumstances of the case before it are peculiar and different to those in the previous case. This is called distinguishing a case.

The processes of distinguishing and overruling previous cases act as checks on rigidity in the law and prevent bad decisions from acquiring the force of law.

This doctrine of precedent greatly aids in the administration of justice in the following ways:

- It ensures certainty in the law. People are able to order their affairs and come to settlements with a certain amount of confidence when the outcome of litigation can be predicted by referring to previous decisions of the courts.

- It ensures the impartiality and transparency of judges. Generally, a judge is bound to follow the law enunciated in a previous case unless he or she can overrule or distinguish it.

- It offers opportunities for the development of the law and the evolution of jurisprudence which cannot be provided by Parliament. The courts can more quickly lay down new principles, or extend old principles, to meet novel circumstances.

STATUTES/ LEGISLATION

A statute is an Act of Parliament.

The most obvious source of codified law is an act of Parliament.

In many areas of law now, the Act of Parliament is Paramount.

The most obvious source of law is an Act of Parliament.

Its a law expressly enacted by the legislative as distinguished from customary law

Theoretically it is possible to have the whole of the law being set out clearly and logically in statutory form.

Decided cases will then be used as aids in interpreting the statutes and important decisions could be incorporated into the statutes by amendments. In practical terms however human laziness and indifference combined to keep this from happening.

Often statutes are not arranged in a rational manner with the same subject being divided into many statutes or one-statute containing books of several subjects.

Statutes are also amended from time to time so that the law often has to be gathered from reading two or more statutes together.

Process of setting out both the statute law and the common law on a subject in a single well ordered statute is called codification




FORMAT OF STATUTES

They consist of several parts.

The year of enactment

The commencement date

The short title of the Act

When youre writing about a statute its normal to refer to it using its short title and year of publication where it has not been assigned a chapter number or chapter number if it has one

The long Title of the Act

This gives some indication of the purpose behind the Act, it may be of some use in deciding what the Act is all about.

The Main Body

This is divided into sections and the section may be sub-divided into sub-sections. When there are subsections they comprise the whole of the section i.e. there is no opening part of the section before the sub-sections.

A sub-division following an opening part is known as a paragraph. Subjects have a number in brackets. While paragraphs have italicized letters in brackets.

Sometimes parliament cannot decide exactly what the law should be on a particular point. This may be because it doesnt have the necessary expertise in the matter or the area is one requiring frequent changes to be made. In this instances parliament may pass an Act giving somebody else the power to make law in the appropriate way.

Such power is often given to government ministers or to local authorities.

This is what is meant by delegated or secondary legislation. A person or body to who legislative power is delegated cant make law about anything, the parent Act will determine the area in which law can be made. It may say something about the content of the law but it leaves the details to the person of body to whom the legislative power has been delegated.

Most delegated legislation is published as a statutory instrument or a legislative supplement.

By each section of the Act you will find a short explanation of the content of that section, these marginal notes may help you understand the content of the section if it is otherwise unclear. In larger statutes sections may be grouped together into different parts each part will deal with a separate area in a law. Looking for the correct part will help you find the particular legal rule you want. Some statutes have one or more schedules at the end. The content of this varies with some containing detailed provisions which are not found in the main body of the Act while others are merely convenient reminders and summaries of legal rules found elsewhere in the Act.

Where a schedule is divided up the divisions are known as paragraphs.







USE OF STATUTES

Use of statutory material will vary. Sometimes you will be referred to a particular section or sections of a statute in a case, article or a book. In other instances a new statute is passed which you will need to access as a whole to see how it affects those areas of law you are interested in.

When reading a statute you should remember the statutes do not necessarily use word to mean the same thing that they do in-ordinary conversation. Before you can decide what a statute is about, you need to know if there are special meaning enacted to words in it. These special meanings ill often be found in section called Definitions or interpretation sections. You should always assume that a definition is a statute applies only to the use of the word in that statute.

Statutes must be read carefully and slowly. The general rule is that a statute means precisely what it says. Each word is important. Some words used loosely in ordinary conversation take a special significance when found in a statute e.g. it is important to distinguish between words like may and shall. One may say that you can do something the other says you must do something.

Conjunctions such as and joining things together must be distinguished from adjectives such as or which divide things.

TECHNICAL TERMS

To start off the beginner will find himself or herself lost in the technical terms employed by legal practitioners and in the Latin and law French phrases and maxims.

The Latin phrases date from the time when Latin was the language for official documents and sometimes survives in the names of writs e.g. certiorari and mandamus a writ is a written document summarizing one or requiring on to do or to refrain from doing something.

1. Certiorari is a writ removing a cause from an inferior court to a high court.

2. Mandamus is a command or a writ issued by a higher court to lower court compelling an organisation to do something within its powers.

3. Habeas Corpus a writ to a jailer to produce a prisoner in prison and state the reasons for detention. (Produce the body of)

Maxims are usually in Latin because they are derived from Roman law or because they were invented by medieval jurists. In 1730 the parliament in England passed an Act to try and get rid of Latin in legal proceedings but it was found that certain technical terms could not be clothed in English phrase with any degree of seriousness.

Two years later another Act was passed allowing such words to continue to be used. Law of the French on the other hand dates from the time when Anglo- Norman French was the language for the courts. A good law dictionary as well as knowledge of the context in which terms are used will assist in solving any problems regarding the use of phrases in Latin or French Law .

A good English dictionary can also be of assistance.




USE OF LATIN IN LEGAL WRITING

The importance and prevalence of Latin in legal language is not surprising when one consider the former central position of Latin in many areas of English life and throughout Europe in general. However, it is of some interest that Latin continues to hold a place of such prominence as we begin the 21st century.

The question arises what are the reasons for the use of Latin in modern legal language and what are the influences on the language of the law. They are both internal and external influences which affect the language used by people in the legal community.

On the one hand lawyers, judges and teachers of the law discuss subjects that only exist in the legal world. On the other hand law reflects and reacts to the norms of the non legal community.

INTERNAL INFLUENCES

The Need for a Professional Language

A career in law is often called a profession and one distinguishing realistic of a profession is that it often develops its own language as a form of short hand.

One reason for this development is the efficiency that short hand produces. It sets the boundaries for a debate and gives focus for certain non English phrases that have become short hand within the legal community. For example use of the term res ipsa loquitor mean the thing speaks for itself. Its use is logical because a translation of the term would be inefficient.

Another reasoning for having a professional language is a profession self identification.

Legal language creates a sense of being a group because others outside the legal community dont readily understand the arguments of the profession. So a specialized vocabulary will help enforce a group feeling within the profession.

This professional language also creates barrier to prevent non lawyers from easily entering the community as one will have to learn the language to enter the legal world




HISTORY

Since our legal system is based on precedents, a discussion of past events or concepts is central.

The legal community is thus constantly discussing ideas and concepts that began in the past, sometimes in a different language.

Some concepts of common law begun with the Romans or Normans and the language of the law will reflect the influence.

New concepts such as internet law may eventually bring new vocabulary to the law.

The way in which members of the profession see themselves as part of a tradition with one generation passing on to the next may also affect their language. Thus those members of the profession who view the connection between generations of lawyers as important may use language that draws upon the tradition whereas a member who seas to connect a false or as unimportant may use different language.




EDUCATION.

A legal education focuses on language. The study of the meaning of words, arguments and finding arguments persuasive or non persuasive is at the core of legal education.

What the members of the legal community learn and how they study it will affect the language they use. The similarity of the education lawyers receive and of the text they read may produce a similarity in their language.




TEACHING OF LEGAL WRITING

The study of legal writing is receiving an increasingly prominent role in legal education around the world.

Books are being published and in some countries legislation is being paused to discourage the use of legalese in legal writing.

There is a concurrent effort by the plain English movement of simplify the language that lawyers use.

Some writers argue that legal language should be simplified because legal writing should be directed towards non lawyers rather than towards others in the legal community.

This is especially true of judgments.

Others say that lawyers use language that is incomprehensible to non-lawyers because of the need to be precise.

Lawyers therefore use archaic words because they have settled meaning. A lawyer position in the debate over the need for simplicity in legal language may affect the language that the lawyer uses.

EXTERNAL INFLUENCES

The symbolism of law be as important for the non legal community as for the legal community.

Legal language has a ritual element to it. The grand phrases may inspire all and in the listener or reader.

External pressure from society to keep its symbolic effect may influence the language of the legal community.

External pressure to read legal language of the archaic words and phrases and make it more accessible also affects legal language.

LEGAL ABBREVIATIONS

The use of legal abbreviations is often a source of problems to a beginner. Here again the possession of law dictionary is of great help.

Some of the more common abbreviations with regards to the titles of judge are J, JA. JJ, JJA. CJ

For instance Mr. Justice Ringera Ringera .J

Lady Justice Angawa Angawa .J

2 or more judges JJ at the end of the lady/lord

L.C lord chancellor who is the head of a judicial systems

MR. Master of the Rolls- Head of court of appeal civil division.

C.J or LCJ Chief justice or Lord Chief Justice head of Queens bench division and criminal division.

P-President head of a family division of the high court

VP Vice Chancellor- Head of the chancery division of the high court or civil law division.

COMMON ABBREVIATION REFERRING TO AUTHORITIES

Certain abbreviations, in shorthand, expression supply a convenient mechanism for referring to authorities. e.g..

Ibid-ibiden-means in the same place and is used to repeat a reference previously given.

Op cit Opere citere means book previously cited.

Lol cit Loco citato page previously cited in the book previously cited

Per statement by/ e.g. per Ringera.

Per curium statement correctly made by the whole court.

Per in curium A judges remark made by mistake also refers to a decision wrongly made by a court which doesnt set a precedent (in ignorance of high court decision)

GENERAL PRINCIPLES OF CITATION

The basic purpose of a legal citation is to allow the reader to locate a cited source accurately and efficiently.

The citation forms given in the Blue book and similar guides seek to provide the minimum amount of information necessary to lead the reader directly to the specific items cited, because of the ever increasing range of authorities cited in legal writing neither the blue book nor any other system of citation can be complete.

When citing a material of a type not explicitly discussed try to locate an analogous sort of authority that is discussed and use the citation form as a model. Always be sure to provide sufficient information to allow a reader find the authority quickly reliably.

In all types of legal writing whether by scholars or practitioners use customary to cite an authority or authorities to show support for a legal or factual preparation or argument.

An author may cite several different types of authorities.

Authority that identifies the source of a quotation or an authority referred to in the text.

Authority that directly states are clearly supports his or her legal or factual proposition.

Authority that less directly support the authors proposition but form which one can infer the proposition. Authority that contradicts the authors proposition.

Authority that provides background materials that the reader might find useful in considering the proposition.

Each category of the authority is introduced by what is known as a signal. This is an italicized or underlined word or words such as, see, for example, compare etc.

In the case of authority that identifies the source of a quotation no signal is needed.

In law review articles citations to supporting authority appear in foot notes appended directly after the proposition in the text they support.

In court documents and legal memorandum citations generally appear within text of the document.

Certain kinds of authorities are considered more useful or authoritative than other kinds.

If more that one authority is cited in support of a proposition this supporting authorities are usually listed so that the more authoritative ones appear first.

FOOT NOTES

Authorities that support or contradict a proposition made in text are placed in foot notes.

The foot note call number should appear in the text or the end of a sentence if the entire sentence is supported by the source.

The call number should appear within the sentence next to the proposition it supports if only that part of the sentence is supported or contradicted by the source.

Authorities within each signal are separated by semi colons

CASES

Every case can be referred to by way of names of the parties concerned, however referring to a case in this way is of limited usefulness but it doesnt tell the reader the date of the case nor does it indicate the series of report in which its found.

It doesnt even tell us to which case involving for instance a Kamau and Mwangi the reader is being referred. Thus in addition to its name each reported case possesses a unique reference indicator. This reference is usually referred to as the citation for the case. Knowing this citation a researcher is able to go directly to the shelves of the law library housing the volumes containing the reference and turn directly to the report of the case.

A full case citation includes the name of the case, the published sources in which it may be found and the year or date of the decisions.

It may also include a parenthetical that indicates the court and jurisdiction, the subsequent history of the case if any or the prior history of the case.

When case names are used as part of a textual sentence whether in the main text or foot notes, use the case name that appears at the beginning of the opinion in the cited reporter to facilitate index notation, always retain in full the first word in each partys name.

However, the first word may be abbreviated if the full name of a party can be abbreviated and widely recognized initials.

Generally given name or initials of individual should be omitted when the case name differs in prior or subsequent history the new name must be given.

Dont give a new name however when the partys names are merely reversed.

BOOK CITATION

Book pamphlets and other non periodic materials should be cited by the author, editor or translator, the title, the volume if more than one, the page, section or paragraph, the edition if more than one has appeared and the year.

The 1st time a work is cited always give authors full names as it appears on the publication including any designation such as Junior (Jr).

Two authors should appear in the order in which they are listed on the publication.

If a work has more than two authors always give the full names of the first author followed by et al ( and others)

Regardless of whether a work has an author, always give the full names of an editor or translator followed by ed or trans.

If the work has more than two editors or translators used, the 1st name followed by et al.

Cite the full main title as it appears on the title page

Give a sub-title only if it is particularly relevant to cite an individuals shorter work within a volume of collected works by various authors list the authors full name followed by the title of the shorter work. The word in the volume number if any and the name of the volume as a whole.

Always note the page on which the shorter work begins as well as any pages on which specific materials appears.




PERIODICAL MATERIALS

Cite works are found in periodical by the author, the title of the work the year, the volume number, the periodical names and the first page of work and page(s) on which specific material appears.

INTERNATIONAL MATERIAL

For treaties you should include the agreements name; the exact date of signing; the parties to the agreements and the sources. However if there are more than 2 parties the names need not be given.

For international law cases such as the international law of justice you give the case name, the names of the parties if any, the volume and the name of the publications which the decision is found, the page on which the case begins and the date.

FINDING THE LAW

CASES

The traditional and the most comprehensive form of research in relation the law reports is performed in law libraries containing a wide selection of material and a variety of support system; index; catalogue are designed to assist the researcher in the task of locating and using particular items. If you know only the names of parties in the case you will need first to ascertain the specific reference.

The most efficient way of doing so is by using a general reference manual known as a case citator.

One of the most popular case citator is known as current law. Entries in the current law citator are listed alphabetically by the title of the case.

Where one has limited resources it will not be possible to find reports of all cases you may need.

Similarly access to sufficiently comprehensively reference manual will be restricted.

Whatever your source of available material its of paramount importance that you familiarize yourself with the specific indexing and cross referencing system adopted by the source at your disposal.

This will enable you to use the limited resources in the most efficient manner.

Case books Case books are collections of extracts from cases. They now exist in many areas of law. Generally they will have space for only the cases of central importance. Many of these you should in any event make the effort to read in full. They can also be of importance but they have a few short comings which should be born in mind.

1. The reader relies on the editor of the volume to select the most appropriate material. There is no way in which the quality of the work can be checked.

2. The material presented may only be given in part thus the reader must trust that the editor hasnt given misleading extracts.

3. The reader has no means of updating the material.

ENCYCLOPEDIA

These are not in the strictest sense sources of the law though they may contain sources of law.

Different examples of encyclopedia vary in form and content you should bear in mind that

With regard the kind of material the encyclopedia contains and it may be comprehensive and contain all statutes reference to relevant cases with some description of the contents together with some decision of the application of legal rules in the areas. Other encyclopedias may contain only some of the material or may extract some of it.

Even if the encyclopedia claims to be fully comprehensive this is no more than a claim its always as important to be aware of what you do not know as what you do know. Relying on an encyclopedia means there may be gaps in your knowledge of the particular area of law.

Most encyclopedias extract at least some of the material they cover i.e. they contain extracts of a statute case etc rather than the whole law.

In extracting the material the editors limits your knowledge of the law as a source of law, the less comprehensive an encyclopedia is the less useful itll be but the more comprehensive it is the slower it may be to use.

The most convenient encyclopedia is Halsburys Law of England.

DETERMINING THE LAW

When presented with the facts of a case it is necessarily to determine the law that applies to them. This question can be answered by looking at several aspects of the issue i.e. the source of law, the language in which they are expressed, and the nature of the reasoning process, by which they are applied to the facts.




SOURCES OF LAW

The two main sources of law are statutes and cases/ judicial decisions

Judgments in cases are sources of law because what a court declares to be the law in one case has authority in the sense that it must be taken into account by other judges and consequently by advocates when they are determining what law should apply to similar fact situations.

If for example you want to know whether a professional e.g. a doctor owes a duty of care to someone who has suffered a loss as a result of his actions you will be able to find a probable answer by consulting previous decisions where a court has declared to be the extent of a professional duty.

Statutes are today the dominant source of law for several reasons.

The social- economic problems of the past 100 years have demanded more sophisticated legal techniques than can be provided by case law alone. The speed of change in society has also outstripped the capacity of case law alone to create new rules.

Legislation has the added advantage of attracting widespread publicity hence being capable of influencing behavior immediately. Though the legislature passes statutes the task of applying the provisions is ultimately one for the courts. In exercising this function judges are called upon to interpret the exact meaning of the statute, to appreciate the role of statute as a source of law. It is thus necessary to understand the approaches to interpretations which courts adopt. It should be understood that sources do not provide a neatly ordered framework under which one particular fact situation is covered by one particular source of law. Sources frequently overlap and in some cases conflict, where the sources conflict courts are given guidance on which source will take precedents by the provision of the Judicature Act Cap 8 of the laws of Kenya.

Sec. 3 (1) thereof contains the mode of exercise of jurisdiction of the High Court, Court of Appeal and all Subordinate Courts.

The main obstacle to the straight forward application to facts of the sources of law can be said to be the language in which the sources are expressed.

LEGAL LANGUAGE

Laws can be expressed in highly specific language. However, expressing all laws in great detail would make the resulting law unwieldy and lacking in coherence due to its sphere volume, in any case it is often impossible to anticipate all possible eventualities and draft laws specifically to meet them.

Statutory provisions are thus pegged at a higher level of generality.

Those applying the statute are left to determine how the general phrases applies to particular facts

The same is also true when it comes to case law, it is possible to regard the proposition of law for which a case is authority in narrow specific terms. For example, Donoghue vs Stevenson 1932 AC 562 could be regarded as establishing that a manufacturer of ginger beer owes a duty not to allow snails to get into the products, that being the specific fact situation before the court. However, such a specific way of expressing authority would not be helpful and will hinder the development of broader cases law decisions. Consequently the authority has been viewed at a higher level as establishing that a manufacturer of consumer goods owes a duty of care to the ultimate consumer.

Generally or the potential for generality is thus an important characteristic of much legal language. It means that there is necessarily an element of practical judgment as to whether the law should apply to particular facts. The way in language an abstract concepts of law are applied to facts involves a process of reasoning.

LEGAL REASONING

Lawyers are often thought of as having logical minds; when referring to logic we are often thinking .of the deductive form of argument known as syllogism

Syllogism It consists of three parts:

Major premise all men are mortal

Minor premise societies is a man

Conclusion societies is mortal

A lawyer advising his client as to the application of a statute will employ this type of reasoning. A statute is the major premise. The lawyer identifies his case as falling within the statute and then deduces the conclusion the way in which it applies to his client. Deductive logic is only applicable if a clear major premise has been established.

When the source is case law no major premise is likely to be clear from just one decision. The lawyer will have to examine several cases and reasoning from this particular decision to the general proposition. This form of reasoning is referred to inductive logic as opposed to deductive logic where the reasoning is from the general proposition to the particular conclusion on the case itself. Thus a lawyer advising in the application of case law to a particular situation first uses inductive logic to find the general proposition of law then deductive reasoning to determine how it applies to the facts.

One further element can be added to the model of inductive and deductive reasoning i.e. at the inductive stage the analyst must have some ideas of what he is looking for. He must categorize the issue and decide which previous decision are so closely analogous to the issue in question that they can be used as basis for inducing no relevant proposition of law.

Judges and legal advisers frequently use this form of reasoning in arguing that previous decisions are not sufficiently similar as to be relevant to the issue in question. Analogical reasoning of this kind is not strictly logical but is a loser form of reasoning raising broader issues. One limitation of this kind of reasoning is that since the kind of case being considered offers a choice of whether or not to extend the rule to the kinds of conducts under consideration to conduct will lack at least one of the characteristics displayed by the previous cases. This choice will be exercised as a policy decision. Cases which involve a question of what law should be applied come before the courts precisely because there is no purely logical answer to the question.

How then should the judge make this decision? He may be influenced by the historic backgrounds of the parties, of counsel and by his own personal views but probably the most important influence on his side is the knowledge that he will have to justify his decision in a reasoned judgment.

LEGAL REASONING AND JUSTIFICATION

The question is that arise is how does a judge justify his decision? Traditionally the judge will appeal to authority, to the sources of law, the past precedent and the statutory wording. The judgment will be written in such a way as to suggest that the authority provides an obvious answer. However, judges are also now more willing to recognize that the authorities present a choice and that their decision can be properly justified in other terms.

One writer NEIL MC CORMIC (PC) suggests two factors in particular may be considered by a judge when justifying his decision.

The extent in which a proposed decision coheres with existing principles and authorities. Therefore the greater the inconsistency with the existing legal framework that will result from a proposed decision the less the likely the decision it is to be adopted.

The broader consequences of the decision for potential litigants the legal system and indeed the rule of law in society will this consequences be acceptable in terms of justice or common sense.

.Other types of arguments may be used as justification. Judges may refer the standards of a reasonable man or may refer to notion of justice and fairness.

Some critics see such arguments as merely playing with language and argue that if arguments are deconstructed by unraveling the linguistic devices the emptiness of legal reasoning will be revealed. However, these critics act on the assumption that legal reasoning purports to provide a scientific route to the truth. The true nature of legal reasoning is that it is presenting and representing of those features of the cases which together operate in favour on the conclusion.

The reasons are like the legs of a chair not the links of a chain. In this respect legal reasoning resembles the process of practical reasoning used in everyday life where we tend to weigh a collection of reasons for or against a particular decision rather than think in terms of deductive logic. However unlike in day to day practical reasoning where anything within our own knowledge can be considered, a judge can only properly take to account those considerations which can be adequately argued before a court of law.

LIMITS OF LEGAL REASONING

The limitation of the judicial process were best described by Lord Simon in MILIANGOS VS FRANK GEORGE TEXTILES LTD (1976) AC 443. This case raised broad issues of monetary theory and international commerce Lord Simon refused to consider these issues because to do so would require The contribution of expertise from far outside the law for which judges have no training and no special qualification merely of their aptitude for judicial office.

This point has been reflected in the writings of Professor Ronald Dworkin of Oxford University who argued that judges do not decide cases on the basis of policy in the sense of proving effect to particular social or economic goals. Policy in this sense must be left to the legislature instead judges decide cases on the basis of principle in that they seek to give effect to rights that individuals should be regarded as possessing.

Determining what law applies to a particular fact situation can be as difficult as discovering the facts themselves. The sources of law dont always present a usual logical pattern suggesting the right answer. The generality and abstract nature of many legal rules makes it difficult to predict how the courts will resolve hard cases where these is a choice as to how the law should apply to the facts.

CASE LAW TECHNIQUES

ANOLOGY RULES & RESPONSE

Once the decisions of judges are remembered and recorded the system develops a practice of treating like cases as like this produces convenience and consistency.

The basic method of reasoning in this stage is by analogy. Analogy proceeds on the basis of a number of points of resemblance and attributes or relations between cases.

In law the process of analogy concludes with the use of the resemblance of the basis of a normative step. i.e. the application of the old rule to the new case. The debate that then makes place is not only about the material similarities and dissimilarities and similarity in fact but also about desirability and experiences of extending the rule to the new facts situations.

Legal reasoning by analogy thus involves two processes i.e. Analysis and Justification. Lawyers are concerned not only with what resemblances exist but also with what resemblances are material or significant for the purpose of development or restrictions of a legal concept.

As the law develops, broad statements of principles are made which are pitched at higher level of generality and this often epitomizes basic values or traditions of the legal system e.g. no man shall profit from his own wrong or he who come to equity must come with clean hand.

Sometimes once a rule or principle has been established its used in a manner that suggests deductions and the process of reasoning assumes a deductive form an example of this is Lord Atkins in Donoghue vs Stevenson which attempted to lay down basic general test of a duty of care in negligence. In this he formulated a principle wide enough to cover earlier cases. The principle he laid down has often been used as a starting point in subsequent cases. However, the process is not strictly logical as some element of discretion remains in the selection and precise formulation of the major premise and also in the degree of selection involved in the formulation of the minor premise. This is at the level of fact.

RATIO DECIDENDI-REASON FOR DECISION

The Ratio decidendi of a decision contains the principle of laws formulated by a judge. The proposition of law which was necessary for the decision, could be extracted from the decision, constitutes the ratio. The underlying principle of a judicial decision which is only authoritative is termed the ratio decidendi. As Salmond observes, the concrete decision is binding between the parties to it, but it is the abstract ratio decidendi which alone has the force of law as regards the world at large.

The courts while deciding questions on principle have either to follow an already existing rule of law, or, if there is no authority, to formulate some general rule and to act upon it. In so formulating the rule they must confine themselves to the requirement of the case in hand, the only judicial principles which are authoritative to quote Salmond again, are those which are thus relevant in their subject matter and limited in their scope.

The part of a case that is set to possess authority is ratio decidendi, finding the ratio of a case is an act that one gradually acquires through practice and study. What the doctrine of precedent declares is that case must be decided the same way when the material facts are the same. The ratio decidendi of a case can be defined as the material fact of the case pulse, the decision thereon.

The most influential test for finding ratio of a case is given by professor Goodhart as follows:-

The principle of a case is not found in the reasons given in the opinion this is because courts often states their reason to widely and sometimes incorrectly but the cases are never the less authoritative.

The principle is not found in the rule of law set forth in the opinion this is because sometimes there is no rule stated.

The principle is not necessarily found by a consideration of all the ascertainable fact of the case and the judges decisions.

The principle of the case is found but taking account of:

The facts treated by the judge as material

His decision as based on them

In finding the principle its also necessary to establish what facts were held to be material by the judge for the principle may depend as much on exclusion as its does on inclusion.

Though this test is useful its not always strictly followed by courts and it sometimes necessary to do more than consider the facts treated by court as material and the decision based on those facts. It may be necessary to examine the way the case was argued and examine the process of reasoning adopted by the judges and the relationship of the case to other cases. The status of the court may need to be considered as lower courts shown on increasing tendency to adopt an elastic view on what binds them.

Professor Julius Stone criticizes Professor Goodhearts theory on the basis that in attempting to produce a prescriptive rather than a descriptive theory he made a big mistake because he believes the process is basically one of choosing an appropriate level of generality.

Implicitly in the decided cases are a number of ratio decidendi, it is therefore a mistake to seek either for prescriptive definition of ratio decidendi or to expect a case yield a single ratio in any event. The general point is that ultimately it is the lower court considering the case in the light of the demand of the case before it which is in practical terms the arbiter of the appropriate level of generality at least until the latter case is itself reviewed. Ratio decidendi may therefore be thought of as an analogical technique and as a particular rule actually produced or likely to be produced by the techniques.

The ascertainment of ratio in a case therefore depends upon a process of abstraction from the totality of facts that occurred in it. Thus the higher the level of abstraction the wider the ratio, the question that arises is how to you know when to stop the process of abstraction. The answer is primarily by reading what the judge says in the judgment and also by our knowledge of law in general common sense and our feeling for what the law ought to be.

The finding of the ratio is not an automatic process but call for lawyerly skills and knowledge.

OBITER DICTUM

Proffesor Caleton Kemp Allen describes obiter dicta as statements of law made by a judge in the course of a decision, arising out of the circumstances of the case, but not necessary for the decision. He observes the in the course of argument and decision of a case, many incidental considerations arise which are (or should be) all part of the logical process, but which necessarily have different degrees of relevance to the central issue. Judicial opinions upon such matters, whether they be merely casual or wholly gratuitous(as if far more usual) of what may be called collateral relevance, are known as obiter dicta or simply dicta, and it is extremely difficult to establish any standard of their relative weight.

It is a mere saying by the way or a chance remark which is not binding upon future courts though it may be respected depending on the judge who made it, the court in which it was made, and the circumstance of its making. Though sometimes regarded as the opposite of the ratio it is not strictly so because both the ratio and obiter are analogical techniques.

Ratio gives rise to a rule following, whereas obiter to something of less force than a rule about which might be worth following. The reason for not regarding an obiter as binding is that it was probably made without a full consideration of the cases on the point and that if very broad in its terms. It was probably made without a full consideration of all consequences that may follow from it.

Sometimes a later court faced with an inconvenient decision in interprets the ruling as Obiter in order to resist being bound by it. Often this will occur by the later court viewing ratio decidendi of the first case as being unnecessarily wide. This process is known as distinguishing a case.

DISTINGUISHING

Courts do not accord to their predecessors unlimited power of laying down rules. The process of cutting down the expressed ratio of a case is one kind of distinguishing according to professor Glanville Williams who terms this distinguishing restrictive to differentiate it from the other kind which is genuine or non restrictive distinguishing.

Non-restrictive distinguishing occurs where a court accepts one expressed ratio of the earlier case and does not seek to curtail it, but finds that the case before it does not fall within this ratio because of some material difference of facts. Restrictive distinguishing cuts down the expressed ratio of an earlier case by treating as material to the earlier decision some fact present in that earlier case which the court had regarded as immaterial or by introducing an exception into the rule stated by the earlier court.

Distinguishing plays a very important part in legal argument, if one is conducting a case in court and the other side cites a case, there are two alternatives available i.e. apart from conceding it is important to

Submit that the case is wrongly decided and so should not be followed, but this is only possible if the case is not binding to the court.

The other is to distinguish it by suggesting that it contains or lacks some vital facts that is absent or present in your clients case.

The limit of the process of distinguishing is reached when a judge says that the precedent is an authority only on its actual facts. For more practical purposes this is equivalent to announcing that it will never be followed but this is very rare.

FINDING THE RATIO OF DECISIONS IN APPELLATE COURTS

The question that arises is how does one extract a ratio where the court sits with more than one judge and the judges give separate judgments? One starts with a simple proposition and that is follow the majority. However, this leaves several issues outstanding. Firstly while one can always discern their decision individual reasons may differs, usually if there are two grounds given for a decision by different judges the narrower ground should prevail as the ratio. Secondly, the case may be fragmented into a number of different issues and there may be different majorities on different issues. In Britain it has been held that where there is no discernable ratio common to the majority in the House of Lords, the courts of appeal is not bound by the reasoning in those speeches and the court will be free to adopt any reasoning which appears to be correct, provided it supports the actual decision of the house.

Practical factors affecting the weights of precedents

1. Generally the greater the age of the precedent: the greater will be the reluctance of the court to disregard it even if they think that the reasoning in it is not convincing. On the other hand where circumstances have changed rendering the precedent inappropriate to modern conditions the court may disregard it.

2. The status of the court and its composition are relevant factors. If the precedent is of an inferior court or if the judges were less than distinguished, this will affect the value of the case as a precedent. This is an interesting example of an authority within a system of authority.

3. It is important to determine whether the court was unanimous or whether there were strong dissenting judgments.

4. The adequacy/ accuracy of the report is also important. Earlier cases were often inadequately reported by modern standards and some law reports had a reputation for ignorance and neglect.

5. The subsequent history of the precedent is also very significant. If it has been followed in the later cases and approved by learned writers it will carry more weight.

6. Whether the case was fully argued or a relevant authority cited in it.

7. Subsequent courts are responsive to arguments based on the unjust or absurd consequences which ensue from a previous case. This factor will often be linked with a change in social conditions which renders the earlier decision socially obsolete.

8. Whether the judgment was a reserve one or not is also important. A reserved judgment is indicated in the report by the letter CAV (curia advisaria vult) before the judgment and is not delivered on the spur of the moment.




Briefing Cases




As you undertake the reading phase of legal research you need to take notes. The art of taking notes on court decision has been refined over the years into a widely accepted technique called briefing. This technique serves both as, an efficient means of taking notes, and as an additional analytical tool.




Initially summarizing cases may seem like a difficult time consuming and perhaps unnecessary task that you will probably be tempted to avoid altogether. However, experience shows that briefing is a valuable step in library research, without some structured way of recording the case you consider significant to your problem you would not remember all the results of your search and may have to retrace your steps.




Moreover reading a case requires the researchers close attention to extract all the significant quotients of the courts decision and briefing will assist you in focusing on the crucial aspect of a case and sorting out its helpful from its unhelpful points. Briefing is a technique that can be mustered with practice. As you do it you develop your own unique style which will best serve your purpose.




A case is generally briefed most effectively if it is read all the way through at least once before you even start to prepare a brief. If you begin to brief before you finish a preliminary reading of the entire case, you are apt to find that you've briefed unnecessary, irrelevant or even inaccurate points of law. A comprehensive brief will include the following:-

The name of the case

The citation including parallel citations.

Date the decision was rendered.

The vote ie how many judges were for and against

The author of the majority opinion.

The procedural nature of history of the case.

The legal topic(s) covered by the case.

Summary of the facts.

The question presented by the case and this should be phrased so that each question can be answered by yes or no.

The answer to the question presented.

A summary of the courts reasoning in reaching the answer

However, not all these points need to be included in every brief for our purpose you need the parties the procedural history, f act the issues, the holding and the reasoning.




SUMMARY OF READING THE LAW




Internal Evaluation:




The aim here is to determine whether the authority applies to your research problem. You should bear in mind the following:-

How similar are the facts of the court decision to those of your research problem.

If the decisions facts differ but the decisions holding is helpful to your position. Can you exercise the decision facts at some level of generalization that increases their similarity to the facts of your problem?

Alternatively if the decisions facts are similar to your problem but your decision holding undermines your position can you re-characterize i.e distinguish the facts of the decisions in a way that emphasizes distinguishes so that the holding will seem less relevant.

If you conclude that a decisions facts are sufficiently similar to those of your research problem to make the decided case relevant is the decision holding relevant to any legal issues present in your problem.




External Evaluation




The aim is to determine the current status of the case i.e. its validity

(1) Has the case been overruled or otherwise severely limited (2) If the case has not been explicitly overruled or otherwise invalidated what is its current stature in law. Would someone relying on the authority be standing on solid or shaky ground. In this regard it may be helpful to turn to secondary sources, such as practice and law reviews for their commentary if any on the authority.




Legislation in Language




Whereas case law emanates from the needs of particular facts situations and the solution of the particular problems legislation usually speaks in general terms. Legislative rules relate to classes of persons behaviour or situations.

The drafter of legislation is faced with a dilemma for not only must a proposed rule be general enough to cover all foreseeable instances within the general policy of the statute. It must also contain sufficient detailed to ensure that its meaning is clear.




Breath of scope and precision however are not always convertible objectives. In practice different legal systems employ different systems of grafting to cope with the problem.

Some prefer to use general principles e.g. the French while English grafting has tended to contain excessive details.

The results are sometimes difficult for a lawyer to understand and frequently are unintelligible to the lay person. Some areas of law such as tax and criminal law require detail in the interest of the subject but such a style may not be appropriate to all areas of law.




Family law for example may be an area where parliament may wish to leave the courts with the discretion to administer law as they think best having regard to the circumstances of each case.

In attempting to produce a clear and an unambiguous test, the legislative drafter is subject to the normal rules and natural limitations of the English language.

The main sources of uncertainty are ambiguity, vagueness and generality.

Ambiguity is sometimes classified in 3 groups:-

Lexical

Syntactic

Contextual




Lexical ambiguity arises from the range of possible meanings attributable to a single word.

Arises from a range of possible meanings attributable to a single word. Sometimes a word may have several related meanings attached to it and sometimes the same word has two or more quiet distinct meanings.

Syntactic ambiguity arises from the actual structure of sentences while contextual ambiguity arises from the relationship of one word or phrase or sentences to others in a particular context.

An example of the latter is inconsistency between two or more statutory provisions a term is vague when there are borderline cases where there is no definite answer as to whether the term applies or not.

These are the cases which fall within a words range of applications.

Unlike ambiguity vagueness is often deliberate.

The legislature may wish to maintain flexibility and use vague words as a means of doing so.

Many value words eg fair, or reasonable contain a vague element.

In generality like vagueness is not necessarily a problem in a technique which can be used creatively to confer discretion

Generalization is a process which is vital to both thinking and communication.

In legislating as a response to demands for new law or for the identification of the old legislators labour under severe handicaps while it may be possible to see one facet of a problem or one specific context in which the problem may arise. It is often difficult to anticipate the various guises in which the problems may appear.

As a result stating the legal solution in a form of language embracing all the cases the legislature wants to deal with, while excluding those matters with which its not concerned is a difficult task.

More over words are not precision instruments but there means shifts through time and through different contexts, yet theoretically the verbal formulation by the legislature is the enduring official and authoritative text until amended.

Causes of Uncertainity

Every legislative draftsman dreams of drafting and seeing enacted into law a statute of his devising that leaves no contingeneralcy unprovided for and that is clear and unambiguous in its direction as to each and every conceivable fact situation which may take place in the world. However, the gap between aspiration and accomplishment is usually unbridgeable no matter what the draftsman does, there will still be causes for which the statute affords no certain line,

Some of the cases of this situation are:-

Words are imperfect symbols to communicate intent: this is a problem encountered in the preparation of all legal documents. What makes the draftsmans task more difficult is the fact that the words of a statute are aimed at at least three classes of readers.

Firstly legislators who are to examine the bill to decide whether its in accordance with their specifications.

Secondly lawyers who must use the statute in advising and litigation.

Thirdly judges who will give the statute its final and authoritative interpretation.

An intent that seems obvious the legislative experts on a drafting committee might be ambiguous to those affected and their lawyers and quite unintelligible judges having no special knowledge and experience in the field of regulation.

Unforeseen situations are inevitable

Unforeseen cases account for the great majority of the instances of statutory uncertainty.

In drafting effective provision a specific needs necessitating the legislation must be made but the statute must be written in the form of a proposition of general applicability.

A reasonably skillful for the draftsman will make an unmistakably clear provision of the specific situations called to his attention and will use his imagination to anticipate and take care of other reasonably foreseeable situations.

However, sooner or later every generally worded statute will fail to provide a certain direction as to the handling of those inevitable cases that nobody thought of.

Uncertainty may be added in course of enactment.

After a statute has been drafted it must be passed and there are many stages in the process at which uncertainty may be added.

Changes made in the legislature are likely to be made without having time to consider the effect of the changes on the articulation of the bill as a whole.

An amendment made may add or confuse the inconsistence provisions which fit awkwardly into statutory pattern. Thus it is wholly unrealistic to read a statute as if it were the product of wholly scientific detached and uneventful deliberation.

INTERPRETATION OR LEGISLATION BY COURTS

The courts rule with regard to legislation as changed in the last 600 years.

Originally judges as members of the kings council took part in the formulation of the legislative policy and sometimes in the drafting of legislations.

The earliest approach to legislation was therefore pretty loose and it was only later that a more rigid concept of separation of powers arose.

By the end of 17th century such a doctrine had developed and this inevitably had an influence on the judges perception of their role with regard to legislation.

From this time on judges concentrated on interpreting the wording of the legislation. When this led to unfortunate results they were on occasion caused to seek the secondary meaning to avoid such results.

Traditionally the courts have approached the question of interpretation in terms of the application of certain canons of construction and presumptions. The logical statute of this is not without problems as they are strictly not rules. They do not bind the courts and are too general to be called principles.

As a result they are sometimes called canons or maxims to emphasize the high level of generality.

A distinction could be drawn between ascertaining a meaning and justifying a meaning which has been ascertained.

The primary use of the canon and the presumptions is probably justification in that they justify an interpretation which has been arrived at by a general consideration of the facts of the case the statutory rule and its purposes.

MAIN CANONS/ RULES OF INTERPRETATIONS

Object of interpretation:- according to Maxwell the object of all interpretation of a statute is to determine what intention is conveyed either expressly or impliedly, by the language used, so far as is necessary for determining whether the particular case or state of facts presented to the interpreter falls within it. Interpretation is the process by which the court seeks to ascertain the meaning of a particular legislation.

The function of the judge in administering the statute law is twofold

to discover the facts of the case and then

To discover how the legislature intends him to act in such circumstances. The legislature could foresee all the cases and make its intention clear so as to make it applicable to all of them.

There are three methods of interpretation viz i) the Literal or plain meaning rule ii) the golden rule and iii) the mischief rule

LITERAL RULE ORDINARY MEANING APPROACH (GRAMMATICAL INTEPREATATION)

The literal or plain meaning rule has lucidly been expressed by Jervis C.J in Abley v Dale (1851) 11 C.B. 378, 391): if the precise words used are plain and unambiguous, in our judgement we are bound to construe them in their ordinary sense, even though it would lead, in our view of the case to an absurdity or manifest justice.




In construing statutes the cardinal rule is to construe its provisions literally and grammatically giving the words their ordinary and natural meaning. It is an elementary rule of construction that the language used in a statue must be construed in its grammatical sense. It is not competent to a judge to modify the language of an Act in order to bring it in accordance with his own views as to what is right and reasonable. When the phraseology of an enactment is clear and unambiguous and capable of one and only one interpretation, it is not open to the courts to give a go-by to that interpretation simply with a view of carrying out what is supposed to be the intention of the legislature.



The first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself. Unless the context otherwise requires the words used by parliament that be given their ordinary or usual meaning. Arguably adhering to ordinary meaning is the fairest means of ascertaining and interpreting parliaments intention. This approach emerged at about the same time parliament was established as the supreme law making body. In the Sussex Peerage case chief justice Trendon stated The only rule for the construction of Acts of parliament is that they should be construed according the intent of parliament which pass 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 that natural and ordinary sense.

The words themselves alone do in such a case best declare the intention of the law given its assumed that there is generally a plain meaning and its the courts function to give effect to it even though the results is absurd or unjust. The remedy for such absurdity or injustice is thought to lie in the hands of the legislature. While adherence to ordinary meaning has much to recommend it has a starting point for interpretation the approach lays itself open to criticism when expressed in such a way.

Not only does it adopt what can be regarded as too narrow a view of the judicial function its direction to apply the ordinary meaning of words implies a misunderstanding of the complexity of the language itself.

Simple direct results cannot be expected from a concept which doesnt itself posses those qualities.

Its inevitable that there will occasionally be disagreement as to what the ordinary meaning of words actually is.

Similarly its not clear what usage of a word is to be taken as the representative usage of that society has approved.

The chosen standard of speech should not correspond to slang usage, nor should it necessarily be that of the judicial community.

Evidence of meaning derived is subject to contrary indication in the relevant statutory context where legislation is aimed at one particular group in society then obviously the ordinary meaning of the statutory language should be taken as the ordinary meaning of that particular speech community.

Context is thus of paramount importance and statutes must be read as whole and meaning given to a disputed passage only after such a reading.




THE GOLDEN RULE (SAVING CLAUSE) Rotich Samuel Kimutai V/s Ezekiel Lonvongopeta and Others.

The golden rule departs from the strictly literal rule in as much as according to the literal rule the plain meaning has to be adhered to even to the extent of absurdity. It is no doubt true that it is not the function of the courts to fill in gaps and omissions, but in exceptional cases the courts have to perform this function in accordance with golden rules of interpretation.




The other case where the letter of the law, observes Proffessor Fitzgerald, “need not be taken as conclusive is where a literal interpretation of the statute would lead to such absurdity and unreasonableness as to make itself evident that the legislature could not have meant what is said. For example, there may be some obvious clerical error in the text, such as a reference to a section by the wrong number, or the omission of a negative in some passage in which it is clearly required. But the courts will go much further than this, and in, order to avoid what they regard as absurdity, imply into statues saving clauses that have not been expressed. This is the so-called golden rule of interpretation, the saving clauses so implied are generally such as to preserve the previous principles of the common law.

- Traditionally the ordinary meaning approach stopped short of a consideration of the consequence of a particular construction. Parliament alone was considered responsible for eliminating undesirable consequences by amending law where necessary.

However some judges took the approach that of times ordinary meaning is departed from and a secondary meaning can be adopted where application of the ordinary meaning would lead to absurdity, incongruity or inconsistency.

As early as 1836 the court in Becks vs Smith said its a very useful rule in the construction of a statute to adhere to the ordinary meaning of the words used and to the grammatical construction unless that is a variance with the intentions of the legislature to be collected from the statute itself or leads to any manifest absurdity or repugnance in which case the language may be varied or modified so as to avoid such inconveniences but no further.”

In Riverside Wear commissioners vs Adamsons Lord Blackburn put it thus I believe that it is not disputed that what Lord Wensleyden used to call the golden rule is right. that we are to take the whole statute together and construe it all together giving the words their ordinary signification unless when so applied they produce an inconsistency or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary significance and to justify the court in putting on them some other significance which though less proper as one which the court thinks the words will bear.

The degree of absurdity necessary before the ordinary or primary meaning can be departed from has been described as great or obvious or manifest. This approach bears a relationship to both the ordinary meaning and purposive approaches to interpretation. Prima-facie the statutory words will be given their ordinary meaning.

Departure from ordinary meaning will only be allowed where the words used are also capable of bearing some secondary or less usual meaning and there are doubts as to the meaning parliament intended.

Where the application of ordinary meaning would lead to some absurdity or inconsistency the less usual meaning will be preferred.

Its therefore clear that in such analysis the court construes the statutory rule not just in its immediate context but also in its broader context of its consequences.

MISCHIEF RULE/RULE IN HEYDONS CASE

The mischief rule was lucidly explained in Heydons case

There is yet another rule of interpretation which is called the mischief rule. It emphasizes the general policy of the statue and the evil at which it was directed. Mr. Justice Story while referring to the preamble of a statue, which in accordance with the mischief rule is recognized as bearing the intent of the legislature behind the enactment observed as follows:

the preamble of a statute is a key to open the mind of the makers as to the mischiefs which are to be remedied and the objects which are to be accomplished by the provisions of the statute.

- It is common for judges to attempt an interpretation of statutes that best accords with what they perceive to be the statutory purpose.

This is commonly called the purposive approach and bears some resemblance to two approaches used in civil law Jurisdictions i.e. the historical and teleological approaches.

The former seeks primarily to ascertain the intention of the draftsman by research into the legislative History of the statute.

The later is an interpretation by reference in the end of purpose or social goal of the legislation.

This current judicial practice is based on the so called mischief approach which was laid down in 1584 in Heydons case, and it was resolved by them that “ 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:-

what was the common law before the making of the Act,

What was the mischief and defect for which common law did not provide.

what remedy the parliament has resolved or appointed to cure the diseases of the common law and

The true reason of the remedy and then the office of all the judges is always to make such constructions as shall suppress some intentions and evasions for convenience of the mischief.

- This statement of the mischief approach clearly needs modification in view of its archaic language and assumption that legislation is only designed to deal with some evil and not to further the social goals.

The most important short coming of the formulation however is that is reflected a different constitutional balance when the doctrine of separation of powers had not fully developed and assumed statute law to be subsidiary and supplemental to existing common law.

The use of Heydons case in a modern setting was best laid out by Lord Simon in a case Mounsell V/s Olins (1975)AC 373 where he favoured a too tiered approach and said the rule was available as two stages.

The first task of a court of construction is to put itself in the shoes of the draftsman to consider what knowledge he had and importantly what statutory objective he had if only as a guide to the linguistic register. There is the 1st consideration of the mischief, being thus placed in the shoes of the draftsman, the court proceeds to ascertain the meaning of the statutory language. In this task the first and most elementary rule of construction is to consider the plain and primary meaning in their appropriate register of the words used. If there is no such plain meaning i.e. there is an ambiguity a number of secondary canons are available to resolve it. Of this one of the most important is the rule in Heydons case. Here then may be a second consideration of the mischief.

A court must thus presume that parliament intended to enact provisions consistent with legislative purpose.

In this respect the purpose in golden approaches share a similarity. The absurd or repugnant result that leads a court to depart from primary meaning of the words are usually absurd or repugnant for the very reason that they are inconsistent with the supposed legislative intention.

In essence therefore referring to statutory purpose for purposes of interpretation entails the court looking at the object or purpose of an act and then construing doubtful passages in accordance with that purpose. When Heydons case was decided judges needed to look no further than the act itself to discern the object, for the statutes contained lengthy preambles setting out the particular mischief/defect in the common law that the statute was designed to remedy.

It was thus a rule of construction of actual word in a statute and nothing else.

- However modern statute contains no such preamble rules reference to strenuous document may be necessary.

- Adoption of the purposive approach raised the question of how far beyond the act the court can go in determining what the purpose was.

- Generally evidence of political history of a statute is excluded.

This rule is justified by the burden that will be placed upon legal advisors and the uncertainty that would be introduced in to the law if such historical materials had to be consulted.

However some extraneous materials will be permitted to be used as formal evidence of parliament intention. Subsequently the effectiveness of interpretation by reference to statutory purpose will depend grossly on the availability of reliable evidence of that purpose.







EVOLUTION OF A UNITARY APPROACH

Over the years judges have become aware of the importance of context in ascertaining meaning and with this awareness, a merging of the once diverse approaches has begun to occur.

- Its now no longer possible to pigeon hole judgments neatly into one/or rather of the traditional categories.

- The ordinary meaning of words will now be determined after the statute has been read as a whole in its appropriate context.

- The purpose of a statute is commonly regarded as part of the appropriate context.

- Indeed it has been written that today theres only one approach and that is that the words of the Act are to be read in their entire context in their grammatical and ordinary senses, harmoniously with the scheme of the Act, the object of the Act and the intent of parliament.

INTERPRETATION IN THE LIGHT OF POLICY

Though words used in ordinary speech have a central core of meaning that is relatively fixed. They also have a fringe of uncertainty when applied to the infinitely variable facts or experience e.g. the general notion of a building is clear but a judge may not find it easy or decide whether a temporary wooden hut, telephone booth, kiosk, wall or a tent is a building. In problems like this the judge is involved whether he likes it or not in legislation i.e. if he decides that a wooden hut is a building he is in effect adding an interpretation clause to the statute giving building and extended application. Whereas if he decides the hut is not a building he adds a clause giving it a narrower meaning.

Judges will however almost pretend to get such a solution out of the words of the Act rather than admits that the question is of legislation which must be settled with the help of the policy implicit in the Act

LISBET V/S REIN & BURN (1910) 2KB679

THE CONTEXT RULE

In addition to the three main canons of interpretation one more canon can be added and this is the context rule. This rule is sometimes classified as one of the presumption employed by courts as an indicator of parliamentary intention. The context rule can be expressed in the form latin phrase.

NOSCTOUR A SOCERSs: This means that a word take its meaning from the other words with which its associated judges may look up the meaning of a word in a dictionary or technical work between this ordinary meaning may be controlled by the particular context.

One may look not only at the rest of the section in which the word appears but at the statute as a whole an even at earlier legislation dealing with the same subject matter. However need not always have a consistent meaning attributed to them and the context may show that the same word bears two different senses.

PRESUMPTION OF INTENTION

Courts employ various presumptions as indicators of parliamentary intention.

- These presumptions can be classified into 2 main groups: those related to form and those related to substance.

- The former relate to questions of language grammar syntax and logics.

- The latter more specifically regain in nature

- In the first category fall presumption such as a change in words implies a change in meaning and that one part of a statute is not intended to contradict another part.

PRESUMPTIONS RELATED TO FORM

EJUSDEM GENERIS

Also known as Lord Tenderenss rule, this rule provides that where words of specific meaning are followed by general words, the general words will be construed as being limited to persons or things of the same general kind or class as those enumerated by the specific words. It is thus a rule of construction which lays down that when particular words are followed by general words, the meaning of the general words is to be understood with reference to the particular words; the general words are to be limited to the same kind as the particular words. The rule restricts the meaning of general words to things or matters of the same kind (general) as the preceding particular words.

This principle is based on logician approach, the classification and definition by GENERAL ET DIFFERENTIA

- Lord General divides the world into broad categories called GENERALERA which are characterized by some essential attributes and the SPECIES which have merely incidental differences.

- This ejusdem generis principle provides that where there is list of particular specials which fall under one general and thus are followed by general words. The potential scope of the latter word is cut down to make them fit into the general.

- As a rule where in a statute there are general words following a particular and specific words the general words must be confined to things of the some kind as those specified.

- As a rule of construction this must be applied with caution and subject to the primary rule that statutes are to be construed in accordance with the intention of parliament.

- For this rule to apply the specific words must constitute a category class or genus and the general words must not by their nature exclude themselves from the category class or genus. So that for e.g. a superior thing wont be held to be within a class of inferior things.

- If the particular words exhaust a whole genus the general words must be construed as referring to some larger genus.

- Even where this rule does not apply to a general word because there is no genus a court may find other indications that the general words should be given a restrictive construction.




SHAH VERSHI DEVSHI V/S TRANSPORT LICENSING BOARD (1971) EA289

The maxims EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS meaning the express mention of only one of several related thing, person or matter indicates the exclusion of others.

EXPRESSUM FACIT CESSARE TACITUM meaning where there is express provision for certain things then anything not mentioned is excluded. This maxims generally apply to the interpretation of other legal documents.

When applied to statutes caution must be exercised since the omission to mention things which appear to be excluded may arise from inadvertence or accident because it never struck the draftsman that they needed specific mention.




General and particular enactments

- Wherever there is a general enactment in a statute which if take in its most comprehensive sense would override a particular enactment in a statute the particular enactment must be operative and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply.

“GENERALIA SPECIALIBUS NON DEROGANT particular words override more general provisions

GENERALIA SPECIALIBUS NON DEROGANT-CONSISTANTLY IN MEANING OF A WORD

Means particular words override more general provisions. Words are presumed to be used consistently. As a general rule a word must be considered as used throughout a statute in the same sense although this rule does not prevail over the rule that a word must be read in its context. It may happen however that the same word is used in different senses in the same section or in different sections of the same statutes.

Where in the same statute and in relation to the same subject matter, different words are used there is a presumption that the alteration has been made intentionally.

- However this presumption doesnt carry much weight in relation to words used in different parts of a long and complicated statute. Retrospectively

PRESUMPTION RELATING TO SUBSTANCES

- The various presumption relating to substances are all negative or restrictive in nature.

- they are the background of legal principle against which the Act is viewed and in the light of which parliament is assumed to have legislated without being expected to express them.

- Some embodied traditional notion of justice e.g. the rule that a statute is presumed not to be retrospective save in matters of procedure which others reflect what was almost certainly parliaments intention e.g. that an act is territorial in operation unless a contrary intention is expressed.

.- Presumptions may be regarded as instances of proposition that the duty of judges goes beyond automatic enforcement of the dictates of parliaments.

- The judges function is also to do justice in accordance with certain set principles of law in a free society and they are entitled to assume that parliament does not intend to subject those principles unless there is a clear statement that it does e.g. when parliament creates a new crime it is presumed that it is subject to certain differences at common law e.g. self defence and duress and often to the requirement of a state of mind e.g. intention knowledge or recklessness.

- These are judge-made principles drafted on the statute by implication.







1) Presumption against retrospective operation

- The general rule is that all statutes other than those which are mere declaratory or which relate only to matters of procedure or evidence are prima-facie prospective and retrospective effect is not to be given to them unless by express words or necessary implication it appears that this was the legislatures intent.

- Similarly the courts will construe a provision as conferring power to act retrospectively only when clear words are used.

- It is also in reliance on this provision that courts have frequently held pending proceedings to be unaffected by changes in law so far as they relate to the determination of substantive rights.

- Thus in the absence of a contrary indication the substantive rights of parties fail to be determined by the law as it existed when the action was commenced.

2) Presumption that the Republic is not bound

- The Republic is not bound by the provisions of any statutes unless the contrary is expressly stated or there is a necessary implication that it was intended to be bound.

- An aspect of the rule is that statutes should not be construed as having an effect which prejudices the republic.

- The republic is not normally bound by a statute imposing a duty or tax.

3) Presumption that taxation statutes are to be strictly construed.

- The language of a statute imposing a tax duty or charge must receive a strict construction in the sense that regard must be had to the clear meaning of the words.

- If the republic claims a duty under the statute it must show that the duty is imposed by clear and unambiguous words and

- Where the meaning of the statute is in doubt it must be construed in favour of the subject.




4) Presumption that a statute is not intended to conflict with Public International law

- Where a statute gives effect to the recommendation of an international agreement the court will assume that the statute is not intended to conflict with international law and so far as is possible will construe the statute accordingly.

- If an international agreement has been embodied in legislation in other jurisdiction the court will lean towards adopting an interpretation of the meaning of words which has been adopted in those jurisdiction.

- Effect must be given however to the clear words in a statute even if they are not in accordance with an international agreement or are contrary to international laws.




5) Presumption that legislation is territorial in operation

- it is presumed that statutes passed by Kenyan parliament extend to the whole of Kenya. No part of Kenya will be taken as excluded in the absences of clear words or unnecessary implication to that effect.

- Similarly it will be presumed that legislation doesnt extend beyond the boundaries.




6) Presumption that criminal statutes are to be construed strictly

- Its a general rule that penal enactments are to be construed strictly and not extended beyond their clear meaning.

- This general rule means no more than that if after the ordinary rules of construction have first been applied as they must be, the remains and doubts or ambiguity of the persons against whom the penalty is sought to be enforced is entitled to the benefit of doubt

-for a penalty to be enforced it must be quite clear that the case false within both the letter and the spirit of the statute.




7) Presumption against interference with proprietary or contractual rights

- unless its clearly and unambiguously intended to do so a statute should not be construed so as to interfere with or prejudice established private lives under contract or so as to deprive a man of his property without his having an opportunity of being heard.

- In particular an intention to take away property without giving a legal right to compensation of a loss as not to be implied to the legislature unless that intention is expressed in unequivocal terms.




8) Presumption against conferment of right for imposition of duties on foreigners

- By reason of the presumption that parliament intends to observe the principles of public international law a statute will not willingly be construed as imposing liabilities on or reducing the rights of foreigners in respect of matters outside the field of criminal law.

- Otherwise parliament is presumed to be concerned with all conduct taking place within the territory for which it is legislating and with no other conduct.




9) Presumption that express words are required to oust the jurisdiction of the court.

- Unless they do so by express words or necessary implication statutes should not be construed so as to take away the jurisdiction of superior courts or so as to extend that jurisdiction by giving a right of appeal from inferior courts.

- Statutory provisions giving jurisdictions to inferior courts and to give departments or to body created ad hoc must be strictly construed.

EXPRESS DIRECTIONS ON INTERPRETATION

-General provisions regarding construction of all statutes are contained in the interpretation of general provisions Act Cap 2 of laws of Kenya.

- The long time of Cap 2 states that An act of parliament to make provision in regards to construction application and interpretation of written law to more certain general provisions with regard to such law and for other like purposes.

- The penal code Cap 63 also contains a direction regarding its interpretation in Section 3.

This provides that this code shall be interpreted in accordance with the principles of legal interpretation obtaining in England and expressions used in it shall be presumed so far as is consistent with their context and except as it may otherwise expressly provided to be used with the meaning attached to them in English criminal law and shall be construed in accordance there with.




INTERNAL AID TO CONSTRUCTION

1. Definition Section

- Most statutes contain definition sections. Where such a section is present it may alter the ordinary meaning of words for a particular statute.

-It may extend or restrict the meaning. Where such sections appear in the statute they must be applied provided that in their terms they are not subject to qualification unless context otherwise require

2. Long title

- Its a admissible as an aid to interpretation if the wording of a provision is ambiguous

3. Short title

- It may generally not be relied upon.

4. Pre-amble

-It was once used as a useful source of the legislatures intention.

-Modern statutes however rarely contain a preamble.

5. Headings to groups of sections

These are not part of the statutes and can only be called an aid to explain un-ambiguity

6. Marginal notes

-SHIRE V/S THABITI FINANCE CO. LTD (2002 )1 E.A 27 the court held that In this country marginal notes are taken into account in construing

7.The meaning of statutory provisions

8.Punctuation

-Previously it could not be referred to as early statutes had no punctuations

-This position has changed and it can be referred to.

NEW GREAT INSURANCE CO. OF INDIA VS CROSS




9. Divisions into sections and sub-sections

- It can be relied upon to provide a context in which a word is used.




EXTERNAL AIDS OF CONSTRUCTION.

-There is no rule that either permits the wholesale use of or places an outright ban on extrinsic material as aids in the interpretation of legislation.

-Each category of extrinsic material has to be considered by court on its own merits.

- In the attorney of Uganda vs Kabaka’s government the court said that if the words of a statute are clear and unambiguous it will be unnecessary to look beyond them to discover their meaning or intention.

- However, if thats not the case the courts task is to ascertain the intention of the legislative authority.

-In doing so the court said its well settled that the opinion of the draftsman with regards to the underlying intention of the legislation he has drafted is irrelevant and that being so the opinion of those who have instructed the drafts man are in our view equally irrelevant whether those opinions are expressed in records of meanings or otherwise,

-In the Katikiro of UG vs AG of UG the court held that ordinarily the reports of commissioners are not admissible for the purpose of directly ascertaining the intention of the legislature though they may perhaps be looked at as part of the surrounding circumstances for the purpose of seeing what evil or defects the Act under construction was designed to remedy the court went on to say that the statement of objects and results for a bill is not admissible to aid in its construction neither may reference be made to the proceedings of the legislature which resumed in its passing.

DIFFERENT EXTINSIC

Use of prefatory materials and an aspect of the mischief rule.

The bill itself

Statutes in pari material (where a local statute was enacted by the expedient of enacting in whole or in significant part on English statute or one taken from another English dependency. The local statute and the foreign parent are then said to be in pari material)

Statutes that expressly.

Earlier statutes that have been replaced

Statutes replacing common law.

International agreement.

Factual and policy background.

Contemporaneous circumstances of the statutes.

Contemporaneous expositions or commentaries of the statutes.

Oral evidence as to the proving of words.

Subsequent legislation.

Administrative practice.

The use of English decisions.

Its clear that this court is not bound by any English decision whether given before or after independence nevertheless this court would pay due regard to the decision of an any commonwealth court where as similar system of law to that pertaining in E. Africa exists and will of course pay regard to the decision of the English court especially where those decisions enunciate the common law of equity of incomplete selected of general application or statutes which substantially copied in E. Africa.

STATUTORY INTERPRETATION IN THE MODERN STATE

3 types of legal approach to statutory interpretation may be distinguished.

Pseudo-logical/textbook approach.

Its paramount in the current textbooks on the subjects.

Consists of 3 main pillars of traditional statutory interpretation i.e the literal rule, golden rule and mischief rule.

This approach has the following short comings.

The rules conceal each other out and by emphasizing either one or the other judges can adopt a broad or narrow approach a reformed for a conservative attitude.

Case: HENIED VR 2001 IEA 71

Toy gun

Existence of each rules further confuses the position eg the rule against the use of the history of a statute is almost impossible to reconcile with the mischief rule.

Some particular social or political preconceptions are elevated into absolute rules eg the presumption against interference with property rights.

Social policy approach

It was propounded by writers who criticized the use of the 1st approach on 2 grounds:-

The prevailing rules allow for diversity, vacillation and confusion

ii)The prevailing tendency of courts is one of solicity to modern social reform legislation. They therefore support an approach that would involve greater sympathy reward social objective of a statute.

FREE INVITATION APPROACH

This 3rd school of thought advocates the use of free and creative conclusion by the judge in the absence of any reliable objective diary.

The supporters of this approach advocate the power of the judge to alter a statute where the results of literal interpretation and be absurd or grossly unjust.

A comparative evaluation shows that non of this approaches is in itself sufficient.

The textbook approach provide useful guider for the vouline case but fails merely in solution of new situations or marginal problems where a place between values is necessitated.

The social policy approach offers clearly reasonable guidance only for construction of those statutes which have a clear and defiance social objective.

The free intuition approach opens the way to ascertaining and prejudicing and prejudice.