What is an off-plan contract? What is a conventional contract? COMPARISON AND CONTRAST THE CONTENTS OF AN OFF-PLAN CONTRACT AND A CONVENTIONAL CONTRACT FOR THE SALE OF LAND

 COMPARISON AND CONTRAST THE CONTENTS OF AN OFF-PLAN CONTRACT AND A CONVENTIONAL CONTRACT FOR THE SALE OF LAND

Introduction

An off-plan contract occurs where an investor invests money in a property, or a project that is yet to be completed whereas a conventional contract for the sale of land is a transaction that involves the sale of an actual land for an agreed consideration.

Legal framework

Section 23(3) of the Law of Contract Act CAP 23 Laws of Kenya, stipulates that all contracts with regard to the disposition of an interest in land must be in writing, signed, and witnessed by a person who was present during the signing of the contract.

Therefore, regardless of the nature of the Contract be it Off-plan or the Conventional Contract for Sale of Land, the law of Contract out rightly stipulates that it should be reduced to writing, signed, and witnessed by both parties.

The contrast between the contents of an off-plan contract and a conventional contract for the sale of land

The process of purchasing an off-plan property commences with the signing of three documents:

i) The Reservation Form – This is to reserve or book the unit as the buyer and effectively notify the developer not to sell the unit;

ii) The Letter of Offer – This indicates the amount of money that the developer is willing to accept in exchange for granting ownership of the off-plan property to the buyer;

iii) Sale Agreement – This is the final and binding document once the developer and the buyer have agreed on the property to be sold, the price, deposit to be paid, payment period, and the mode of payment.

The aforementioned process of commencing the purchase of an off-plan property departs from how a conventional contract for the sale of land commences as it kicks off by executing a reservation form, unlike the conventional contract which kicks off by issuance of a letter of offer. 

A tabular contrast of the variance:-

 

OFF-PLAN CONTRACT	CONVENTIONAL CONTRACT
Deposit more than 10%. Usually 25% or as per agreement	Standard Deposits of 10% purchase price
Payments of purchase price split in many installments	Two installments or pursuant to an agreement made by the parties to the Contract.
The completion period usually long enough to allow development e.g. 2 years	The completion period usually fixed at 3 months
Specified physical conditions that is the buyer can make recommendations to the developer on certain specific.	Land sold as it is
An off-plan Contract thrives on a promise to deliver the property the buyer has paid for.	A conventional contract involves a subject matter that is exchanged for a consideration

 

Similarities between an off-plan contract and a conventional contract for the sale of land.

Despite, the variance that we have established in the aforementioned analysis of the two types of Contracts being the Conventional Contract for Sale of Land and Off-plan Contract there still exists similarities as highlighted hereunder:-

                                                       I.            They subscribe to the law of Contract being, The Law of Contract Act, CAP 23 Laws of Kenya;

                                                    II.            They facilitate the purchase of a property; and

                                                 III.            They are enforceable in case of default.

The process of buying property/Land Transfer in Kenya

 The process of buying property in Kenya is as below;

1. 1. Identify the property you would like to buy

2. 2. Conduct legal due diligence

3. 3. Carry out the transfer of the property

Identify the property you would like to buy

The most popular way is by word of mouth or through a real estate agent or through newspaper advertisements. You can also talk to lawyers who are sometimes contracted by their clients to sell property on their behalf.

Conduct legal due diligence

At this stage, it’s important to identify a lawyer you would like to work with who will help you with the following stages of the transaction

Conduct a search

Why do you need to conduct a Search?

1. To ascertain the ownership of the property

2. To check the property for any encumbrances

3. To check for any land rates that may have accrued.

If it’s a company or land buying company, obtain the CR12 from the Registrar of Companies to ascertain that;

1. The company is still in existence.

2. Who are the directors of the company.

You may further want to do a case search on the Kenya Law website to ascertain that the company/Housing Sacco has not been sued by other buyers for similar transactions. It may be useful to visit the company offices or contract someone to do the same on your behalf.

A search is done at the Ministry of Lands registry and could take 1-3 days.

Land Survey Plan
A land survey plan is a specialized map of a parcel of land . It determines and delineates boundary locations, building locations and physical features .The plans are issued by the Ministry of lands and Physical Planning through the Department of Survey.

Obtain the Land Clearance Certificate and Land Rent Certificates

Depending on the land tenure regime, the land rates and rent if unpaid will need to be paid so that you can obtain the Clearance Certificates.

Valuation of the Land and Payment of Stamp Duty

The Government Valuer will visit the property so as to ascertain the value of the property. The stamp duty will be assessed based on the value given by the Government Valuer. The next step is the payment of the stamp duty to the Kenya Revenue Authority. For this, you will require both the transferor and transferee PIN. Depending on the value of the property, a Capital Gains Tax may apply. Read more about Capital Gains Tax here.

Carry out the registration and transfer of land

Once you are satisfied that the property is free from any encumbrances or illegalities, your lawyer should draft a sale agreement for both the transferee and transferor to sign. Some agreements may provide that at least a deposit of 10% of the purchase price be paid upon signing of the sale agreement.

Both the buyer and seller will be required to provide the following documents;

1. National Identity Card/Passport

2. Personal Identification Certificate (PIN)

3. 3 copies of photographs

Transfer process

Once stamp duty has been paid, the transfer documents are lodged with the Registrar of Lands. The Registry will process the transfer and the registration process will be complete upon entry and change of ownership of the title.

Duration

A land transfer process currently may take upto Four (4) to six (6) months due to the delays at the Registry. There is currently a digitization process that is taking place that may make the process shorter.

Legal fees associated with the transfer of property in Kenya

Legal Fees are regulated in Kenya and the fee charged is based on the Remuneration Order.

Types of Companies/Company Law/Commercial Transaction/

1.0 Limited Companies ( Section 5)

• a company is a limited company if it is a company limited by shares or by guarantee

1.1 Companies limited by shares (Section 6)

• liability of its members is limited by the company's articles to any amount unpaid on the shares held by the members

• the liability of the members of an existing company is taken to be limited by the company's articles to any amount unpaid on the shares held by the members if a condition of the memorandum of association of the company stating that the liability of the members is limited is regarded as a provision of the articles by virtue of section 70 (Conversion of a private company to a public company)

1.2 Companies limited by guarantee (Section 7)

• a company is a company limited by guarantee if—

• it does not have a share capital;

• the liability of its members is limited by the company's articles to the amount that the members undertake, by those articles, to contribute to the assets of the company in the event of its liquidation; and

• its certificate of incorporate states that it is a company limited by guarantee


• A company limited by guarantee can have a share capital if it was formed and registered before the commencement of this section.

2.0 Unlimited Companies (Section 8)

• a company is an unlimited company if—

• (a)there is no limit on the liability of its members; and

• (b)its certificate of incorporation states that the liability of its members is unlimited

Additional information about unlimited companies

- No limit on the liability of its members (Liability of members not restricted to share capital)

- Must have at least two members (otherwise, there is no distinction from sole proprietorship)

- Once registered the company must have ‘unlimited’ in all its communications

Unlimited company is began when there is no start-up capital and there is need to assure the investors

A wholly owned subsidiary of a strong subsidiary can afford not to have share capital because if liability arises, there is guarantee from the holding company that they will assume liability

BUT it’s not a common form of company therefore not easy to attract funding for unlimited companies

Erodes the core benefit of companies as entities which is to restrict the liability of the members from that of the company

3.0 Private Companies (Section 9)

• a company is a private company if—

• (a)its articles—

• (i)restrict a member's right to transfer shares;

• (ii)limit the number of members to fifty; and

• (iii)prohibit invitations to the public to subscribe for shares or debentures of the company;

• (b)it is not a company limited by guarantee; and

• (c) its certificate of incorporation states that it is a private company

• two or more persons who hold shares in a company jointly are taken to be a single member.


Additional characteristics

- It can have a minimum of one person

- Can have one director

- Doesn’t have to have a company secretary

- Must have share capital

- Must in all stationery/correspondence the words ltd.

Core rationale- to maintain control of shareholding and active decision-making

BUT a private limited liability company has a limitation of attracting capital from a wide source of ranges


4.0 Public Companies ( Section 10)

• a company is a public company if—

• (a)its articles allow its members the right to transfer their shares in the company;

• (b)its articles do not prohibit invitations to the public to subscribe for shares or debentures of the company; and

• (c)its certificate of incorporation states that it is a public company

Additional information

- Must have a company secretary

- Must have at least two members

- Must have at least two directors

- Must have share capital

- In all its stationery/correspondence must have the word plc.

Can float shares to the public thus being able to raise more capital. The shares are easily transferable and have fewer restrictions

A public company has enhanced compliance and supervisory regime- must make financial returns and reports public, must have CS

A public company has a market for its shares whereas a private co does not.

BUT it is expensive and complex to run; decision making is curbed and is costly, time-consuming and complex (must send notices 21 days before making decisions)


You can’t restrict who comes in thus leading to less control. This can be mitigated by limiting the number of shares that can be transferred.

CONSTITUTIONAL LAW II - LAW NOTES

SUBJECT: CONSTITUTIONAL LAW II

LESSON 1

THE LEGISLATURE 

Nature and Meaning

Legislative bodies are representative organs expressing the will of the people as the sovereign. They form an integral component of any constitutional government.

Legislative bodies are anchors of the peoples’ will which is transferred into the will of the State through law and policy. Once the State legislates, it expresses the sovereign will of its citizens through such law.

These bodies are refereed to using different terminologies across various jurisdictions. In the British tradition, it is called Parliament. In other jurisdictions, they are referred to as Congress or simply the Assembly. 

By whatever name they are called, the main function of legislative bodies is to legislate or make law. This is either by enacting new laws or amending existing ones. Hence the organs are generally also called the Legislature. 

Apart from lawmaking, legislative arms of government perform other functions. These include oversight. For example, the Kenyan Legislature is mandated to oversight other arms of government in respect of their expenditure of public finances. The various functions of the legislature shall be examined shortly.

Types of Parliamentary Systems

Unicameral or Bicameral

This relates to the structure of Parliament at national level. The structure may provide for a single or two chambers Parliament.

A centralized government often adopts a single chamber Parliament. On the other hand federal or quasi federal systems of government usually adopt a two-chamber Parliament. The essence here is to have Senate addressing the legislative agenda for the county units.

Centralized or De-centralized 

Parliaments are often designed along the system of government that is adopted by a country. Where we have a centralized government, the country will have a centralized Parliament. In this sense, Parliament is not devolved. An example of this form of Parliament is the Parliament Kenya had prior to the 2010 Constitution.

Where we have a federal or semi federal system of government, the powers of the legislature are spread to sub-state level legislatures. These legislatures are empowered to legislate for their respective regions. For instance, under Article 185(2) of the Constitution 2010, the county assemblies are empowered to legislate in respect of matters touching on their areas of influence.

Parliamentary or Presidential Executives

A country may adopt a Presidential or Parliamentary Executives system of government as a matter of constitutional design. The former is referred to as a presidential system of government whilst the latter is a Parliamentary system of government.

A Presidential system of government is one in which the executive branch exists outside Parliament. Members of the executive are not derived from the legislature and the President is directly elected by the people without the need for electing him as a member of the legislature.

In a presidential system Parliament is distinct from the Executive. Therefore, the President does not propose bills for passage by Parliament. However, he/she retains power to veto laws formulated by Parliament and require revision of them before his/her assent is given. This power notwithstanding, the legislature has power, exploiting the supermajority principle, to override the veto.

In Kenya, the Constitution creates a presidential system of government in which both the President and the cabinet are not members of Parliament. This draws a clear severance of the linkages between Parliament and the Executive.

Conversely a parliamentary system of government the head of government and cabinet are also members of the legislature. The president, even when directly elected by the electorate, is both in the legislature and the executive. The president as well appoints his cabinet from among members of the legislature. An example of this is the arrangement of government under the 1969 Constitution of Kenya.

In other jurisdiction, the legislature actually elects the head of government. A typical example here is Britain. This type of government allows for some fusion between the executive and the legislature.

The Concept of Sovereignty of Parliament

The concept of sovereignty of Parliament is usually associated with the British constitutional tradition. Underlining it is the theory of monopoly of Parliament in the law making process. It underscores the fact that the repository of legislative power is Parliament and once it makes laws, they must be unconditionally upheld by the other organs of government.

Also referred to as parliamentary supremacy, the notion of parliamentary sovereignty is associated with the British tradition because of its absence of a written constitution. This assertion may however be misleading. The accurate position is that Britain’s constitution is contained in a series of statutory provisions and traditions. It is therefore perhaps right to think of it as written albeit in various instruments. This notwithstanding, the general and popular description is that Britain has an unwritten constitution.

The critical thing is that in this tradition, there is no law that proclaims its supremacy over the institution called Parliament. Therefore, as a legislative organ, Parliament makes laws which bind all other organs of government. No other institution, including courts of law, can question the validity of the laws as passed by parliament.

This is contradistinguished with states which have written constitutions that establish all organs of government including parliament. In effect, where the constitution does this, it allocates and constrains the power of these state organs. The constitution then becomes sovereign and supreme. All organs, including parliament must exercise their mandate strictly within the confines of the constitution.

Usually, the constitution will provide for invalidation of actions by any state organ that exceeds the powers granted to it. This includes parliament. This power is often conferred on the judiciary. The judiciary will be empowered to review the exercise of functions by all other arms of government and strike down those that are in excess of their mandate. This power is called the power of judicial review. In such case, the doctrine of sovereignty of parliament has no application.

Although Kenya borrowed partially its government design from Britain, one critical departure from the British tradition is the promulgation of a written constitution that establishes organs of government. The constitution also proclaimed itself as supreme. The doctrine of sovereignty of parliament has therefore had no application to Kenya’s constitutional design from independence. 

The concept of sovereignty of the constitution in contradistinction with sovereignty of parliament provides a centre for interplay between the Judiciary and Parliament in terms of the doctrines of separation of powers and checks and balances. By it, the constitution confers on the Judiciary the power of judicial review which mandates it to review and declare invalid any laws which conflict the the constitution. In this way, the Judiciary plays a critical role in controlling the legislative mandate of Parliament.

Major Functions of Parliament

Representation

Parliaments across the world are viewed as people’s representatives. Members of Parliament are appointed or elected to represent various groups and interests. They articulate the needs of their constituents in government. They are therefore considered as the mouthpiece of those on whose behalf they act.

Representation here involves listening to the views of one’s constituents and articulating them on the floor of the House. In this sense, it has been argued that Parliament is perhaps one of the closest and most accessible arms of government to the citizen. This is perhaps correct considering that parliamentary activities are often conducted in open plenary where citizens and the media have full access.

In relation to the Kenyan Parliament, several provisions underpin its representative nature. These are:-  

Article 94(2) of the Constitution which proclaims Parliament as representing the will of the people and exercising their sovereign power.

Article 95(1) of the Constitution which declares the role of the National Assembly as one of representation of the people of the constituencies and special interests in the House. Article 95(2) of the Constitution vests the National Assembly with the mandate to deliberate on and resolve

Article 96(1) which declares Senate as representative of the Counties and as serving and protecting the interest their governments.

Legislation

The Legislature’s other major function is to make law to govern society. Lawmaking process is usually in the form of creation of legal norms. It includes passing of new laws and as well amending existing ones. In law making, an idea of law is worked through various stages towards transforming it into a piece of legislation.

Law making is usually a rigorous process. It seeks to give norms the force of law that enables their enforcement by other institutions of government. The process is undertaken first preparing a bill. The bill is then scrutinized before being adopted and published into law.

The primary position in law is that legislative power vests exclusively in Parliament. However, the law recognizes that Parliament may delegate this power to other organs of government. Where this is done, article 94(6) requires that the limits of the authority be clearly defined.

Article 94(1) of the Constitution of Kenya vests legislative power in Parliament. In addition Parliament has some limited powers to review and amend sections of the Constitution by virtue of article 94(3) of the Constitution.

Article 95(3) of the Constitution empowers the National Assembly to enact laws in accordance with the provisions of the Constitution. By virtue of Article 96 (2) of the Constitution, Senate is also empowered to pass legislation touching on county governments in consultation with the National Assembly.

The legislative mandate of Parliament provides one of the critical areas for interplay between the Executive and the Legislature. In a sense, it pays homage to the twin theory of separation of powers and checks and balances. While, the core function of the Executive is to make and implement policies in the public realm, implementation of these policies must be backed by laws. And it falls on the Legislature to make these laws. In a sense therefore, the Legislature plays a critical role in checking the mandate of the Executive by designing laws that will guide implementation of policies by the latter.

Oversight

In addition to the foregoing functions, Legislatures also play the critical role of overseeing the execution of functions and expenditure of the other government organs. Oversight is a critical devise through which Parliament exercises its mandate of checks and balances over other organs of government. Through this, Parliament is able to ensure functions of other government organs are executed in the manner provided for by law.

Article 94(4) of the Constitution empowers Parliament to protect the Constitution and promote democratic governance of the Republic. Under article 10 of the Constitution, one of the national values is to ensure accountability. Parliament ensures protection of this constitutional value through its oversight role.

Article 95(4) and (5) the National Assembly plays a critical oversight role on national finances and reviews the conduct in office of the President, the Deputy President and other state officers. The National Assembly has power to initiate removal from office of these officers.

Similarly Senate is empowered under Article 96(3) to exercise oversight over national revenue allocated to county governments. And under Article 96(4) it participates in the oversight of state officers including participating in decisions touching on the removal of the President and his deputy.

Other Functions

Promotion of democratic governance

 This is through ensuring expansion and protection of the democratic space in the country. This can be done through discharging the other functions discussed earlier. For instance, Parliament is by virtue of article 100 of the Constitution required to pass legislation that will facilitate inclusion of marginalized groups into governance structures in the country. In this way Parliament uses its legislative mandate to promote democratic governance in Kenya. 

Appropriation of Public Funds for Expenditure

This is essentially the budgetary approval process. This power is provided for under Article 95(4) of the Constitution. Under the Article, the power lies with the National Assembly to allocate public funds for expenditure between the two levels of government and as well other state organs. It does appear that residual budgetary powers also lie with the Senate in respect of expenditure by devolved governments by virtue of Article 96(3) of the Constitution.

The budgetary process results in authorization of expenditure of public resources by state organs to meet public objects. This is another area where the Legislature plays its central role of checking and balancing the exercise of power by the Executive. Approvals for expenditure come in the form of the Appropriation Acts and approval of taxations to raise funds comes in the form of the Finance Acts. The fact that parliament must sanction these processes is critical in checking the exercise of Executive power in this respect.

Approval of Declarations of War and States of Emergency

This is a power reserved for the National Assembly. Whilst the President declares war and a state of emergency, this can only be validated by approval of the National Assembly. In a sense, this power to the National Assembly is also mean to check the exercise of executive powers in this regard. 

HISTORY OF THE LEGISLATURE IN KENYA

Pre-Independence

The institution of the Legislature first comes into the history of Kenya through the East Africa Order in Council of 1906 which made provision for the establishment of two critical governance institutions: the Executive Council and the Legislative Council. Even then, the Legislative Council was purely for reasons of advancing the interest of the settler community who had demanded for a body through which they could raise their grievances. Indeed, there was no representation of Africans in the Council until 1944.

The core functions of the Council were to make laws and provide representation. Even then, the Legislative Council was still severely constrained in its mandate. First, the British government reserved powers to make laws for the colony. Second, the Governor General retained substantial control over the Council. The Governor served as the leader of the Legislative Council with the speaker serving as his principal assistant.

The structure of the Legislative Council remained relatively the same throughout the colonial period with minor changes to it mainly geared to enlarging representation of non-Europeans in the body. However, as the country neared self rule, substantial changes to the structure of the Legislative Council were made. It was redesigned along the Westminster style of Parliament. The incoming independence constitution provided for:-

A national legislature with two houses: Senate as the upper house and the House of Representatives as the lower house.

Regional assemblies popularly referred to as majimbos. 

Members of the Legislature were to be selected through a popular election by the electorate. The Governor would then appoint a Prime Minister from the Legislative Assembly. This was the leader of the majority. The Governor would also appoint his Ministers from members of the party from which the Prime Minister had been appointed. Together, the Prime Minister and Ministers would constitute the Cabinet which was collectively responsible to the Legislature.

 

The largest losing party in the Legislature will then take on the position of the official opposition with the mandate to form the shadow Cabinet. Their role in Parliament was to keep the government of the day on its toes with the hope of displacing it but only through constitutional means. 

The Kenyan Parliament 1963-2010

Dual Westminster Model Legislature

On attaining its independence, Kenya embraced an entirely representative legislative body. The independence Constitution created a two-tier national legislature with the Senate as the upper house and the House of Representatives as the lower house. 

The two houses shared legislative power at national level. While the Senate’s main role was to protect regional governments from undue interference by the central government, the House of Representatives focused on national legislation that applied across the regions.

Importantly, the majimbo system of government also created regional assemblies. These assemblies had legislative and oversight powers for the regions they served.

Unitary Legislature

However, several constitutional amendments gradually weakened and eventually scrapped this system of government. First, the regional governments were deprived of sufficient funds to run their agenda. Eventually, through the 1966 constitutional amendment, Senate was scrapped and its members moved to the National Assembly. As a consequence, by 1967 Kenya’s Parliament effectively converted from a bicameral to a unicameral Parliament.

This system of Parliament was to remain in place until the promulgation of the Constitution of Kenya 2010. They system essentially embraced a parliamentary system of government.

The system has been heavily criticized as having resulted in a weak Parliament which was effectively controlled by the Executive. As a result it has been observed that the legislature was most of the time, a mere rubber stamp of the Executive.

The Legislature Post 2010

The Constitution of Kenya brings with it an entirely new system of government with a new design of Legislature. The Constitution creates a devolved system of government with a total of 47 counties. Each of the counties has a county executive and legislature. This system of government is entrenched under chapter 11 of the Constitution. Like the independence Constitution, the 2010 Constitution allocates considerable legislative and executive powers to the county assemblies and executives respectively within their jurisdictions.

At national level and by dint of Article 93(1), the Constitution creates a bicameral Parliament with two houses; the Senate and the National Assembly. By Article 94, the Legislature is vested with the people’s sovereign power to legislate. 

The National Assembly

It is comprised of 349 legislators and a speaker as an ex-officio member. Of this, 290 are elected on single member constituency basis. 47 are elected as county women representatives, each county constituting a single electoral constituency for this purpose. Finally, 12 other persons are nominated to serve special interest groups.

The National Assembly has various roles as discussed earlier in this lesson. These include:-

Representing people of the constituency and special interest groups on the floor of the house.

Deliberating and resolving issues that are of concern to the people.

Enacting legislation.

Budgetary process.

Oversight of other government organs including the President and his deputy.

Approval of declarations of war and states of emergency.

Senate

This consists of 68 members. 47 are directly elected from each of the 47 counties as single constituencies. 16 are women representatives nominated by political parties. 2 members represent the youth and 2 others represent persons with disabilities. The speaker is an ex-officio member.

The role of Senate includes:-

Representation and protection of the interests of counties.

Law making with focus on county laws.

Allocation of national revenue to county governments.

Oversight of county governments.

Oversight in respect of other state officers including the President and his/her deputy.

Qualification for Election as Member of Parliament and their Removal from Office

These are set out in the Constitution. Students are asked to acquaint themselves with the requirements. The point to take home here is that removal of Parliamentarians, whether through fresh elections or the right of recall, is an important tool to promote accountability in the legislature.

Law Making Process

This is undertaken through the passage of bills into law. The National Assembly can originate any bill for debate. These include bills proposing national laws and laws that will affect county governments. 

Bills relating to county governments may however originate from either of the houses. They must then be debated and approved by both houses. There is however an exception in relation to money bills. All such bills must originate from the National Assembly, whether they affect county governments or not.

Bills on laws that do not touch on county government cannot be originated by Senate. They are exclusively generated by the National Assembly.

For bills that are to be debated by both houses, the bill is first debated by the house originating it. If passed, the speaker of the originating house then forwards it to the other house for debate. If passed without changes, the bill is returned to the speaker of the originating house who then passes it onto the President for assent within the prescribed time.

Where one house passes a bill but the other house rejects it, the bill is send to a mediation committee. Similar consideration attends a bill which is amended by one house and the amendments are declined by the originating house.

Presidential Assent

Bills approved by Parliament go to the President for assent. The President has 14 days to assent to the bill or return it to the house that originated it for re-evaluation.

Once returned the house has three options: it may revise the bill as recommended by the President and return it for assent; it may incorporate some but not all the corrections proposed by the President and resubmit the bill for assent; it may reject the recommendations for change entirely and resubmit the bill for assent. In the latter two scenarios, the decision of the house must be supported by two thirds of its members.

When returned, the President has 7 days to assent to and sign a bill into law. If he neglects to do so within the stipulated period of the bill being send back to him, it automatically becomes law.

Once assented to or deemed as assented to, the bill is published in the Kenya gazette as an Act of Parliament. It becomes law within 14 days of publication.

County Legislatures

These are part of the devolved government system under the constitution of Kenya 2010. Kenya has 47 County Assemblies that are distinct from one another. They are comprised of ward representatives also called Members of County Assembly (MCA’s) and the County Speaker as an -officio member. MCA’s are elected by registered voters at ward level. The County Assemblies also have special seats to bridge the two thirds gender, youth and persons with disabilities requirements.

Major Roles of County Assemblies

Law making

The Assemblies make laws at county level. The laws are to facilitate the proper functioning of the County Governments. These laws must not conflict with national laws.

Vetting of County Officials

The Assemblies vet nominees to county offices. These include members of the County Service Boards, county executive, county chief officers and the speaker.

Oversight

This is a critical function of the county assemblies. They oversight the county executive and as well other county departments and officers.

Budget Making

County Assemblies are involved in the making and approval of county budgets. By virtue of article 207 of the constitution, county assemblies must approve withdrawal and expenditure of funds by the county government.

Approval of County Borrowing

County Assemblies also approve borrowings by county governments. This is in addition to the guarantee for such borrowing by the national government.

LEGAL RESEARCH AND WRITING/LEGAL RESEARCH METHODS - General Revision Notes

  Introduction

We all encounter research in our daily lives as it may often involve a host of routine and mundane tasks. Booking a bus journey, choosing a university course, trying to find the perfect meal – these are all examples of research in everyday life. In the technical sense, research entails the systematic investigation geared towards increasing the human knowledge and a process of identifying and investigating a phenomenon with a view to acquiring an insight into it or finding an apt solution therefore.

In the legal realm, research in its broadest sense, includes every step of a course of action that begins with an analysis of the facts of a problem and concludes with the application and communication of the results of the investigation. It encapsulates the whole process of going to court with respect to a given case, starting from when an advocate is briefed by the client, through to when the cause of action is identified, to the preparation of your client’s case, up to when judgment is finally delivered in the case. Legal research is integral to the practice of law since it is impossible for any lawyer to know every law and court case off hand. Therefore, it is imperative that a lawyer, judge and even legal student know how to conduct effective legal research to succeed in whatever legal quest he/she embarks upon.

Etymologically the term research is derived from a French word ‘recherche’ meaning to search. Legal research is the process of identifying and retrieving the law-related information necessary to support legal decision-making. According to the Black’s Law Dictionary the term legal research refers to the finding and assembling of authorities that bear on a question of law.

Categories of Legal Research

Legal research may be categorized as encompassing:

Doctrinal research — Research which provides a systematic exposition of the rules governing a particular legal category, analyses the relationship between rules, explain areas of difficulty and, perhaps, predicts future developments.

Reform-oriented research — Research which intensively evaluates the adequacy of existing rules and which recommends changes to any rules found wanting.

Theoretical research — Research which fosters a more complete understanding of the conceptual bases of legal principles and of the combined effects of a range of rules and procedures that touch on a particular area of activity.

Fundamental research — Research designed to secure a deeper understanding of law as a social phenomenon, including research on the historical, philosophical, linguistic, economic, social or political implications of law.

Legal Research Process

Legal research is as much an art as it is a science. At times, it benefits from serendipity almost as much as from strategy. There are numerous ways to approach a legal problem or question. Methods vary according to the nature of the problem and depend on the researcher’s subject expertise and research skills. Whatever the method chosen to address a given problem, however, the researcher should be open to using creative approaches and exploring new theories and areas of law in addition to using proven strategies throughout the research process.

Approaches to Legal Research

The problem-based research methodology is commonly used by legal practitioners and students. This approach is directed to solving a specific legal problem and normally includes the following steps:

Assembling relevant facts,

Identifying the legal issues,

Analysing the issues with a view to searching for the law,

Reading background material (including legal dictionaries, legal encyclopedias, textbooks, law reform and policy papers, loose leaf services, journal articles),

Locating primary material (including legislation, delegated legislation and case law,

Synthesising all the issues in context,

Coming to a tentative conclusion.

The core research methodology used by the practitioner is also used by the judicial officers in adjudicating disputes. However, the degree of complexity evidenced in a judge’s decision demonstrates another level of research work. The judge, in determining a case and handing down a decision between opposing parties in the court, is writing not only for the parties and their counsel, but also for a more general audience. The judge’s decision needs to be justified and fully explained. The theoretical stance of the judge towards the judicial role, and the approach the judge brings to the reasoning in the case arguably also affects the formulation of the decision.

In relation to academic research, the research methodology is not always predicated on a specific legal problem or directed to locating one answer or conclusion. Academic researchers choose both the topic and the breadth and depth of investigation. The method is similar to that being used by the practitioner or the judge, except that the academic researcher is not constrained by the imperative to find a concrete answer for a client.

Equally widely used is the technique is process of analogical reasoning. In contrast to deductive reasoning, which entails reasoning from a general rule to a specific case, analogy involves a process of reasoning from one specific case to another specific case. In certain situations it is unclear whether a particular factual situation falls within the ambit of a rule, it can often be helpful to examine apparently similar cases which have previously come before the courts. If, upon examination, the facts of these cases are found to be sufficiently similar to the facts of the material case then it can be concluded that the facts of the material case should be treated by the courts in the same way. An example of this technique is the operation of the common law doctrine of precedent.

A third technique involves the use of inductive reasoning which can be described as the reasoning from specific cases to a general rule. It is especially useful when a particular factual situation does not appear to be addressed directly by a legal rule at all and it therefore becomes necessary to ‘fill the gap’ in the law. As with inductive reasoning in the sciences a general proposition can sometimes be derived from a number of specific instances. In the case of legal reasoning this involves the recognition of a new general rule which emerges from a number of earlier authorities which are then regarded simply as particular instances of the new rule. Donoghue v Stevenson (1932) AC 562 is the best-known example of this technique.

IDENTIFICATION OF RESOURCE MATERIALS

Integral to legal research is the ability to find and process research literature from a variety of sources effectively and effectively. This calls for the exercise of good judgment in obtaining and evaluating sources. The material should satisfy the following criteria; relevance, recency, reliability, authority, coverage and accuracy.

Types of Sources

There are three different types of sources: Primary, Secondary, and Tertiary.  When doing legal research you will be using mostly primary and secondary sources.

Primary Sources

A primary source is original material on which other research can be based. In the context of legal research a primary source reproduces the actual text of the law. Primary sources include constitution, statutes (national and county), international law, case law, executive orders, proclamations, regulations and rules.

Secondary Sources

Secondary sources are materials that describe, discuss, interpret, analyse, evaluate and summarise primary sources. Secondary sources play an important role in research. They provide background information in case one is unfamiliar with an area of law. Secondary sources of law include law review articles, treatises, restatements, hornbooks, practice manuals, legal encyclopedias, legal textbooks and legal summaries.

Tertiary Sources

The final type of legal research material is the finding tool. These research aids would never be cited in a court brief, law review article or legal memorandum, but are, nonetheless, critical to anyone updating or searching for primary and secondary sources. Kenya Law Report is an example of a finding and indexing tool for Kenyan case law. 

Each type of source described above has a distinctive place in the hierarchy of legal authority. An authority may be mandatory or persuasive. Indeed, while courts and other decision makers are often open to guidance from a wide range of sources, only primary authority can be mandatory in application (which means that the court decision, statute, or regulation must be followed). However, some primary authority is only persuasive. Persuasive authority is that which the court or other decision maker may consider but is not obligated to follow.

ANALYSIS

Analysis entails the breaking down of information into its component parts and identifying the relationship of each part to the whole. It focuses on the ‘how’ and ‘why’ of an issue or topic. Analysis encompasses;

breaking down information into its component parts and identifying the relationship of each part to the whole

seeing patterns in the information

identifying the component aspects of a topic 

recognizing and explaining relationships 

comparing and contrasting aspects of topics 

recognizing implicit meanings (e.g. assumptions, values) 

recognizing the structure of a text or of information 

devising categories 

Cue words: analyse, separate, order, explain, connect, classify, arrange, divide, compare, select, explain, infer, and contrast.

Legal analysis encompasses the identification of relevant issues and the application of legal rules and/or applicable policies to a given set of relevant facts with the aim of determining a legal question or problem. Types of legal analysis include;

Rule-based analysis reaches an answer by establishing and applying a rule of law.

Reasoning by analogy/ precedent analysis reaches an answer by showing direct similarities between the governing casa law and the client’s fact. When reasoning by analogy you draw parallels between your factual situation and cases that have already been decided.

Textual analysis reaches an answer by focusing on the exact language of the law.

Policy based reasoning reaches the answer by analysing which outcome would be the best for the society.

Traditional reasoning reaches an answer by telling a story that calls forth that result. For example the application of customary law which reflects the customs and traditions of the community.

Critical Thinking

Broadly, critical thinking is the art of analysing and evaluating thinking with the view to improving it. The process requires recognition of assumptions that one holds influencing the way they think and engage with the world. Once identified and brought forth to the surface, the assumptions are evaluated against a range of different criteria such as practicality, ethics, bias and logic. If the assumption cannot withstand scrutiny, it is should be discarded and one should re-evaluate their position.

In the legal context, critical thinking has both immanent and extrinsic qualities. That is, it can be pursued both within the teaching of legal doctrines and from a position of external evaluation. An immanent analysis recognizes that the accuracy and validity of the assumption in law is inherent in critical analysis of legal reasoning itself. A common inquiry here is whether we accept that there is an underlying corpus juris of legal principle waiting to be uncovered through legal techniques, or whether morality, politics and personal choice play a larger part in legal reasoning. An immanent approach to evaluating assumptions in law requires understanding the orthodoxy of legal reasoning and analysis, and also being able to assess the validity of the assumptions on which it is based and understanding different methods of legal interpretation. It may also involve instruction in legal critique, the practical workings of the law and advocacy for law reform.

Another strategy for unpacking assumptions is achieved through introducing a range of extrinsic perspectives on the law and legal processes. An example includes thinking about law as a social, cultural, economic, historical, and political phenomenon. These perspectives on the law require an introduction to core critiques of law as a social and political phenomenon, such as feminist critiques, legal realism and critical legal studies, critical race theory, and postmodern theories of law. There is thinking about law in society - as a mechanism for justice through democracy and human rights, or as a means of oppression, through protecting vested interests and entrenching class privilege. All these perspectives assist in developing the ability to analyse and critique substantive rules and legal processes, and engaging in processes of law reform and policy formation.

Lawyers should generate and evaluate options and also understand those options. Critical thinking is also about looking for similar situations as in looking at precedents and how similar issues are decided. It is imperative to have objective criteria and always question the credibility and authenticity of information while avoiding group think.

INTERPRETATION

Legal interpretation is the process or activity of using legal materials to ascertain what the law is, or, more precisely, to ascertain legal obligations, powers, rights, privileges, and so on. For example, lawyers and judges interpret statutes, regulations, contracts, and wills to determine what legal obligations there are.

Primary Rules of Interpretation

Literal Rule

If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense.

Golden Rule

The golden rule construe a statute or a legal material by departing from the literal meaning of the words if to do would avoid consequences which are absurd.

Teleological Interpretation

It looks to the purpose or overall scheme of the legal material.

Mischief Rule

The mischief rule attempts to determine mischief or defect that the statute in question seeks to remedy and adopt the interpretation that would effectively implement the remedy.

Legal Argument

An argument is a statement or set of statements used in order to persuade people about a particular opinion. 

Types of legal arguments include;

Text argument which focuses on the text of the Constitution, statute and regulations as opposed to judicial opinion.

Legislative history and drafter’s intent argument which argues that the text of a rule means what its drafter’s meant. 

Precedent argument where the text of a rule means what the courts in their precedents have decided it means.

Tradition argument where the rules have a meaning that is the traditional way members of the society have acted in the past.

Policy argument where the meaning of the rule should conform to the underlying values and interests that the rule is designed to serve.

The Writing Process

Having conducted legal research one needs to communicate your solution to the client, supervisor, or judge. Much of this communication occurs in writing. Attorneys in law firms, government offices, and public interest organizations write office memoranda, client letters, court briefs, contracts, leases, wills, and many other documents. Lawyers working in the legislature draft bills and analyze proposed legislation. Judges and their law clerks write court opinions. Becoming a successful lawyer means becoming a professional writer. 

Just as legal research is a process, legal writing is a process. Your writing will improve when you pay attention to the process of how you write, rather than focusing just on the final written product. 

Words are the dominant tool of trade for lawyers. Nothing of consequence can be done without use of words. The most important skill that marks out a good lawyer is the ability to communicate. Good choice of words + Good piecing together = Effective communication. There is no difference between spoken word skills and written word skills; only the context changes. Different words may be used in writing than in speech. Sentence structure may change.

Qualities of Good Writing

Making choices

Everything in final version must be there because you intend it to be.

Nothing should be in it by accident.

What you end up with should be exactly what you want.

Every word used should be there because you have chosen to use it and not any other.

Sentences and paragraphs should be composed as you have designed them.

You can only write well by making choices.

Never simply write down the first thing that comes to mind without critical examination.

Clarity

Good writing = Total clarity.

Meaning should spring instantly from the words.

The purpose of writing is to clarify that which would otherwise be unclear, for example, a legal opinion.

Clarity of expression cannot be achieved without clarity of thought.

If you are not clear in your mind what you want to say, you will not be any better in your writing.

Don’t write anything without first carefully thinking about it.

All writing must be planned and thought through.

Logical structure

Clarity not only depends on choice of words and word order but also on the structure of what is being written.

The whole piece of writing needs to be composed in a clear and coherent manner. This means the structure should be logical.

Whatever one wants to say can be broken into smaller pieces of content.

You cannot make a point without explaining it.

You cannot write an opinion without giving reasons for it. The process needs to be logical.

Therefore, the reasons you give must lead to the conclusion you express.

The reasoning process is a series of small links in a logical chain. Each link must be placed in the right order and connected correctly to the other links.

This involves logical thought, logical explanation and logical structure to what is written.

Writing that has this structure is easy to read, is clear and compelling in its persuasiveness.

Spelling

Good writing should be free from spelling errors.

Spelling errors make you look unprofessional.

Take all reasonable steps to eliminate them.

Of professional importance is to spell names correctly.

Grammar

Writing should be free from grammatical errors.

The rules of grammar dictate word form, word order and sentence structure.

Therefore, verbs must be in correct tense, adverbs in the correct place and sentences properly composed.

If this is not the case, the writing will be obscure.

Writing cannot be clear if it is not grammatical. 

Punctuation

Good writing must be properly punctuated.

Punctuation is crucial to the meaning of a legal document.

Take care to use full stops, commas, semicolons and colons properly and in the right places.

The sense of a sentence can be destroyed by a comma in the wrong place or lack of one where it is needed.

A full stop in the wrong place can spoil the connection between two linked thoughts and result in a sentence with no main verb.

Do not open a bracket and then fail to close it.

Take care of punctuation when drafting.

The choice of punctuation marks is just as important to drafting as is choice of words.

Precision

Everything written should say what the writer intends.

Do not express your thoughts in a vague or generalized way.

Words chosen must be chosen for the precise meaning.

Non-ambiguity

Words may be used which mean precisely what we intend, but which are capable of having another meaning if looked at in a different context. In legal writing, be aware of all the different contexts from which your words may be seen.

Conciseness

Good writing is concise. It should be succinct and straight to the point.

Avoid repetition, long windedness or digression.

Leave out that which is unnecessary or obstructs flow of meaning.

A good piece of writing should not be a word longer than it needs to. Beware of trying to be too concise.

If what you are writing becomes a mere summary, that will not do. Clarity is more important than brevity.

Ideas are at times more concisely expressed in 20 words than in 10.

Completeness

This is the quality that must be balanced with conciseness.

Writing must express the writer’s ideas completely. If it only partially expresses those ideas, it is incomplete. If it does not express the writer’s ideas fully – step by step – it is incomplete.

Where to draw the line between completeness and conciseness is a matter of fine judgment.

Always be aware of the balance that has to be achieved between the two in a good piece of writing. 

Elegance

A good piece must be well written.

Elegant writing comes with practice.

Avoid clumsy phrases, tortuous constructions and jarring words.

Elegance has to do with flow and rhythm.

Shorter Sentences

Long sentences make legal writing hard to understand.

They cause the author to distort the logical order of the information he is trying to convey.

They strain a reader’s memory.

The remedy is, for example, instead of using one long sentence containing five thoughts; use five sentences, each containing one thought.

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Gabrielle Appleby, Peter Burdon & Alexander Reilly, Critical Thinking in Legal Education: Our Journey, 23legal Educ. Rev.345(2013).

Suzanne E. Rowe, Legal Research, Legal Writing, and Legal Analysis: Putting Law School into Practice, 29 Stetson L. Rev. 1193 (2000).

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