KENYATTA UNIVERSITY SCHOOL OF LAW

LPR 104: LEGAL SYSTEMS & METHODS

COURSE INSTRUCTOR: Dr. Musembi Johnpaul Kanya,

EMAIL: [email protected],
MOBILE NO. 0741124789.

COMBINED NOTES FOR THE ENTIRE UNIT

Topic 1.0

1.0 INTRODUCTION TO LAW

1.1 DEFINITION OF LAW, THE CONCEPT OF LAW
AND SOCIETY AND FUNCTIONS OF LAW IN SOCIETY
The purpose of this lesson is to enable you understand,
 We lay the foundation for the entire course by defining
the term law,
 The concept of law and society;
 Functions of law in society.
1.2. WHAT IS LAW?
 A famous Poet W.H. Auden opined that, ‘The law is
The Law’ and we tend to know it when we see it. But it
is a question that philosophers and legal theorists have
expended many pages in trying to answer.
 Prof. H.L.A. Hart (English legal Philosopher) in his
work titled ‘The Concept of Law’ says that “few
questions concerning human society have been asked
with such persistence and answered by serious
thinkers in so many diverse, strange and even
paradoxical ways as the question what is law?
For Hart, there is a difficulty in answering the questions is
because of what he calls ‘the three recurring issues’,
namely,
 The relationship between law and morality.
 The relationship between law and rules.
 The relationship between law and coercive orders.

Thereby Law can be generally defined as the body of rule

designed or formulated to guide human actions or conducts
which are enforced among the members of a given society.
The term ‘LAW’ has further been defined in different ways
by different people. The following are definitions given by
some scholars;
a) John Austin (British Legal Theorist) defines law as - the
body of rules for the guidance of human conduct which is
imposed upon and enforced among the citizens of a given
state.
b) Sir John Salmond (New Zealand Jurist) defines law as – a
set of rules that are used to govern a society which are
backed by sanctions.
c) Friedrich Carl Savigny (German Jurist) states that – law
is the people’s will.

However, in spite of the ambiguity created in defining law

and failure to reach universally acceptable definition of the
term law. Therefore, it is most pertinent to examine the
meaning of law from the different schools. For instance:
 The natural school lead by Thomus Acquina, he sees
law as what is fair, just, right and good.
 The historical school postulate, that law should be
rooted in the people and reflects the common
consciousness.
 To the sociological school, law is the pertinent norm
and value in the society
 Whereas the realist perceive law to be made through
the medium of court; and
 Utilitarian’s propounded by Jeremy Bentham see law
as to what promotes utility.
Elements recognized from the definitions include:
 a. Law is to be imposed upon - laws are imposed from
above, by an authority that has reserved itself the right
to make laws (sovereign body). In Kenya the parliament
is the sovereign body
b. Law is to be enforced among - for law to be obeyed it
must be enforced hence need to have some sort of
police authority.
c. Law is for citizens of a given state - laws must apply
within a specific state which must be sovereign with
some law-making powers

Therefore, it can be conclusive ascertain that law can be

defined as the body of rules and regulations put in place by
a legislative body to govern the conduct of people and
breach of which leads to sanctions.
Further it can be simply stated that, ‘Law’ can be defined as
a set of rules which we are bound to obey (i.e. those rules
which are enforced by the State). Failure to obey laws
would result in us having to face certain repercussions. Like
legal rules there are social rules as well. Society may be
governed by social rules as well. It goes without saying that
the two types of rules are clearly distinct from each other.
Social rules could include ‘proper’ behavior or etiquette.
Killing a human being is both wrong legally and socially. It
is hard to say which social rule should receive the force of
law and which should not. You are likely to be fined for
failure to wear a helmet while travelling on a motorbike. But
it might not be frowned upon as being socially unacceptable
to not wear a helmet. How a social rule becomes law may
depend on the society you live in. i.e. religion, ethnicity,
culture, tradition etc.

1.2.1 SOME PRINCIPLED APPROACHES IN DEFINING

LAW
1. Law and official authority – Donald Black (law and
society scholar) views law as a social control by
government. Social control being regulations of actions
of individuals and organizations, through public
institutions like police, courts and revenue authorities.
2. Law in Action – Influential Supreme Court Justice
Oliver Wendell Holmes offers a definition that focuses
on law “in action” rather than on “the statute books”.
He centres his definition on law on an official
government institution although he limits his focus to
the courts. He is quoted as saying, “a bad man”
calculating how to act would want to know how a court
would rule and have little interest on the statutes
written.
3. Law and Justice – philiph Selznick and adherents of
sociological school of law argue that the definition of
law must include justice or a moral component.
 4. Law and Custom – legal anthropologist Paul
Bohannan views law as based on customs which are
the behaviours of a society.

1.2.2 IMPORTANCE OF LAW

a) Maintenance of public order and safety (protection from
anarchy)
b) Protection of Individual rights and liberties (equality
principles)
c) The organisation and control of political sphere (hate
speech, Communal violence etc)
d) The regulation of economic activities (trade, patents,
copyrights)
e) The regulation of human relationships (marriage, family
property, wealth and child relationship)
f) The preservation of moral order (some moral are given
the force of law)
g) The regulation of International relations (diplomacy and
international humanitarian laws)

1.3 LAW AND SOCIETY, FUNCTION OF LAW IN

SOCIETY
Law and Society emerges from the belief that legal
regulations and decisions must be understood in its context.
 Both law and society have common understanding.
  They are never autonomous in their context. In other
words, law is deeply embedded within a society. It
therefore implies that law is socially and historically
constructed to become legally recognized procedures
and institutions and besides that, law needs a society
for its effectiveness and usefulness.
 Law is a guiding principle for the society to ensure
achievement of happiness without bloodshed, peace
and harmony restraining people from getting beyond
guidelines hence breaches set regulations, rules,
policies or norms.
 Any kind of behavior which is accepted as proper by
the society may be defined as social rules and any
behavior regulated by law are legal rules. The
difference between these rules can be identified by
analyzing the consequences of violating these rules.
For example:–
i) Breaking the law will result in
punishment by courts
ii) Violating a social rule will result in only
criticism.

Society is referred to human beings who can be described

as weaker animals who can easily be swayed by the
slightest sight or sniff of materialistic gains like power,
financial, luxuries etc. leading to unwanted acts causing
creation of restrictions.
Some of the functions of law in the society include:-
(a) Defines and regulates all kinds of social
relationships;
(b) Provides institutional setting for the resolution of
disputes between private individuals;

1.4 HART’S CONCEPT OF LAW

Hart believed law is the union of primary rules (rules of

conduct) and secondary rules (empowering rules)

 Primary Rules - are rules, or laws, that govern general

societal conduct. Thus, primary rules construct legal
obligations and consequences when they are
disobeyed. A good example of primary rule is the law
against murder; it prohibits a person from killing and
attaches consequences for committing, attempting to
commit, and conspiring to commit the crime.
 Secondary Rules - confer power to create sovereignty;
they also confer the power to change, modify, or
enforce primary (and secondary) rules. Secondary rules
combat the three major issues of legal systems
that primary rules can't which are:-
 a) Uncertainty of the law,

b) Inefficiency of the law, and

c) Static quality of the law

Each kind of secondary rule addresses a separate one of

those three issues, yet all are interdependent. Hart
separates secondary rules into three types–the rules of
recognition, the rules of change, and the rules of
adjudication.

1.4.1 RULES OF RECOGNITION

Hart states that the remedy for the uncertainty of the

regime of primary rules is a rule of recognition. The rule of
recognition is a collection of standards and requisites that
govern the validity of all rules; thus, the rule of recognition
confers power to new rules by validating them. For a rule to
be valid is to recognize it as passing all the tests provided
by the rule of recognition.

1.4.2 RULES OF CHANGE

There are no legal systems that can be classified as pareto

optimal. The next best thing is to make sure that the system
does not remain at a static quality but instead is dynamic
and progressive. The remedy for the static quality of the
regime in primary rules is the rule of change. Generally,
rules of change confer and prohibit power of the creation,
extinction and alteration of primary and secondary rules.
Rules of change range in complexity: “the powers conferred
may be unrestricted or limited in various ways: and the
rules may, besides specifying the persons who are to
legislate, define in more or less rigid terms the procedure to
be followed in legislation.” As mentioned earlier, rules of
change are interdependent with the other rules.

1.4.3 RULES OF ADJUDICATION

Rules of adjudication were intended to remedy

the inefficiency of its diffused social pressure. Rules of
adjudication empower individuals to make authoritative
determinations of the question whether, on a particular
occasion, a primary rule has been broken. Rules of
adjudication govern the election and procedure of the
judiciary. However, intermingled with who adjudicates is
what laws they adjudicate. Under that logic, rules of
adjudication, like rules of change, must also be
supplemented by rules of recognition of some sort. Thus,
“the rule which confers jurisdiction will also be a rule of
recognition, identifying the primary rules through the
judgments of the courts and these judgments will become a
'source' of law.”

1.5 FUNCTIONS OF LAW

There are four main primary functions of law which
include:-
  Preventing undesirable behaviour and securing
desirable behaviour which is performed in criminal law
and torts;
 Providing facilities for private arrangements between
individuals, which is found in private law, criminal, and
tort law;
 Provisions of services and the redistribution of goods
found in legal systems; and
 Settling unregulated disputes found in courts and
tribunals.

1.6 References
(a) Chapter 1 of An Introduction to Law and Society.
Retrieved from
https://us.sagepub.com/sites/default/files/upmassets/86
864_book_item_86864.pdf
(b) Roland R. Foulke “Definition and Nature of Law”
in Columbia Law Review, Nov., 1919, Vol. 19, No. 5
(Nov., 1919), pp. 351-378. Retrieved from
https://www.jstor.org/stable/pdf/1111032.pdf
(c) Melville M. Bigelow, “Definition of Law” Columbia
Law Review, Jan., 1905, Vol. 5, No. 1 (Jan., 1905), pp.
1-19. Retrieved from
https://www.jstor.org/stable/pdf/1109712.pdf?
ab_segments=0%2Fbasic_SYC-
 5187%2Fcontrol&refreqid=fastlydefault
%3Aa91545a4061e7a639ef9efea60a6f620
(d) Acharya, Suman, Jurisprudence of Law and
Society (March 14, 2019). Available at SSRN:
https://ssrn.com/abstract=3352664
(e) David A. Funk, Major Functions of Law in Modern
Society Featured, 23 Case W. Res. L. Rev. 257 (1972).
Retrieved from
https://scholarlycommons.law.case.edu/caselrev/vol23/i
ss2/3
(f) Dana Burchard, The Functions of Law and their
Challenges: The Differentiated Functionality of
International Law in German Law Journal (2019), 20,
pp. 409–429. Retrieved from
https://doi.org/10.1017/glj.2019.29

QUESTIONS FOR ASSIGNMENT

1. Post two themes that are common in the definition of

law.
2. Using bullet points outline the key elements in the
definitions of law.
3. In a sentence, develop your own definition of law and
save it in a portfolio that can be accessed by your
facilitator if required.
 4. Discuss the relationship of law and society highlighting
some of the functions of law in society.

TOPIC 2.0

2.0 SOURCES OF LAW AND CLASSIFICATIONS

OF LAW
2.1 INTRODUCTION
In this lesson, we discuss the sources of law and
classification of laws. The purpose of this lesson is to enable
you to understand the sources of law and classification of
laws.

2.2 Lesson Learning Outcomes

By the end of this lesson, you will be able to:-
 Examine the sources of law; and
 Discuss classification of laws.

2.3 THE SOURCES OF LAW

The major sources of law as enumerated under Section 3 of
the Judicature Act (Chapter 8 Laws of Kenya), include:-
(a) The constitution
(b) Acts of parliament
(c) International treaties and conventions
(d) Precedents
(e) Customary laws
(f) Religious laws.
These sources are further classified into primary sources of
law and secondary sources of law.
The primary sources are;
1. The constitution of Kenya 2010, and
2. Acts of Parliament
The secondary sources include;
 1. By laws (County laws)
2. Religion
3. African customary laws, and
4. Precedents

2.4 PRIMARY SOURCES OF LAW

2.4.1 THE CONSTITUTION
The Kenyan Constitution was promulgated in August 2010
and has 18 chapters, 264 Articles and 6 schedules. It
possesses some distinct features which include;
 The Constitution is the supreme law of the land having
priority over other laws both written and unwritten.
 Any law that contravenes the Constitution is
considered null and void to the extent of such
contravention.
 It sets out how a nation and its citizens are to be
governed and is basically a social contract between the
people and those at the helm of authority.
 It fosters unity and promotes justice and equality
principles within the nation without discrimination.
 The biggest Chapter in the Constitution of Kenya is
chapter 4 which contains the Bill of Rights which
under Article 20 (1) states that, “the Bill of rights
applies to all law and binds all state organs and all
persons.”
2.4.2 ACTS OF PARLIAMENT
Parliament of Kenya is the official law making body that
focuses on legislations through the Senate and National
Assembly in order to give life to the Constitution by
establishing a legal regime that is just, fair and
reasonable to all. Therefore Acts of parliament too should
exhibit some elements which include;
 They should conform to the letter and spirit of the
Constitution hence, should not contradict the
Constitution but rather support its
operationalisation and implementation.
 Since parliament comprises of individuals who
directly represents the people it is vested with the
authority of making, amending and revoking laws.
 It is assumed that when parliament makes laws the
people are consulted and informed through their
representatives in parliament and hence ignorance
of the law is considered as no defence.
 Some of the many Acts of parliament include:
 Penal code
 Criminal procedure code
 Sexual offenses Act
 Children’s Act
 Judicature Act
  Land Act
 Evidence Act
 Civil Procedure Act

2.4.2.1 PROCEDURE FOR ENACTING A LAW

(LEGISLATIVE PROCESS)
Before a law is enacted and becomes law in Kenya there are
various steps that are taken and they include;
 First reading – this is when a Bill is introduced in the
legislature, assigned a tracking number and
immediately assigned to a committee whose
considerations are between second and third readings.
 Second reading – is the stage of legislative process in
which a draft of the Bill is read a second time, a vote is
taken in the general outlines of the Bill before it is sent
to the designated committee.
 Third reading – the Bill is read with all the
amendments by the designated committee and given a
final approval by the legislative body.
 President assent – this is the formal method by which
the head of the executive completes the legislative
process by formally assenting or giving consent to an
Act of parliament.
  Commencement – after presidential assent notification
of the date of its coming into effect is given through a
legal notice usually by the minister of the matter with
which the Act is concerned.

2.5 SECONDARY SOURCES OF LAW

2.5.1 BY LAWS
 These are laws enacted by other organs of government
such as County Assemblies.
 They are binding within their geographical areas of
jurisdiction and can vary from one county to another.
 They cannot be in contradiction of national laws and
the Constitution.

2.5.2 RELIGIOUS LAWS

 A good number of secular laws that are evident in the
laws of Kenya have their origins in the cannon (church)
laws, for example the law that criminalizes polygamy.
 Further in Kenya, the Khadhis Court strictly imposes
Shariah law on personal matters of marriage, divorce
and inheritance when both parties profess Islam as
their religion.

2.5.3 AFRICAN CUSTOMARY LAWS

 In Kenya African Customary laws are recognised as
sources of law and vary from one community to
another.
 Kenyan Courts are allowed to be guided by customary
laws but only in civil cases and where parties to the
suit are either subject to it or affected by it.
 Further customary laws should not be repugnant to
justice and morality, for example FGM may be
recognised as a certain African customary practice, but
since the practice is outlawed by existing legislation, it
cannot be allowed to continue in the name of
practicing customs and traditions.

2.5.4PRECEDENTS
 They are also known as case laws or authorities
 They exist in two forms that is;
 Authoritative which means they are binding,
such as Supreme Court cases.
 Persuasive which means that they are not
binding but can be adopted if they are
supported by a strong legal argument.
 Decisions made by higher superior Courts are
binding to other lower Courts.
 In situations whereby a Court passes a judgement
on a particular fact of a matter, that part can be
 used later as part of law. Particularly when it is on
an issue whereby no law is directly linked to it.
 Precedents have to be backed by sound legal
arguments.

2.6 INTERNATIONAL TREATIES AND COVENTIONS

 Other than making its own laws, Kenya is a signatory
and has ratified international laws and incorporated
them in its domesticated laws.
 Under Article 2(5) of the Constitution of Kenya, it
states that, “the general rules of International Law
shall form part of the Laws of Kenya.”
 Further Article 2(6) goes ahead and stipulates that,
“any Treaty or Convention ratified by Kenya shall form
part of the Laws of Kenya under this Constitution.”
 Some of the treaties ratified by Kenya include:
 International Covenant on Civil and Political
Rights (ICCPR ratified 1st May 1972)
 International Covenant on Economic, Social and
Cultural Rights (ICESCR ratified 1st May 1972)
 Convention on Elimination of all forms of
Discrimination Against Women (CEDAW ratified
9th March 1984)
 Convention on the Rights of a Child (CRC ratified
31st July 1990)
  The African Convention on Human and Peoples
Rights (ACHPR ratified 10th Feb 1992)
 Convention Against Torture (CAT ratified 21st
February 1997)
 The Rome Statute ( ratified 15th March 2005)

2.7CLASSIFICATION OF LAWS IN KENYA

Kenya laws may be classified in the following manner:-

2.7.1 International and municipal laws

 International law regulates relations between states
while municipal law is the law of a national state.
 Municipal law supports the citizens in their daily
activities and has no extra-territorial effect.

2.7.2 Public Law and Private Law

 Public law is concerned with the enforcement of a code
of conduct upon the citizens while,
 Private law is concerned with the settlement of
disputes between citizens.

2.7.3 Substantive and procedural law

 Bentham propounded substantive and procedural law
a) Substantive law - is the branch of law that defines the
various rights and obligations available to the citizens
 and the state, between individuals etc. i.e. the penal
code.
b) Procedural law is that law that prescribes the
procedure to be followed to enforce one’s rights in a
court of law i.e. the criminal procedure code.
 By procedure it basically means the course taken
for the execution of the laws

2.7.4 Civil and criminal law

 Civil law
 Concerns itself with all law following within the
category of private law such as tort, contract and
property law.
 They are instituted by the individuals.
 It considers matters that are not generally
connected with the well being of all people but of
importance to the parties involved.
 Guilt in civil cases is determined by the balance of
probability, that is to say that if the Courts are
convinced by the evidence produced its more
likely than not the act was committed, then it is
enough to pass judgement against the person or
group.
 Criminal law
  This category of law covers actions that can cause
intentional harm to a person, group or property.
Eg. Killing, Assault, Robbery etc.
 Even though such Acts may target particular
individuals they are considered as acts against
the larger society or all people.
 Covers offences in which an individual can be
charged by the state.
 They attract punishments such as imprisonment,
fines or sentences to community service.
 For one to be charged guilty in a criminal case it
has to be proven that they had the intention to do
it (Mens rea) and the actually did perform the act
(Actus reus).
 Courts are entitled to be convinced beyond
reasonable doubt that the crime took place while
determining criminal cases.

2.8 REFERENCES
(a) Lilian Oduor and Hussein Khalid, Introduction to
Kenyan Law
http://hakiafrica.or.ke/wpcontent/uploads/2019/01/
Introduction-to-Kenyan-Law-Booklet.pdf
(b) Judicature Act Cap 8 Laws of Kenya

http://kenyalaw.org:8181/exist/kenyalex/actview.xql?
actid=CAP.%208
 (c) Constitution of Kenya of Kenya 2010

http://kenyalaw.org:8181/exist/kenyalex/actview.xql?
actid=Const2010
(d) Nicholas Wasonga Orago, The 2010 Kenyan
Constitution and the hierarchical place of international
law in the Kenyan domestic legal system: A
comparative perspective (Chapter 7 Vol 2) [2013]
AHRLJ 18
http://www.saflii.org/za/journals/AHRLJ/2013/18.html

ASSESSMENT QUESTIONS

1. Discuss the sources of laws in Kenya

2. Describe the classification of laws in Kenya

TOPIC 3.0
LEGAL SYSTEMS
In this lesson, we introduce you to the meaning of legal
system, the major legal systems of the world along with
common law and civil Law and their comparison. The aim of
this lesson is to enable you understand the meaning of legal
system, the major legal systems of the world along with
common law and civil Law and their comparison.

3.0 INTRODUCTION
The term ‘legal system’ can be used very simply to mean
 The sum of legal rules,
 legal institutions and
 Machinery which operate within the particular country
or jurisdiction.
This definition is not necessarily limited to a geographical
jurisdiction, for within any country’s legal system, there will
be certain legal rules, such as rules of international law,
which may originate from outside that country’s
geographical area but which should be viewed as being part
of its legal system.
No society can be presumed to exist without legal system or
normative system.
The notion of ‘system’ appears at first to requires the
uniting- the Greek term ‘systema’ meaning assemblage of a
set of elements.
Legal system is not a notion of recent vintage, it has been a
central preoccupation of jurisprudence for centuries. It is
particular ways of establishing and maintaining social
behavior.
A legal system consists of many things. It is not only social
reflection but also a political and cultural high way that
leads to particular civilization. It also incorporates
 The process of making of law and its operation.
 The combination of economic, politics and social
behavior which establishes and operates unique
system of justice.
 It is also an instrument for distribution or
redistribution of wealth and power in a given society
hence, it is the road map of justice system.
In effect, the legal system describes the law and the
machinery provided for adjudication and implementation
of the law.

3.1 JURISPRUDENTIAL SCHOOLS AND JURISTS

VIEW ON LEGAL SYSTEMS
Legal means nothing more than pertaining to law hence
the notion of legal system means ideas or a belief or an
understanding of legal system. Each legal theory and
individual jurists, lawyer and judges define legal system
in their own approach. Thereby some of the different
approaches include;
 The natural law approach basically believes that a
legal system includes principles of morality, reason,
 fairness, equity, justice, equality, liberty, fraternity,
rule of law , separation of power, check and balance
and similar notion originated and developed by
many jurists at different times as an universal law
for the governance of humanity and to this world.
 Positivist approach viewed legal system as a
system of law which is actually laid down, ‘positum’
through making or enforcement by a competent
authority. It ignores the law that ‘ought to be’,
‘morality’ etc. A legal system is more than the sum
total of laws or legal materials; it represents the
pattern of interrelation of the material and differs
from them also in its overall purpose and
functioning.
 The historical or anthropological approach they
viewed legal system as a system of law based on
tradition, practices, habits, usages and lives of the
people which are the result of past evolution or
spirit of the customary law are regarded as true law
in this approach.
 For the sociological jurist the output of law is
simply what the legal system produces is social
demand i.e. to distribute and maintain an allocation
of values that societies feel to be right. A legal
system in actual operation is a complex organism in
which structure, substance and culture interact.
  Realist approach is the revolts against the
formulation.6 It highlights legal system as a system
of law, advanced by courts i.e. logic and experience
life of judges. There are two movement of thought
under the realism; American and Scandinavian but
they share the desire to introduce a commonsense
approach to problems of and about law.
 Marxist theory; Karl Marx viewed human societies
as systems but more controversial is his view of the
interrelationship of the parts of those systems. Legal
system as the superstructure based on the socio-
economic structure of a society. Marx attached
primacy to economic system. Law and legal system
are the production of the economic system.

3.2 COMMON LAW

Common law is the earliest element of the English legal
system. It is a system of rigid rules laid down by the
Royal Courts following the Norman Conquest of the 11 th
century. The law of the land was created by the judges
who travelled around the country keeping the King’s
peace. By applying the amalgamated local customary law,
a system of legal rules common to the whole country was
created.
3.3 CIVIL LAW
 On the other hand civil law is the oldest surviving legal
system in the world. It has its origin in Roman law and
later developed in continental Europe and around the
world. It is distinct due to its codified nature.
Jurisdictions with civil law systems such as France,
Germany and Japan have comprehensive, continuously
updated legal codes that specify all matters capable of
being brought before a court, the applicable procedure
and the appropriate punishment of for each offence.

3.4 LEGAL FAMILIES; DISTINGUISHING

BETWEEN VARIOUS LEGAL SYSTEMS
The term ‘legal families’ refers to certain consistent
similarities upon which it is possible to group together the
various legal systems in the world into distinguishable
‘traditions’ or ‘families’.
The key features used to distinguish legal systems may be
based on
1. Political and social ideologies (ex :- common law, civil
law/Roman law, socialist law etc.) or
2. Religion (eg :- Islamic legal system).
These families are not rigidly used to separate different
legal systems but rather offer sufficient differences to
distinguish between different legal systems.
The characteristics used to differentiate legal systems
would be:-
• Objectives of the legal system
• Sources of law
• Legal reasoning and methodology
• Structure of pre-court and trial proceedings

3.5 THE HISTORICAL DEVELOPMENT OF THE

COMMON LAW
• The customs of the Anglo-Saxon society can be attributed
to the beginning of the development of English law. Anglo-
Saxons is the term usually used to describe the invading
Germanic tribes in the south and east of Great Britain from
the early 5th century AD, and their creation of the English
nation, to the Norman conquest of 1066. The Anglo-Saxon
period is pre 1066.
• The Anglo-Saxon customs are said to have its roots in the
life of the people and reflect the social structure of that way
of life. The conditions of life during that period were poor
and most of England was covered by dense forest and
majority of the people were illiterate. The law was therefore
local custom which was largely unwritten and understood as
a set of orally transmitted rules. It was a basic set of laws
which directed the prevention of bloodshed by recognising
elementary rights to property and personal freedom and
substituting compensation in place of the rigours of fighting
as revenge for injury.
• Thereafter in 1066 the Norman Conquest took place
where England was invaded by William the conqueror. The
Norman Conquest was said to be “a catastrophe which
determined the whole future of English Law.”
• After the Norman Conquest the customary local laws
gave way to a general law applying to the whole of England
which became known as the common law. All lands were
thereafter held by the crown (i.e. at that time by William)
and individuals would have only a right in the form of a
‘freehold’ to occupy land. It was at this stage that law was
used as a form of administering the Country by the Crown.

3.5.1 RESOLUTION OF DISPUTES UNDER

COMMON LAW
• The King’s Courts became the most important forum for
resolving disputes between the subjects.
• The law developed by the King’s Judges, which is the
common law, replaced the local custom which was accepted
as law during the Anglo-Saxon period.
• The Judges however used general custom established
during the period in coming to their decisions and where
there was no general custom the judges would decide upon
disputes as they thought fit. Either way, a new decision
would form new law.
3.5.2 EQUITY UNDER COMMON LAW
Where the common law could not provide a just decision,
litigants would petition the King seeking justice. The King
would pass those petitions on to the ‘Chancellor’ who dealt
with the petitions. The Chancellor during that time was a
member of the church and was regarded as the conscience
of the King.
This resulted in the creation of a Court of Chancery which
was presided over by the Lord Chancellor himself applying
a set of rules known as ‘equity’ as opposed to recognized
common law principles applied in the King’s Courts. The
Lord Chancellor (Lord High Chancellor, King's Chancellor)
is the occupant of one of the oldest offices of state, dating
back to the Kingdom of England, and older than Parliament
itself.
The Lord Chancellor is the second highest non-royal subject
in precedence (after the Archbishop of Canterbury). In
addition to various ceremonial duties, he is head of the
Ministry of Justice, which was created in May 2007 from the
Department for Constitutional Affairs.

3.5.3 UNIQUE FEATURES OF THE COMMON

LAW SYSTEM
COMMON LAW CIVIL LAW
Inductive form of legal Deductive form of legal
reasoning (i.e. decision reasoning (i.e. decision
made by going through made by going through pre-
various sources of law). existing set of rules).
Court room practice may be Court room practice is
subject to rigid and minimal and uncomplicated.
technical rules.
In litigation trial is the main No rigid separation between
form of dispute resolution. trial and pre-trial stages.
At the conclusion a decision Proceedings are viewed as
is arrived at. an entire series of hearings,
meetings, written
communications during
which evidence is
introduced through
witnesses and documents
Judges do not play a large Judge plays the role of an
role in the trial process or inquisitor. Plays a big role in
get involved in fact finding. fact finding.
The proceedings are Lawyers play a less
controlled by lawyers and conspicuous role with
emphasis is on oral emphasis on written
arguments by counsel. submissions (i.e. written
arguments) rather than oral
arguments.
Greater proportion of the Greater proportion of the
expense falls on the litigants expense is on the state.
3.5.4 ‘ADVERSARIAL’ AND ‘INQUISITORIAL’
PROCEEDINGS
• In a common law system adjudication of disputes is by an
adversarial system. In an adversarial (also known as
‘accusatorial’) trial it is the parties through their lawyers
who will organise the trial.
• The lawyers decide the law on which they would argue
the case. It is they who decide what evidence to call
including witness and documents. It is they who decide
what questions to put to the witnesses.
• The lawyers have total control over the client’s case and
also the process in the court. The judge plays a passive role.
It is his duty to ensure that the trial is conducted in
accordance with established rules or procedure and
evidence and also to deliver his judgment at the end of the
trial.
• In most civil law countries the method of trial is
inquisitorial.
• When a complaint is made by an aggrieved party the state
through a judge will conduct an inquiry.
• It is the judge who will play an active role in the trial and
not the parties. It is the judge who decides on what
evidence to call including the witnesses and what questions
to be asked from the witnesses.
• The rules of admissibility of evidence may also allow the
judge to act more like an inquisitor than an arbiter of
justice. The judge will advise the parties as to how to
proceed.
• For instance, in a criminal case the aim of the judge is not
to prosecute the accused but to gather facts. The
prosecution and defence can only cause a judge to act on
certain facts. At the end of the inquiry the judge will
pronounce his judgment.
• It must be kept in mind that majority of cases in common
law countries are conducted by an adversarial system and
majority of cases in civil law countries are conducted by an
inquisitorial system. This is not to say that common law
countries do not conduct certain proceedings by way of an
inquisitorial system and that civil law countries do not
conduct certain proceedings by way of an adversarial
system.
• The adversarial and inquisitorial systems apply to
‘procedural law’ and not to ‘substantive law’. That is to say
that both systems apply to the manner in which court
proceedings are conducted. This is not to say that legal
rules and principles differ between common law and civil
law systems (i.e. Murder, theft, rape will be crimes in both
common law and civil law countries. They may even carry a
similar penalty. But the manner in which the legal system
conducts the court proceedings in coming to its findings will
differ).

3.6 RELIGIOUS LAW (ISLAMIC LAW, CANON

LAW)
The different emphasis that Islam and Christianity place on
religious law is reflected in contemporary attitudes toward
religious tribunals. In some Western societies, Muslim
organizations have called for Islamic tribunals to resolve
family and commercial disputes among consenting Muslims.
The fact that many Muslims believe that their faith requires
them to resolve family and commercial disputes in Islamic
tribunals, however, demonstrates the importance that
religious law has in contemporary Muslim life.
To be sure, factors beyond internal religious dynamics also
help explain why contemporary Muslims and Christians
value religious law differently.

The Enlightenment has had a secularizing effect on Western

society and made Christianity a more private phenomenon
than it once was. Islam may similarly evolve; indeed, some
argue that the transformation already has begun. And the
desire of some Western Muslims for Islamic tribunals may
reflect an assertion of community identity more than
religious commitment. One should not dismiss internal
religious dynamics, however. Comparatively speaking, law
figures more prominently in the life of Islam than
Christianity, and this difference surely influences how
Muslims and Christians view religious tribunals today.

3.7 THE LEGAL SYSTEMS OF THE MEMBER

STATES OF THE EAST AFRICAN COMMUNITY
In order to understand the scope of EAC law it’s of
importance to first consider its sources, which largely
influences the legal systems. The common sources of law
are;
a) the Constitution
b) parliamentary legislations(statutes)
c) judicial decisions
d) treaties
e) protocols and circulars issued by various policy organs
In the EAC regime the sources of law are;
a) the treaty for establishment of the East African
Community which came into force in 7 th July 2000
following its ratification by Partner States
b) acts of the East African Legislative Assembly
c) decisions of the East African Court of Justice
d) protocols
e) formal directives and decisions of the policy organs of
the community
Within the East African Community framework, the Treaty
is the main source of community law and it outlines the
areas of cooperation on which the partner States of the
community have agreed to cooperate.
Under the Treaty it is agreed that, with a view to
strengthening their cooperation, Partner States are
resolved to adhere to the fundamental and operational
principles that govern the achievement of the objectives set
out in the Treaty as well as the principles of International
law governing relationships between sovereign States.
The relevant provisions of the Treaty include;
 article 5 which covers the objectives of the Community
 article 6 which is about the Fundamental Principles of
the Community
 article 7 on the Operational Principles of the
Community, and
 Article 8 on the general undertaking as to
implementation.
The treaty regulates the power and functions of the organs
and institutions of the community in the same way the
Constitution regulates the affairs of the State.
Article 49(1) of the treaty vests the law making power on
the East African Legislative Assembly whereby it plays its
legislative role by passing Bills and having them assented to
by the Head of States in the summit.
Bills that have been duly passed and assented to are styled
as Acts of the community and published in the East African
Community Gazette.
The East African Court of Justice (EACJ) is the judicial body
of the community whose role under Article 23 of the treaty
is to ensure adherence to the law in the interpretation and
application and compliance with the Treaty.
Under article 36 of the Treaty, the EACJ gives advisory
opinions regarding questions of law arising from the treaty
which affect the community.
Land mark cases decided by the EACJ include;
 Callist Andrew Mwatella & 2 Ors vs EAC
 Attorney General of the Republic of Kenya vs
Independent Medical Unit
 Christopher Mtikila vs the Attorney General of the
Republic of Tanzania and the Secretary general of the
East African Community
 Prof. Peter Anyang’ Nyong’o and Ors vs AG of Kenya
and 5 Ors
 East African Law Society and 4 Ors vs Attorney
General of Kenya and Ors.
The Council of ministers is the policy organ of the
community and makes regulations, issues directives, make
recommendations and give opinions which are binding
among Partner States.

3.7.1 OBJECTIVES OF THE COMMUNITY

1. The objectives of the Community shall be to develop
policies and programmes aimed at widening and deepening
co-operation among the Partner States in political,
economic, social and cultural fields, research and
technology, defence, security and legal and judicial affairs,
for their mutual benefit.
2. The Partner States undertake to establish among
themselves and in accordance with the provisions of this
Treaty, a Customs Union, a Common Market, subsequently
a Monetary Union and ultimately a Political Federation in
order to strengthen and regulate the industrial, commercial,
infrastructural, cultural, social, political and other relations
of the Partner States to the end that there shall be
accelerated, harmonious and balanced development and
sustained expansion of economic activities, the benefit of
which shall be equitably shared.
3. The Community shall ensure:
(a) The attainment of sustainable growth and development
of the Partner States by the promotion of a more balanced
and harmonious development of the Partner States;
(b) The strengthening and consolidation of co-operation in
agreed fields that would lead to equitable economic
development within the Partner States and which would in
turn, raise the standard of living and improve the quality of
life of their populations;
(c) the promotion of sustainable utilization of the natural
resources of the Partner States and the taking of measures
that would effectively protect the natural environment of
the Partner States;
(d) the strengthening and consolidation of the long standing
political, economic, social, cultural and traditional ties and
associations between the peoples of the Partner States so as
to promote a people-centered mutual development of these
ties and associations;
(e) The mainstreaming of gender in all its endeavors and the
enhancement of the role of women in cultural, social,
political, economic and technological development;
(f) The promotion of peace, security, and stability within,
and good neighborliness among, the Partner States;
(g) The enhancement and strengthening of partnerships
with the private sector and civil society in order to achieve
sustainable socio-economic and political development; and
(h) The undertaking of such other activities calculated to
further the objectives of the Community, as the Partner
States may from time to time decide to undertake in
common.
REFRENCES
(a) David M. Freidenreich, Muslims in canon law,
650-1000
https://www.birmingham.ac.uk/Documents/college-
artslaw/CMR1900/CMR1900/Sample-essay-Canon-
Law.pdf
(b) Movsesian, Mark, Fiqh and Canons: Reflections
on Islamic and Christian Jurisprudence (August 1,
2010). Seton Hall Law Review, Forthcoming, St. John's
Legal Studies Research Paper No. 10-185, Available at
SSRN: https://ssrn.com/abstract=1653995
(c) Bell, G. (2012). Religious Legal Pluralism
Revisited – The Status of the Roman Catholic Church
and Her Canon Law in Singapore. Asian Journal of
Comparative Law, 7, 1-37.
https://doi.org/10.1017/S2194607800000600
(d)Ruhangisa, J. (2017). The Scope, Nature and Effect of EAC Law.
In Ruhangisa J., Ugirashebuja E., Ottervanger T., & Cuyvers A.
(Eds.), East African Community Law: Institutional, Substantive
and Comparative EU Aspects (pp. 139-160). LEIDEN; BOSTON:
Brill. Retrieved August 7, 2020, from
www.jstor.org/stable/10.1163/j.ctt1w76vj2.11
(e) Binda, E. (2017). The Legal Framework of the EAC. In
Ugirashebuja E., Ruhangisa J., Ottervanger T., & Cuyvers A.
(Eds.), East African Community Law: Institutional, Substantive
and Comparative EU Aspects (pp. 103-118). LEIDEN; BOSTON:
Brill. Retrieved August 7, 2020, from
www.jstor.org/stable/10.1163/j.ctt1w76vj2.9
TOPIC 4.0

THE KENYAN LAW LEGAL SYSTEM

4.0 INTRODUCTION
In this lesson, you will learn the historical development of
law in particular the pre-colonial, post-colonial and the
formal sources of law in Kenya including the hierarchy and
conflict of laws.
Expected Lesson Learning Outcomes:
By the end of this lesson, you will be able to:-
Analyze the historical development of law in particular the
pre-colonial, post-colonial and the formal sources of law in
Kenya including the hierarchy and conflict of laws.

4.1 HISTORICAL DEVELOPMENT OF LAW IN

PARTICULAR THE PRE-COLONIAL, POST-
COLONIAL
  The Kenyan legal system was shaped by English legal
system occasioned by the British administration that
lasted over six decades where judges and the bar, were
exclusively European.
 It was then renamed Kenya Colony and Protectorate in
1920 and remained so until 1963 when Kenya became
an independent state.
 Mixed legal system of English common law, Islamic
law, and customary law; judicial review in the new
Supreme Court established by the new constitution.

4.1.1 THE COLONIAL PERIOD

i) The Legal System
 As is evident from history, colonial powers that
colonised Africa brought their laws with them.
 English laws were further introduced into
Kenya through local ordinances some of which
were copies from corresponding English Acts
and others which applied the English laws by
reference.
 To administer they introduced English law and
the colonial power established a Supreme
Court and subordinate Courts of various
classes whereby they imported various
 professional lawyers to be Judges and resident
magistrates.
 The system of law and courts during the
colonial period was described typically as dual,
whereby side by side set up of English-type of
Courts administering English law there also
existed a parallel system of courts to
administer justice to indigenous people
(natives) and until the 1950’s were referred to
as the Native tribunals.
 Supreme Courts and subordinate Courts also
had power to admisnister native law although
they were not bound to apply it but only to be
guided by it.
 Appeals from the Native Tribunals lay with the
Native Court of Appeal and then to the District
Commissioner and finally to the Provincial
Commissioner.
 The idea behind the Native Tribunal system
was that since the system was in place before
the British came it should then be allowed to
continue to be administered by the council of
elders in accordance with native laws and
customs but it should be controlled and by
administrative officers who are believed to
 understand the natives more better not judicial
officers.
 The African Courts ordinance of 1951 brought
changes and Native Tribunals renamed to
African Courts whose appeals now lay with the
African Appeal Court and further to the District
commissioner as before.
 But instead of further appeal to the Provincial
Commissioner it now was to the new Court of
Review consisting of a chairman of high judicial
rank appointed by the Chief Justice, the Chief
Native Commissioner, the African Courts
Officer and an African to be appointed by the
Govornor.

ii) CRIMINAL LAW

 The Indian Penal Code was introduced to Kenya
at an early stage of the colonial period and
continued to be in force till 1930 which was the
replaced by the Colonial Office Model Code
which was based on the Queensland Code of
1899.
 Native Criminal Law was initially applied by
the Native Tribunals subject to supervision of
District officers but gradually the Tribunals
 were given jurisdiction to try certain offences
under the penal code.
 However, gradually whereby a Tribunal or
Court was given jurisdiction to try a penal code
offense, it was tried as per the relevant section
of the penal code and not under native law or
custom.
 Which led to the gradual disappearance of the
customary criminal law

iii) CONTRACT AND COMMERCIAL LAW

 Indian Contract Act was applied in Kenya
during the early period of colonialism, although
it stood the test of time it was replaced by the
Law of Contract Act of 1960, which simply
applied the English law of Contract to Kenya.
 Reason given was that it was difficult to find
Indian Cases in Kenyan libraries.
 Several other enactments relating to
commercial law came to place but were
basically based and corresponding with English
Acts.
 Any customary law relating to contract
continued to be applied in the Native Tribunals
and later the African Court.
iv) LAW OF TORTS
 Law which applied was basically the English
Law by virtue of the general reception clause
and several ordinances based on corresponding
English Acts.
 Customary law on torts applied in African
Courts.

v) MARRIAGE, FAMILY LAW AND

SUCCESSION
 It is in these area of personal laws that the
colonial powers faced a lot of difficulties by not
recognising a dual system like in other laws but
rather four systems which included;
a) English-type law
b) African Customary law
c) Islamic law, and
d) Hindu law

 The principal difficulty in the field of marriage

law lay in the fact that Africans were given the
option to marry under the statutory law and if
they did they were enjoined to be monogamous.
 Although many married under statutory law but
ignored the prescription of remaining
 monogamous which brought issues in matters
of matrimonial and succession.

4.1.2 SOME SALIENT FEATURES OF THE

KENYAN LEGAL SYSTEM DURING THE
COLONIAL PERIOD

1. There was a complete separate administration of the

English law and Customary Native laws by different
sets of Court and of Islamic by yet a third set of court.
(Khadhis Court)
2. Intense participation by administrative officers in the
legal systems, both containing subordinate courts of
various classes in English-type system and revisionary,
supervisory and appallete system in the Native
Tribunals.
3. Absence of professional lawyers in the Native
Tribunals so that customary law and its administration
remain in the domain of administrative officers.
4. General lack of interest by colonial governments in
customary law problems and if it did reach the English-
type Courts those questions were treated as questions
of facts to be proved by evidence or assessors.
5. Customary laws were looked down upon as an inferior
system, tolerated but not accepted, hoping that within
time it withers and gives way to English superior laws.

4.2 THE POST-INDEPENDENCE PERIOD

Upon independence in 1963, Kenya had no legal revolution
in that there was no such conscious decision to scrap away
colonial laws and start up afresh but rather the new
independent government inherited, recognised and applied
the English-type legal and judicial system.

i) GOVERNMENT INITIATIVE
a) Restatement of Customary Laws
 Kenya after attaining independence realised
that recognition or reform of customary law
must be studied and recorded or restated in
a language intelligible to a lawyer.
 It was decided to start with the surviving of
customary criminal offenses and to carry out
a research in collaboration with the
Restatement of African Law Project which
was initiated by the School of Oriental and
African Studies of the University of London.
 There was a pressing need because the
Independence Constitution provided that
 three years after independence, all criminal
offences should be part of the written laws.
 By December of 1966 nothing was done to
that effect and customary criminal law
became no more.
 Focus was thus shifted to areas of customary
law still in operation that is marriage,
divorce and succession.

b) Integration of The Courts

 The second initiative of the government was
to integrate the system of Courts and to
remove the role of administrators from the
judicial systems.
 The administrative officers were no longer
ex-officio resident magistrates and more
professionals were appointed to man the
sub-ordinate Court system.
 In the African Court System there was a
concerted effort to weed out the older men
(traditional elders) and replace them with
younger men who received some legal
training at the Kenya Institute of
Administration.
 The African Court officer himself became an
officer in the Judicial Department and the
 whole system came under that department
headed by the Chief Justice.
 In 1967 the process of integrating the Courts
System was done through the Magistrates’
Courts Act, which brought the Resident
Magistrates’ Court and District Magistrates’
Courts of three classes a High Court, and
Kenya Court of Appeal as the final appellate
Court.

c) Provisions for the application of English Law

and Customary Law
 The general reception clause of 1897, were
repeated almost in verbatim in the
independence constitution of 1963 and in
section 3(1) of the Judicature Act of 1967 but
with regard to customary laws section 3 (2)
of the Judicature Act which provided that;
“the High Court and all other Sub-ordinate
Courts shall be guided by African Customary
law in civil cases in which one or more of
the parties is subjected to it or affected by it,
so far as it is applicable and is not repugnant
to justice, morality or inconsistent with any
written laws.”
  Although the provision enjoins the court to
be guided by customary laws subject to
questions of repugnancy and inconsistency,
the subsection for the first time clearly opens
the way for the application of customary law
to a non-African because only one of the
parties needs to be subjected to it or affected
by it.

d) Commissions on the Law of Marriage,

Divorce and Succession
 May be termed as one of the most ambitious
government initiatives was the establishment
of the two commission’s one dealing with the
laws of Marriage and divorce and one
dealing with the laws of Succession.
 They were to examine the fourfold system,
consisting of the statutory laws, customary
laws, Islamic laws and Hindu laws after
which make a recommendation for a new law
providing a comprehensive and so far as may
be practicable a uniform law applicable to all
persons.
 A first attempt to pass the Succession Bill in
1970 faile but in 1972 a second successful
attempt passed the Law of Succession Act
ii) JUDICIAL APPROACH
 Although the colonial Judges made no serious
attempts to adapt English Law to suit local
conditions and although they tolerated
application of customary law they looked on it
as an inferior system and jumped at any
attempt to hold it inconsistent with the written
law or repugnant to their notions of English
Justice and Morality.
 The notion of customary law being inferior was
dispelled by judges after independence. The
Court of Appeal led the way in Kimani v
Gikanga and both Daffus and Crabbe
emphasized more than once in their judgement
that customary law is part of the law of Kenya.
 Another judge is Miller who both as High Court
Judge and as Justice of Appeal emphasized
again and again that customary marriages were
not inferior and ranked equally with statutory
marriages as in Muli v Kithuka C.A. No. 106 of
1969.
4.3 Posts-2010 Constitution
The Constitution and the Court(s)
 Regarding courts, Kenya does not have a specialized
court to address constitutional matters called a
“Constitutional Court,” as South Africa and Germany
have.
 All the superior courts in Kenya (the High Court,
Employment and Labor Relations Court, Environment
and Land Court, Court of Appeal and Supreme Court)
have the authority to make interpretations and
determinations on the Constitution.
 Ordinarily, the High Court has the explicit original
jurisdiction to
(a) Determine questions of violations of rights and also
(b) Interpret the Constitution. This jurisdiction is
exercised either by a single judge or by an even
number of judges (more than three) if the dispute
concerns a novel point of law. A decision from the High
Court can be appealed against to the Court of Appeal.
The High Court at Nairobi in Kenya has a division
designated to hear and determine petitions on human
rights and constitutional matters. Other High Court
stations can hear any petition—the arrangement in
Nairobi is purely administrative.
  At the apex of the judicial system is the Supreme
Court. The Court has both original and appellate
jurisdiction. It has original jurisdiction to determine;
(a)Presidential elections and
(b)Request for advisory opinions at the instance of the
national government, state organ or county
government on a matter that concerns a county
government. It does have appellate jurisdiction to
hear and determine appeals from the Court of
Appeal in cases of interpretation of the Constitution
and in cases in which it or the Court of Appeal
certifies a matter to be of general public
importance- though a certification by the Court of
Appeal can be reviewed or set aside.
 Thus, the Supreme Court is the court with the final
authority on constitutional interpretation, but that
authority can only be exercised if a matter falls within
its jurisdiction.

III. Constitutional Controversies

There were two significant controversies in 2016- one
purely political and another case based.
 The political one concerned the tenure of
commissioners of the electoral body, the Independent
Electoral and Boundaries Commission (IEBC). It
started when opposition leaders called for the
 resignation of IEBC commissioners that presided over
the 2013 general elections.
 However, the most pronounced controversy in 2016
was perhaps one that surrounded the succession of the
Supreme Court judges, profiled as the “Retirement Age
Cases.”

4.4 CONFLICT OF LAWS

4.4.1 Introduction
Sovereignty of a nation involves both equality and
independence of a state as stipulated under article 2(1) of
the UN charter which presumes the principle of equality
among member nations.
Although sovereignty may exist in terms of territorial,
political or legal independence, it’s however evident that
absolute sovereignty in terms of politics, economics and
population movement is a myth regardless of what form of
governance is in place.
So, the question is basically what is conflict of laws????
 Generally, conflict of laws is a set of procedural rules
that determines which legal system and which
jurisdictions applies to a given dispute.
 The rules typically apply when a legal dispute has a
‘foreign’ element such as a contract agreed to by
parties located in different countries.
  Conflict of laws is sometimes interchangeable referred
to as private international law or international private
law. Whereas the term conflict of laws is primarily
used in jurisdictions of the Common Law legal tradition
(England, Canada, and Australia, the United States,
Kenya etc), private international law is usually used in
France, Italy, Greece, and in the Spanish and
Portuguese-speaking countries. In Germany (and
German Speaking Countries such as Austria,
Leichtenstein and Switzerland) as well as in Russia and
Scotland the word international private law is used.
 Within the federal systems (e.g. in the United States
and Australia) where legal conflicts among federal
states require resolution, the term conflict of laws is
preferred simply because such cases do not involve an
international issue. Hence, conflict of laws is a general
term to refer to disparities among laws, regardless of
whether the relevant legal systems are international or
inter-state.

4.4.2 NATURE
 1) Conflict of law rules does not by themselves dispose of
a case with substantive remedy. They simply indicate
the law through which final remedy could be obtained
2) Is not concerned with public cases like criminal,
revenue, customs, constitutional and administrative
cases. It deals with disputes of private nature.
3) It is basically a national law made by each country.
4) conflict problems arise at both the international ( intra
-state) and national level (interstate conflicts).e.g. in
Federations

4.4.3 RAISON D'ÊTRE OF CONFLICT OF LAWS

(What is the purpose of its existence, why do we need It?)
Two important facts create obstacle to smooth operation of
law in the international community and give rise to Conflict
of laws Problems and they include;
1) Different legal communities have different laws
( diversity factor)
2) Legal transactions are some how connected with
more than one legal system because of cross border
commercial, family etc relations (Integration factor)

4.4.4 BRANCHES OF CONFLICT OF LAW

1. Jurisdiction:
 The question that arises in conflict of law cases is
whether the forum court has the power to resolve
the dispute at hand.

2. Choice of law:
If the first question as to the court’s jurisdiction is
yes, the second issue is which is being applied to
resolve the dispute?
3. Enforcement Foreign judgments:
The other question related to the ability of the
courts to recognize and enforce a judgment from an
external forum within the jurisdiction of the
adjudicating forum.

4.4.5 JUSTIFICATION
Why should the courts depart from the rules of the
country’s law and apply those of another system?
The justifications for this include:

(i) To implement the reasonable and

legitimate expectation of parties to the
transaction or an occurrence – E.g., if two
Kenyans went and got married in another
country, say France in accordance with the
 rules prescribed by the French law and not the
formalities prescribed by the Kenyan laws, if
Kenyan laws were to be applied, then the
Kenyan courts would have to treat the parties
as unmarried and their children as illegitimate;
(ii) To avoid grave injustices that might occur -
It would be for instance possible for the courts
in Kenya to refuse to recognize or enforce a
foreign judgement determining the issue
between the parties, but this would cause great
inconvenience and even injustice. E.g., if
divorce was granted in a foreign country and
after on one of the parties remarried, he/she
might be guilty of bigamy unless that foreign
judgement was recognized. Similarly, if a
person sued and obtained a judgement in a
foreign country, he could find that the
judgment debtor has surreptitiously removed
all his assets from that country to avoid
execution of the judgement.
(iii) As a Matter of Comity – at one time, the
doctrine of comity was held to be a sufficient
basis for the conflict of laws. Comity here
connotes courtesy or the need for reciprocity or
even the rule of international law as the
accepted rule of mutual conduct as between
states and therefore more than mere courtesy.
Thus, section 13 of the Privileges and
Immunities Act states that ‘Notwithstanding
the foregoing provisions of this Part, the
Minister may decline to accord immunities and
privileges to, or may withdraw immunities and
privileges from, nationals or representatives of
any state on the ground that the state is failing
to accord corresponding immunities and
privileges to citizens or representatives of
Kenya.’ Most common law states do not use
comity as a justification for their actions but
rather as a basis for legal reforms on their
laws. In Rahimtoola v. Nizam of Hyderabad,
Coleridge CJ certain rules of the Civil
Procedure in England (r 60) was enacted to
bring English practice ‘into accordance with
well-settled rules of international law.’ In Laker
Airways litigation, British Airways and British
Caledonian Airways obtained injunctions in
English courts enjoining the liquidator of Laker
Airways form commencing anti-trust
proceedings against them in the United States.
The United States Court enjoined other airways
from taking similar steps in the English courts
to frustrate the anti-trust proceedings in the
 United States. In the final stage of these
contest, the House of Lords discharged the
English injunction, as was held by Lord
Scarman the action was disguised/indirect
interference with the process of justice in
foreign courts. Thus, in Credit Suisse Fides
Trust SA v. Cuoghi [1998] QBB 818, 827 (CA),
Millet LJ opined that in Mareva Injunction ‘it
was becoming widely accepted that comity
between courts of different countries requires
mutual respect for territorial integrity of each
other’s jurisdiction.’
(iv) To Meet Treaty Obligations – Sometimes,
application of foreign laws by a municipal court
is required by public international law. E.g.
Kenya may be bound by a treaty that requires
national courts to apply foreign law. 4 Note
that under the 2010 Constitution, article 2(5)
and (6) make international law to be part of the
municipal law of Kenya and bind the national
courts to enforce international laws.

4.4.6 SOURCES OF APPLICABLE RULES

CONFLICT OF LAWS
1. Legislation
 This is by far the most important source. For a long
time both in England and Kenya, Statute (e.g., the
Wills Act 1861) were haphazardly and sporadically
enacted to remedy some glaring anomaly or injustice,
or to facilitate reciprocal enforcement of judgements
eg within the commonwealth. Increasingly, they are
enacted in order to enforce international conventions
or as a well though and considered reforms.
Legislation having effect on the Conflict of law system
may be Statute with no indication of their application
space. It is a common law principle that statutes are
not intended to apply beyond the states’ territorial
limits. E.g. it has been argued that a provision in law
that ‘a marriage between person either of whom is
under the age of 16 years shall be void,’ cannot be
literary interpreted to mean any marriage in the world.
However, this presumption is easily rebutted.

2. International Conventions
The treaties negotiated under the aegis of the Hague
Conference on Private International Law have formed
an important basis of conflict of laws. E.g. Hague
Convention on Conflict of Laws relating to the form of
testamentary disposition formed a basis of the English
Wills Act 1963, from which the Kenyan law on
Succession subsequently borrowed. Under the 2010
Constitution, international treaties signed and ratified
 in Kenya automatically become part of the national law
of the country.
3. Decision of Courts
4. Opinio Juris
Jurists like Ulruich Huber (1636-1694) of Friesland;
Joseph Story (1779-1845) of the US and Friedrich Carl
Von Savigny greatly influenced the development of the
English conflict of law system from which we largely
borrowed.

4.4.7 THE STAGES IN A CONFLICT CASE

1. The court must first decide whether it has jurisdiction
and, if so, whether it is the appropriate venue given
the problem of forum shopping.
2. The next step is the characterization of the cause of
action into its component legal categories which may
sometimes involve an incidental question (also note the
distinction between procedural and substantive laws).
Each legal category has one or more choice of law
rules to determine which of the competing laws should
be applied to each issue.
3. Once the applicable law is decided, that law must be
proved before the forum court and applied to reach a
judgment.
 4. The successful party must then enforce the judgment
which will first involve the task of securing cross-
border recognition of the judgment.
 In those states with an underdeveloped set of Conflict
rules, decisions on jurisdiction tend to be made on an
ad hoc basis, with such choice of law rules as have
been developed embedded into each subject area of
private law and tending to favour the application of the
lex fori or local law.
 In states with a more mature system, the set of Conflict
rules stands apart from the local private civil law and
adopts a more international point of view both in its
terminology and concepts.
 Because these rules are directly connected with
aspects of sovereignty and the extraterritorial
application of laws in the courts of the signatory states,
they take on a flavour of public rather than private law
because each state is compromising the usual
expectations of their own citizens that they will have
access to their local courts, and that local laws will
apply in those local courts.

4.4.8 CHOICE OF LAW RULES

Courts faced with a choice of law issue have a two-stage
process:
(a) The court will apply the law of the forum (lex fori) to all
procedural matters (including, self-evidently, the choice of
law rules);
(b) With regard to substantive questions of law, the court
will look at factors that connect/link the legal issues to the
laws of potentially relevant states and applies the laws that
have the greatest connection, e.g.
(i) The law of nationality (lex patriae) or domicile (lex
domicilii) will define legal status and capacity,
(ii) The law of the state in which land is situated (lex
situs) will be applied to determine all questions of title,
(iii) The law of the place where a transaction physically
takes place or of the occurrence that gave rise to the
litigation (lex loci actus) will often be the controlling
law selected when the matter is substantive. But the
proper law has become a more common choice.

Assessment Questions
1. Evaluate the formal sources of law in Kenya
including the hierarchy and conflict of laws.

4.5 References
(a) Sandra Fullerton Joireman (2006) The evolution of
the common law: Legal development in Kenya and
India, Commonwealth & Comparative Politics, 44:2,
190-210. Retrieved from
 https://doi.org/10.1080/14662040600831636
(b) Cotran, E. (1983). The Development and Reform
of the Law in Kenya. Journal of African Law, 27(1), 42-
61. Retrieved August 7, 2020, from
www.jstor.org/stable/745622
(c) https://www.academia.edu/29243066/
CONFLICT_OF_LAWS_Notes
(d) https://chilot.me/wp-content/uploads/2021/06/
Conflict-of-Laws-tutorial.pdf
TOPIC 5.0

STATUTORY INTERPRETATION
“The essence of law lies in the spirit, not its letter, for
the letter is significant only as being the external
manifestation of the intention that underlies it” –
Salmond

5.1 INTRODUCTION
Interpretation means the art of finding out the true sense of
an enactment by giving the words of the enactment their
natural and ordinary meaning. It is the process of
ascertaining the true meaning of the words used in a
statute. The Court is not expected to interpret arbitrarily
and therefore there have been certain principles which have
evolved out of the continuous exercise by the Courts. These
principles are sometimes called ‘rules of interpretation’.
Lord Denning in Seaford Court Estates Ltd. Vs Asher,
“English Knowledge is not an instrument of mathematical
precision… It would certainly save the judges from the
trouble if the acts of parliament were drafted with divine
precision and perfect clarity. In the absence of it, when a
defect appears, a judge cannot simply fold hand and blame
the draftsman…”
The object of interpretation of statutes is to determine the
intention of the legislature conveyed expressly or impliedly
in the language used. As stated by SALMOND, "by
interpretation or construction is meant, the process by
which the courts seek to ascertain the meaning of the
legislature through the medium of authoritative forms in
which it is expressed."
Statutory interpretation is of central importance to the daily
work of all judges. This chapter explores
1. The reasons why statutory interpretation is necessary
and then considers how judges have explained the way
in which they carry out this task.
2. It examines how judges consider the text, the context
and the purpose of statutory provisions.
3. It also looks at how human rights instruments can be
used as an interpretive tool; and
4. Finally, it then considers the issue of whether judges
can ‘fill in gaps’ in a legislative scheme and whether
 there is a Rubicon which judges cannot cross in the
interpretive process.

5.1 MEANING AND CLASSIFICATION OF

STATUTES
A Statute is a formal written enactment of a legislative
authority that governs a country, state, city, or county.
Typically, statutes command or prohibit something, or
declare policy. The word is often used to distinguish law
made by legislative bodies from the judicial decisions of
the common law and the regulations issued by
Government agencies. - [Black, Henry Campbell (1990).
Black's Law Dictionary, Sixth Edition]
A statute is a will of legislature conveyed in the form of
text. Statutes generally refer to the laws and regulations
of every sort, every provision of law which permits or
prohibit anything. A Statute may generally be classified
with reference to its duration, nature of operation, object
and extent of application. Types of classifications of
Statutes may be elaborated as follows;
1. Classification with reference to basis of Duration
(i) Perpetual statutes - It is perpetual when no time
is fixed for its duration and such a statute remains
in force until its repeal which may be express or
implied.
 (ii) Temporary statutes - A statute is temporary
when its duration is only for a specified time and
it expires on the expiry of the specified time
unless it is repealed earlier.
2. Classification with reference to Nature of Operation
(i) Prospective statutes – A statute which operates
upon acts and transactions which have not
occurred when the statutes take effect, that is
which regulates the future is a Prospective
statute.
(ii) Retrospective statutes – Every statute takes
away or impairs vested rights acquired under the
existing laws or creates a new obligation into a
new duty or attaches a new disability in respect
of transactions or considerations already passed
are deemed retrospective or retroactive statute.
(iii) Directory statutes – A directory statute is
generally affirmative in its terms, recommends a
certain act or omissions, but imposes no penalty
on non-observance of its provisions.
(iv) Mandatory statutes – A Mandatory statute is
one which compels performance of certain acts
and directs that a certain thing must be done in a
certain manner or form. A type of Mandatory
Statute is the Imperative Statute. Imperative
Statutes are often negative or prohibitory in its
 terms and makes certain acts or omissions
absolutely necessary and subjects a contravention
of its provision to a penalty. When the statute is
passed for the purposes of enabling something to
be done and prescribes the formalities which are
to attend its performance, those prescribed
formalities which are essential to the validity of
the things which are done are called imperative
or absolute, but those which are not essential and
may be disregarded without invalidating the
things to be done are called directory statutes.
3. Classification with reference to Objective
(i) Enabling statutes – These statutes are which
enlarges the common law where it is too strict or
narrow. It is a statute which makes it lawful to do
something which would not otherwise be lawful.
(ii) Disabling statutes – These statutes restrict or
cut down rights existing at common law.
(iii) Permissive statute – This type of statute allows
certain acts to be done without commanding that
they be performed.
(iv) Prohibitory statute – This type of statute which
forbids the doing of certain things.
(v) Codifying Statute – It presents and orderly and
authoritative statement of the leading rules of law
 on a given subject, whether those rules are to be
found in statute law or common law.
(vi) Consolidating statute – The purpose of
consolidating statute is to present the whole body
of statutory law on a subject in complete form
repeating the former statute.
(vii) Curative or validating Statute - It is passed to
cure defects in the prior law and too validate legal
proceedings, instruments or acts of public and
private administrative powers which in the
absence of such statute would be void for want of
conformity with existing legal requirements but
which would have been valid if the statute has so
provided at the time of enacting.
(viii) Repealing Statute – A statute which either
expressly or by necessary implication revokes or
terminates another statute is a repealing statute.
(ix) Amending Statute – It is a Statute which makes
and addition to or operates to change the original
law so as to effect an improvement or more
effectively carry out the purpose for which the
original law was passed.

5.2 LATIN LANGUAGE AND ITS IMPORTANCE

IN STATUTORY CONSTRUCTION
Latin terminology is still used extensively in Statutes.
Latin alphabet - The Romans used just 23 letters to
write Latin: A B C D E F G H I K L M N O P Q R S T V X
Y Z . There was no lower case letters, I and V could be
used as both vowels and consonants, and K, X, Y and Z
were used only for writing words of Greek origin. Some
common Latin phrases used in statutory construction
are:
1. NOSCITUR A SOCIIS - Words must be construed
in conjunction with the other words and phrases
used in the text. Legislative intent must be
ascertained from a consideration of the statute as a
whole. The particular words, clauses and phrases
should not be studied as detached and isolated
expressions, but the whole and every part of the
statute must be considered in fixing the meaning of
any of its parts and in order to produce a
harmonious whole. Where a particular word or
phrase in a statement is ambiguous in itself or is
equally susceptible of various meanings, its true
meaning may be clear and specific by considering
the company in which it is found or with which it is
associated.
2. EJUSDEMGENERIS- Where a statute describes
things of particular class or kind accompanied by
words of a generic character, the generic words
 will usually be limited to things of a kindred nature
with those particularly enumerated, unless there
be something in the context of the statute to repel
such influence. Ejusdem generis could be
expansive, however, because the list is not
exclusive; it may be expanded if a juridical tie
could be found with another item.
3. EXPRESSIO UNIUS EST EXCLUSION
ALTERIUS - The express mention of one person,
thing, or consequence implies the exclusion of all
others. Variation:
Expressiumfacitcessaretacitum. What is
expressed puts an end to what is implied. Where a
statute is expressly limited to certain matters, it
may not, by interpretation or construction, be
extended to other matters. Canon of restrictive
interpretation. Where a statute, by its terms, is
expressly limited to certain matters, it may not, by
interpretation or construction, be extended to
others. The rule proceeds from the premise that
the legislature would not have made specified
enumerations in a statute had the intention been
not to restrict its meaning and to confine its terms
to those expressly mentioned.
4. DISSIMILUM DISSIMILISEST RATIO - The
courts may distinguish when there are facts and
 circumstances showing that the legislature
intended a distinction or qualification.
5. CASUS OMISSUS CASUS OMISSUS PRO
OMISSOHABENDUS EST. A person, object, or
thing omitted from an enumeration in a statute
must be held to have been omitted intentionally.
This needs two laws. In expressiounius, it is just
the enumeration you are looking at, not another
law.
6. UBI LEX NON DISTINGUIT NEC NOS
DISTINGUERE DEBEMOS Where the law makes
no distinctions, one does not distinguish. Where
the law does not distinguish, courts should not
distinguish.
7. REDEENDO SINGULAR SINGULIS Referring
each to each; let each be put in its proper place,
that is, the words should be taken distributively.

5.3 STATUTORY INTERPRETATION

The concept of interpretation of a Statute cannot be static
one. Interpretation of statutes becomes an ongoing exercise
as newer facts and conditions continue to arise. We can say,
interpretation of Statutes is required for two basic reasons
viz. to ascertain:
 • Legislative Language - Legislative language may be
complicated for a layman, and hence may require
interpretation; and
• Legislative Intent - The intention of legislature or
Legislative intent assimilates two aspects:
I) The concept of ‘meaning’, i.e., what the
word means; and
II) The concept of ‘purpose’ and ‘object’ or the
‘reason’ or ‘spirit’ pervading through the
statute.

Some Important points to remember in the context of

interpreting Statutes:
• Statute must be read as a whole in Context
• Statute should be Construed so as to make it
Effective and Workable - if statutory provision is
ambiguous and capable of various constructions, then
that construction must be adopted which will give
meaning and effect to the other provisions of the
enactment rather than that which will give none.
• The process of construction combines both the literal
and purposive approaches. The purposive construction
rule highlights that you should shift from literal
construction when it leads to absurdity.

5.3.1 PRESUMPTIONS IN STATUTORY

INTERPRETATION
Unless the statute contains express words to the
contrary it is assumed that the following presumptions
of statutory interpretation apply, each of which may be
rebutted by contrary evidence. Presumptions represent
the accepted judicial view of a range of circumstances
that have been predetermined to be the way in which
every manifestation of those circumstances will be
viewed, until any evidence to the contrary is produced.
These tend to arise from theoretical and practical
principles of the law.
• A statute does not alter the existing common law. If a
statute is capable of two interpretations, one involving
alteration of the common law and the other one not,
the latter interpretation is to be preferred.
• If a statute deprives a person of his property, say by
nationalization, he is to be compensated for its value.
• A statute is not intended to deprive a person of his
liberty. If it does so, clear words must be used. This is
relevant in legislation covering, for example, mental
health and immigration.
• A statute does not have retrospective effect to a date
earlier than its becoming law.
• A statute generally has effect only in the country
enacted. However, a statute does not run counter to
international law and should be interpreted so as to
give effect to international obligations.
 • A statute cannot impose criminal liability without
proof of guilty intention. Many modern statutes rebut
this presumption by imposing strict liability; for e.g. -
dangerous driving.
• A statute does not repeal other statutes. Any point
on which the statute leaves a gap or omission is
outside the scope of the statute.

5.3.2 RULES OF INTERPRETATION

There are certain general principles of interpretation
which have been applied by Courts from time to time.
Over time, various methods of statutory construction
have fallen in and out of favour. Some of the better-
known rules of interpretation also referred to as the
Primary Rules of Interpretation are discussed
hereunder.
1. Rule of Literal Interpretation
In construing Statutes the cardinal rule is to
construe its provisions Literally and grammatically
giving the words their ordinary and natural
meaning. This rule is also known as the Plain
meaning rule. The first and foremost step in the
course of interpretation is to examine the language
and the literal meaning of the statute. The words in
an enactment have their own natural effect and the
construction of an act depends on its wording.
 There should be no additions or substitution of
words in the construction of statutes and in its
interpretation. The primary rule is to interpret
words as they are. It should be taken into note that
the rule can be applied only when the meanings of
the words are clear i.e. words should be simple so
that the language is plain and only one meaning can
be derived out of the statute.
This is the oldest of the rules of construction and is
still used today, primarily because judges may not
legislate. As there is always the danger that a
particular interpretation may be the equivalent of
making law, some judges prefer to adhere to the
law's literal wording.

2. Golden Rule of Interpretation

The Golden rule, or British rule, is a form of
statutory interpretation that allows a judge to
depart from a word's normal meaning in order to
avoid an absurd result. It is a compromise between
the plain meaning (or literal) rule and the mischief
rule. Like the plain meaning rule, it gives the words
of a statute their plain, ordinary meaning. However,
when this may lead to an irrational result that is
unlikely to be the legislature's intention, the judge
can depart from this meaning. In the case of
homographs, where a word can have more than one
meaning, the judge can choose the preferred
meaning; if the word only has one meaning, but
applying this would lead to a bad decision, the judge
can apply a completely different meaning. This rule
may be used in two ways. It is applied most
frequently in a narrow sense where there is some
ambiguity or absurdity in the words themselves. For
example, imagine there may be a sign saying "Do
not use lifts in case of fire." Under the literal
interpretation of this sign, people must never use
the lifts, in case there is a fire. However, this would
be an absurd result, as the intention of the person
who made the sign is obviously to prevent people
from using the lifts only if there is currently a fire
nearby. The second use of the golden rule is in a
wider sense, to avoid a result that is obnoxious to
principles of public policy, even where words have
only one meaning. Example: The facts of a case are;
a son murdered his mother and committed suicide.
The courts were required to rule on who then
inherited the estate, the mother's family, or the
son's descendants. There was never a question of
the son profiting from his crime, but as the outcome
would have been binding on lower courts in the
 future, the court found in favour of the mother's
family.

3. The Mischief Rule

The mischief rule is a rule of statutory
interpretation that attempts to determine the
legislator's intention. Originating from a 16th
century case (Heydon’s case) in the United
Kingdom, its main aim is to determine the "mischief
and defect" that the statute in question has set out
to remedy, and what ruling would effectively
implement this remedy. When the material words
are capable of bearing two or more constructions
the most firmly established rule or construction of
such words “of all statutes in general be they penal
or beneficial, restrictive or enlarging of the common
law is the rule of Heydon’s case. The rules laid down
in this case are also known as Purposive
Construction or Mischief Rule. The mischief rule is a
certain rule that judges can apply in statutory
interpretation in order to discover Parliament's
intention. It essentially asks the question: By
creating an Act of Parliament what was the
"mischief" that the previous law did not cover?
Heydon’s case this was set out in Heydon's Case
[1584] 3 CO REP 7a. where it was stated that there
were four points to be taken into consideration
when interpreting a statute:
 What was the common law before the making
of the act?
 What was the "mischief and defect" for which
the common law did not provide?
 What remedy the parliament hath resolved and
appointed to cure the disease of the
commonwealth?
 What is the true reason of the remedy? The
office of all the judges is always to make such
construction as shall suppress the mischief,
and advance the remedy, and to suppress
subtle inventions and evasions for continuance
of the mischief, and pro privatocommodo, and
to add force and life to the cure and remedy,
according to the true intent of the makers of
the Act, pro bono publico.
The application of this rule gives the judge
more discretion than the literal and the golden
rule as it allows him to effectively decide on
Parliament's intent. It can be argued that this
undermines Parliament's supremacy and is
undemocratic as it takes lawmaking decisions
away from the legislature. Use of this Rule
This rule of construction is of narrower
application than the golden rule or the plain
meaning rule, in that it can only be used to
interpret a statute and, strictly speaking, only
when the statute was passed to remedy a
defect in the common law.
Legislative intent is determined by examining
secondary sources, such as committee reports,
treatises, law review articles and
corresponding statutes. This rule has often
been used to resolve ambiguities in cases in
which the literal rule cannot be applied. In the
case of Thomson vs. Lord Clan Morris, Lord
Lindley M.R. stated that in interpreting any
statutory enactment regard must be had not
only to the words used, but also to the history
of the Act and the reasons which lead to its
being passed. Mischief Rule is applicable
where language is capable of more than one
meaning. It is the duty of the Court to make
such construction of a statue which shall
suppress the mischief and advance the
remedy.

Advantages
 1) The Law Commission sees it as a far more
satisfactory way of interpreting acts as
opposed to the Golden or Literal rules.
2) It usually avoids unjust or absurd results in
sentencing.

Disadvantages
1) It is considered to be out of date as it has
been in use since the 16th century, when
common law was the primary source of law
and parliamentary supremacy was not
established.
2) It gives too much power to the unelected
judiciary which is argued to be undemocratic.
3) In the 16th century, the judiciary would
often draft acts on behalf of the king and were
therefore well qualified in what mischief the
act was meant to remedy.
4) It can make the law uncertain.

4. Rule of Reasonable Construction

Every statute has a purpose, an objective. If the
literal meaning collides with the reason of
enactment of the statute then the intention of the
law should be taken up so that the actual meaning
of the statute can be properly understood. This rule
 mainly stresses upon the intention of the legislature
to bring up the statue and the sensible and not the
prima facie meaning of the statute. This helps us
clear the errors caused due to faulty draftsmanship.
However this rule also has its own limitations. The
intent of the statute is in itself a surmise and the
rule is usually avoided to complete the quest for
interpretation unless the intent in itself can be
interpreted properly.

5. Rule of Harmonious Construction

When there is a conflict between two or more
statues or two or more parts of a statute then the
rule of harmonious construction needs to be
adopted. The rule follows a very simple premise that
every statute has a purpose and intent as per law
and should be read as a whole. The interpretation
consistent of all the provisions of the statute should
be adopted. In the case in which it shall be
impossible to harmonize both the provisions, the
court’s decision regarding the provision shall
prevail. The rule of harmonious construction is the
thumb rule to interpretation of any statute. An
interpretation which makes the enactment a
consistent whole, should be the aim of the Courts
and a construction which avoids inconsistency or
 repugnancy between the various sections or parts of
the statute should be adopted.
The important aspects of this principle are
1. The courts must avoid a head on clash of
seemingly contradicting provisions and they must
construe the contradictory provisions so as to
harmonize them.
2. The provision of one section cannot be used to
defeat the provision contained in another unless
the court, despite all its effort, is unable to find a
way to reconcile their differences.
3. When it is impossible to completely reconcile
the differences in contradictory provisions, the
courts must interpret them in such as way so that
effect is given to both the provisions as much as
possible.
4. Courts must also keep in mind that
interpretation that reduces one provision to a
useless number or a dead lumbar, is not
harmonious construction.
5. To harmonize is not to destroy any statutory
provision or to render it loose.

6. Rule of Beneficial Construction

When the literal meaning of the statute defeats the
objective of the legislature, the court may depart
 from the dictionary and instead give it a meaning
which will advance the remedy and suppress the
mischief. This supports the initial and modern
approach that is to effectuate the object and
purpose of the act. The main objective by extending
the meaning of the statute is to ensure that its
initial purpose (public safety, maintenance of law
and order) is justified. This rule looks into the
reasons as per why the statute was initially enacted
and promotes the remedial effects by suppressing
the mischief. Though the rule almost covers the
main grounds of the statute but cannot be applied to
Fiscal statutes. When a word is ambiguous i.e. if it
has multiple meanings, which meaning should be
understood by that word?
7. Rule of Exceptional Construction
The rule of exceptional construction stands for the
elimination of statutes and words in a statute which
defeat the real objective of the statute or make no
sense. It also stands for construction of words ‘and’,
‘or’, ‘may’, ‘shall’ & ‘must’. While ‘and’ is normally
considered conjunctive so that both provisions of a
statute can be satisfied, ‘or’ is used of satisfying the
clauses or either of the provisions in a statute. The
word ‘may’ generally has a directory for but is also
has a mandatory force where subject involves
 discretion coupled with obligation, where the word
‘may’ has been used in the statute as a matter of
pure conventional courtesy and also where the word
‘may’ may defeat the objective of the statute.
Similarly ‘shall’ is considered to have a mandatory
force and is used in cases of statutes providing
specific penalty. ‘Must’ on the other hand had a
directory force and is used for statutes against the
government or using a mandatory force may result
in absurd results. While this rule seems simple, the
draftsmanship lies in deciding whether the statute
should use a mandatory for or a directory force.

8. Rule of Ejusdem Generis

Ejusdem Generis means "of the same kind and
nature”. When a list of two or more specific
descriptors are followed by more general
descriptors, the otherwise wide meaning of the
general descriptors must be restricted to the same
class, if any, of the specific words that precede
them. In this rule a specific word, class or species
needs to be mentioned so that the whole statute
revolves around it and the statute will be only
meant for these specific words. However the
specific words should not have a wide approach as
they would exhaust the whole statute. 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. To invoke the
application of ejusdem generis rule, there has to be
a distinct genus or category. The specific words
must apply not to the different objects of a widely
differing character, but, to something, which can be
called a class or kind of objects. Where this is
lacking, the rule will not be applicable. For the
invocation of the rule, there must be one distinct
genus or category. The specific words must apply
not to different objects of a widely varying character
but to words, which convey things or object of one
class or kind, where this generic unity is absent, the
rule cannot apply.
The rule of Ejusdem Generis applies as mentioned
by the Supreme Court in AmarchandraChakrabotry
v Collector of Excise, AIR 1972 SC 1863 when:
• The statute contains an enumeration of specific
words. • The subjects of enumeration constitute a
class or category.
• That class or category is not exhausted by the
enumeration. • The general item follows the
enumeration.
 • There is no indication of a different legislative
intent.

9. Noscitur a Sociis
Noscitur a Sociis literally means “It is known from
its associates”. The rule of language is used by the
courts to help interpret legislation. Under the
doctrine of "noscitur a sociis" the questionable
meaning of a word or doubtful words can be derived
from its association with other words within the
context of the phrase. This means that words in a
list within a statute have meanings that are related
to each other. In Foster v Diphwys Casson((1887) 18
QBD 428), the case involved a statute which stated
that explosives taken into a mine must be in a "case
or canister". Here the defendant used a cloth bag.
The courts had to consider whether a cloth bag was
within the definition. Under noscitur a sociis, it was
held that the bag could not have been within the
statutory definition, because parliament's intention
in using ‘case or container’ was referring to
something of the same strength as a canister.

10. ExpressioUnius Est ExclusioAlterius

The Expression literally means “the express mention
of one thing excludes all others”. Where one or
more things are specifically included in some list
and others have been excluded it automatically
means that all others have been excluded. However,
sometimes a list in a statute is illustrative, not
exclusionary. This is usually indicated by a word
such as "includes" or “such as”. Thus a statute
granting certain rights to "police, fire, and
sanitation employees" would be interpreted to
exclude other public employees not enumerated
from the legislation. This is based on presumed
legislative intent and where for some reason this
intent cannot be reasonably inferred the court is
free to draw a different conclusion. The maxim has
wide application and has been used by courts to
interpret constitutions, treaties, wills, and contracts
as well as statutes. Nevertheless, ExpressioUnius
Est 2 4 ExclusioAlterius does have its limitations.
Courts have held that the maxim should be
disregarded where an expanded interpretation of a
statute will lead to beneficial results or will serve
the purpose for which the statute was enacted. The
general meaning of “Expression of one thing is the
exclusion of another” is also known as The Negative
Implication Rule. This rule assumes that the
legislature intentionally specified one set of criteria
as opposed to the other. Therefore, if the issue to be
 decided addresses an item not specifically named in
the statute, it must be assumed the statute does not
apply.
11. Contemporanea Expositio Contemporanea
expositioest optima et fortissinia in lege:
meaning Contemporaneous exposition is the best
and strongest in law. It is said that the best
exposition of a statute or any other document is that
which it has received from contemporary authority.
This maxim has been confirmed by the Apex Court
in DeshBandhu Gupta vs. Delhi Stock Exchange
Asson. Ltd. AIR 1979 SC 1049, 1054 The maxim
Contemporaneaexpositio as laid down by Lord Coke
was applied to construing ancient statutes, but
usually not applied to interpreting Acts or statutes
which are comparatively modern. The meaning
publicly given by contemporary or long professional
usage is presumed to be true one, even where the
language has etymologically or popularly a different
meaning. It is obvious that the language of a statute
must be understood in the sense in which it was
understood when it was passed, and those who lived
at or near that time when it was passed may
reasonably be supposed to be better acquainted
than their descendants with the circumstances to
 which it had relation, as well as with the sense then
attached to legislative expressions.

5.4 INTERNAL AIDS TO INTERPRETATION

“Internal aids” mean those aids which are available in the
statute itself. Each and every part of an enactment helps in
interpretation. However, it is important to decipher as to
whether these parts can be of any help in the interpretation
of the statute. The Internal aids to interpretation may be as
follows:
a. Title Long title – The Long Title of a Statute is an
internal part of the statute and is admissible as an aid
to its construction. Statute is headed by a long title and
it gives the description about the object of an Act. It
begins with the words- “An Act to ………….” For e.g.
The long title of the Criminal Procedure Code, 1973 is
– “An Act to consolidate and amend the law relating to
criminal procedure
b. Preamble - The main objective and purpose of the Act
are found in the Preamble of the Statute. Preamble is
the Act in a nutshell. It is a preparatory statement. It
contains the recitals showing the reason for enactment
of the Act. If the language of the Act is clear the
preamble must be ignored. The preamble is an
intrinsic aid in the interpretation of an ambiguous act
c. Headings and Title of a Chapter Headings are of
two kinds – one prefixed to a section and other
prefixed to a group or set of sections. Heading is to be
regarded as giving the key to the interpretation and
the heading may be treated as preambles to the
provisions following them.
d. Marginal Notes - Marginal notes are the notes which
are inserted at the side of the sections in an Act and
express the effect of the sections stated. Marginal
notes appended to the Articles of the Constitution have
been held to constitute part of the constitution as
passed by the constituent assembly and therefore they
have been made use of in construing the articles.
e. Definitional Sections/ Clauses - The object of a
definition is to avoid the necessity of frequent
repetitions in describing the subject matter to which
the word or expression defined is intended to apply. A
definition contained in the definition clause of a
particular statute should be used for the purpose of
that Act
f. Illustrations - Illustrations in enactment provided by
the legislature are valuable aids in the understanding
the real scope.
g. Proviso - The normal function of a proviso is to except
and deal with a case which would otherwise fall within
 the general language of the main enactment, and its
effect is confined to that case.
h. Explanations - An Explanation is added to a section to
elaborate upon and explain the meaning of the words
appearing in the section. An Explanation to a statutory
provision has to be read with the main provision to
which it is added as an Explanation.
i. Schedules - Schedules form part of a statute. They are
at the end and contain minute details for working out
the provisions of the express enactment. The
expression in the schedule cannot override the
provisions of the express enactment.
j. Punctuation - Punctuation is a minor element in the
construction of a statute. Only when a statute is
carefully punctuated and there is no doubt about its
meaning can weight be given to punctuation. It cannot,
however, be regarded as a controlling element for
determining the meaning of a statute.”

5.4.1 EXTERNAL AIDS TO INTERPRETATION

When internal aids are not adequate, court has to take
recourse to external aids. The external aids are very
useful tools for the interpretation or construction of
statutory provisions. As opposed to internal aids to
construction there are certain aids which are external to
the statute. Such aids will include parliamentary history
of the legislation, historical facts and surrounding
circumstances in which the statute came to be enacted,
reference to other statutes, use of dictionaries, use of
foreign decisions, etc. Some of the external aids used in
the interpretation of statutes are as follows:
I) Parliamentary History, Historical Facts and
Surrounding Circumstances
Historical setting cannot be used as an aid if the
words are plain and clear. If the wordings are
ambiguous, the historical setting may be considered
in order to arrive at the proper construction.
Historical setting covers parliamentary history,
historical facts, statement of objects and reasons,
report of expert committees. Parliamentary history
means the process by which an act is enacted. This
includes conception of an idea, drafting of the bill,
the debates made, the amendments proposed etc.
Speech made in mover of the bill, amendments
considered during the progress of the bill are
considered in parliamentary history where as the
papers placed before the cabinet which took the
decision for the introduction of the bill are not
relevant since these papers are not placed before
the parliament. The historical facts of the statute
that is the external circumstances in which it was
 enacted in should also be taken into note so that it
can be understood that the statute in question was
intended to alter the law or leave it where it stood.
Statement of objective and reasons as to why the
statute is being brought to enactment can also be a
very helpful fact in the research for historical facts,
but the same if done after extensive amendments in
statute it may be unsafe to attach these with the
statute in the end. It is better to use the report of a
committee before presenting it in front of the
legislature as they guide us with a legislative intent
and place their recommendations which come in
handy while enactment of the bill. The Supreme
Court in a numbers of cases referred to debates in
the Constituent Assembly for interpretation of
Constitutional provisions. For example in India, the
Supreme Court in S.R. Chaudhuri v State of Punjab
and others, (2001) 7 SCC 126 stated that it is a
settled position that debates in the Constituent
Assembly may be relied upon as an aid to interpret a
Constitutional provision because it is the function of
the Court to find out the intention of the framers of
the Constitution.
II) Social, Political and Economic Developments
and Scientific Inventions
A Statute must be interpreted to include
circumstances or situations which were unknown or
did not exist at the time of enactment of the statute.
Any relevant changes in the social conditions and
technology should be given due weightage. Courts
should take into account all these developments
while construing statutory provisions. In the cae of
S.P. Gupta v Union of India, AIR 1982 SC 149, it was
stated - “The interpretation of every statutory
provision must keep pace with changing concepts
and values and it must, to the extent to which its
language permits or rather does not prohibit, suffer
adjustments through judicial interpretation so as to
accord with the requirement of the fast changing
society which is undergoing rapid social and
economic transformation … It is elementary that law
does not operate in a vacuum. It is, therefore,
intended to serve a social purpose and it cannot be
interpreted without taking into account the social,
economic and political setting in which it is intended
to operate. It is here that the Judge is called upon to
perform a creative function. He has to inject flesh
and blood in the dry skeleton provided by the
legislature and by a process of dynamic
interpretation, invest it with a meaning which will
harmonise the law with the prevailing concepts and
 values and make it an effective instrument for
delivery of justice.” Therefore, court has to take into
account social, political and economic developments
and scientific inventions which take place after
enactment of a statute for proper construction of its
provision.
III) Reference to Other Statutes:
In case where two Acts have to be read together,
then each part of every act has to be construed as if
contained in one composite Act. However, if there is
some clear discrepancy then the latter Act would
modify the earlier. Where a single provision of one
Act has to be read or added in another, then it has to
be read in the sense in which it was originally
construed in the first Act. In this way the whole of
the first Act can be mentioned or referred in the
second Act even though only a provision of the first
one was adopted. In case where an old Act has been
repealed, it loses its operative force. Nevertheless,
such a repealed part may still be taken into account
for construing the unrepealed part. For the purpose
of interpretation or construction of a statutory
provision, courts can refer to or can take help of
other statutes. It is also known as statutory aids. The
General Clauses Act, 1897 is an example of statutory
aid. The application of this rule of construction has
 the merit of avoiding any contradiction between a
series of statutes dealing with the same subject, it
allows the use of an earlier statute to throw light on
the meaning of a phrase used in a later statute in
the same context. On the same logic when words in
an earlier statute have received an authoritative
exposition by a superior court, use of same words in
similar context in a later statute will give rise to a
presumption that the legislature intends that the
same interpretation should be followed for
construction of those words in the later statute.
IV) Dictionaries:
When a word is not defined in the statute itself, it is
permissible to refer to dictionaries to find out the
general sense in which that word is understood in
common parlance. However, in the selection of one
out of the various meanings of a word, regard must
always be had to the scheme, context and legislative
history.
V) Judicial Decisions:
When judicial pronouncements are been taken as
reference it should be taken into note that the
decisions referred are Indian, if they are foreign it
should be ensured that such a foreign country
follows the same system of jurisprudence as ours
and that these decisions have been taken in the
 ground of the same law as ours. These foreign
decisions have persuasive value only and are not
binding on Indian courts and where guidance is
available from binding Indian decisions; reference to
foreign decisions is of no use.
VI) Other materials
Similarly, Supreme Court in India used information
available on internet for the purpose of
interpretation of statutory provision in Ramlal v
State of Rajasthan, (2001) 1 SCC 175. Courts also
refer passages and materials from text books and
articles and papers published in the journals. These
external aids are very useful tools not only for the
proper and correct interpretation or construction of
statutory provision, but also for understanding the
object of the statute, the mischief sought to be
remedied by it, circumstances in which it was
enacted and many other relevant matters. In the
absence of the admissibility of these external aids,
sometimes court may not be in a position to do
justice in a case.

Refrences
(a) Evan Bell (2013) Judicial perspectives on
statutory interpretation, Commonwealth Law Bulletin,
39:2, 245-281
https://doi.org/10.1080/03050718.2013.804426
(b) Meagher, D. (2018). The ‘Modern Approach’ to
Statutory Interpretation and the Principle of Legality:
An Issue of Coherence? Federal Law Review, 46(3),
397–425.
https://doi.org/10.1177/0067205X1804600303
(c) Lücke, H. (2005). Statutory Interpretation: New
Comparative Dimensions. The International and
Comparative Law Quarterly, 54(4), 1023-1032.
Retrieved August 7, 2020, from
www.jstor.org/stable/3663412
(d) Baker, J. (1993). Statutory Interpretation and
Parliamentary Intention. The Cambridge Law Journal,
52(3), 353-357. Retrieved August 7, 2020, from
www.jstor.org/stable/4507832
(e) Frank H. Easterbrook, "Text, History, and
Structure in Statutory Interpretation," 17 Harvard
Journal of Law and Public Policy 61 (1994)
(f) https://chicagounbound.uchicago.edu/cgi/
viewcontent.cgi?
article=2169&context=journal_articles
Assessment Questions
2. Analyze the concept of statutory interpretation and
the general principles of interpretation.

TOPIC 6.0

THE COURTS AND THEIR WORK

In this lesson, we shall discuss the hierarchy of Kenyan

Courts, their establishment, composition and jurisdiction in
both civil and criminal matters. The purpose of this lesson is
to equip you with knowledge on hierarchy of Kenyan Courts,
their establishment, composition and jurisdiction in both
civil and criminal matters.

Lesson Learning Outcomes

By the end of this lesson, you will be able to:-
 Analyze the hierarchy of Kenyan courts, the
establishment, composition and jurisdiction.

6.0 INTRODUCTION
The courts have power to hear and determine disputes,
primarily of criminal and civil nature. Criminal cases are
those in which the State prosecutes a person or an
organization for committing an act which is not in the
interest of the public, and therefore considered to be an
offense against the State. Civil cases originate from a
person who seeks redress for a private wrong such as
breach of contract, trespass, and negligence or to enforce
civil remedies such as compensation, damages or to stop
some action.
It is important to understand that various laws establish
various courts. Different laws also regulate their
procedures. The various courts also enjoy different
jurisdictions. By jurisdiction we mean the scope of the
matters that the court may handle. The jurisdiction of the
courts should be understood at various levels.
In Kenya like other Nations in the Continent of Africa before
the European Imperialists established (colonized)
the African territories, the African Traditional Communities
(ATC) used the fora of justice at family, shrines, churches,
mosques. ATC also applied other alternative dispute
resolution mechanisms that included reconciliation,
mediation and arbitration. However, they instituted the
Courts Actions as the last resort, because the people since
time immemorial were aware of the fact that the Court
proceedings were naturally adversarial.
Kenya’s Judiciary has since independence been transformed
from a dual to a unified Judicial system which applies both
English law and African Customary law. Hitherto, there
existed two systems – one for the African native and another
for European settlers. In 1967 three major laws were
enacted. These were
i) The Judicature Act (Chapter 8),
ii) The Magistrates’ Courts Act (Chapter 10), and
iii) The Kadhis Courts Act (Chapter 11) which have
streamlined the administration of justice in Kenya.

These three statutes repealed all other legislations other

than the provisions of in the Lancaster Conference
Constitution, by directing the law that was to be applied by
the Courts. Kenyan law system today is therefore
significantly based on the Constitution of Kenya 2010 and
other Acts of Parliament.
Kenya’s Judiciary discharges its mandate through the
following branches;
a) The Court Systems (structure),
b) The Judicial Service Commission, and
c) The National Council for Law Reporting.
That was the old order before the 2010 Constitution
whereby, the Judiciary was such as the Office of the Chief
Justice which operated as a judicial monarch supported by
the Registrar of the High Court where power and authority
were highly centralized, accountability mechanisms were
weak and reporting requirements were absent.
The Judiciary institution had displayed;
a) Weak structures,
b) Inadequate resources,
c) Diminished confidence,
d) Deficient in integrity,
e) Weak public support, and
f) Literally incapacitated to deliver justice.
The Constitution of Kenya 2010, radically altered ugly State
of Judiciary that had been re-designed by the political
governing regimes to fail. The Chief Justice now is assisted
by Chief Registrar of the Judiciary who is chief
administrator and accounting officer of the Judiciary. Take
note of the change of designation from Registrar of the High
Court to Chief Registrar of the Judiciary.
The Court system has been decentralized with the Supreme
Court and the Court of Appeal having their own Presidents
and the High Court having a Principal Judge as heads of the
respective Institutions. Management Committee composes
of the Chief Justice as Chair, Deputy Chief Justice (DCJ),
President of Court of Appeal, Principal Judge of the High
Court and representatives from the magistracy and the
paralegal fraternity.

There are two levels of courts Superior Court (consist of

Supreme Court, Court of Appeal and High Court) and
Subordinate Courts ( Resident Magistrate Court, Kadhi
Courts, Court Martials, Tribunals, District Magistrate
Courts Classes 1st, 2nd and 3rd.) This structure of the
courts is based on the provisions of the Constitution, the
Magistrates Court Act (Cap. 10), the Kadhis Court Act (Cap.
11) and the Armed Forces Act (Cap. 199) Laws of Kenya.

6.1 HIRARCHY OF COURTS IN KENYA

The Courts in Kenya operate within two levels that is;

i) Superior Courts, and

ii) Subordinate Courts.

The main important aspects when it comes to the Structure

of Courts include;

a) The structure – The hierarchy or levels of Courts.

 b) Establishment – The composition or who presides in
that Court.
c) Jurisdiction – The powers of different Courts to hear
and determine disputes. Jurisdictions are either
Geographical / territorial limits of their powers or
Functional powers (to hear original matter, Appellate
matter or both matters or subject matter (whether it is
civil or criminal justice) or Pecuniary ( the range of
monetary or financial value of subject matter). Kenya’s
system of courts is structured, in descending order,
basically as follows:

1. Supreme Court
2. Court of Appeal
3. High Court (Including employment and labour court
and the environment and land court)
4. Subordinate courts (Magistrates’ courts, Khadi courts
and Courts martial).

6.3 SUPERIOR COURTS

6.3.1 THE SUPREME COURT; COMPOSITION

AND JURISDICTION

The Supreme Court is at the apex in the hierarchy of the

Kenyan court system and hence its decisions are final
and binding. The Supreme Court comprises seven (7)
judges that is;
i) The Chief Justice who is the President of the Court;
ii) The Deputy Chief Justice who is the Vice-President
of the Court;
iii) And 5 other Judges
 The Chief Justice and the Deputy Chief Justice are
appointed by the President but only in accordance
with the recommendation of the Judicial Service
Commission, and subject to the approval of the
National Assembly.
 The jurisdiction of the Supreme Court is well
articulated under the Constitution of Kenya 2010
and specifically Article 163(3).
 The Supreme Court shall have—
(a) Exclusive original jurisdiction to hear and
determine disputes relating to the elections to the
office of President arising under Article 140;
(b) Subject to clause (4) and (5), appellate
jurisdiction to hear and determine appeals from—
(i) The Court of Appeal; and
(ii) Any other court or tribunal as prescribed by
the national legislation.”
 Despite having appellate jurisdiction, the
jurisdiction is not absolute; and it’s only invoked if
the case involves a right if the matter involves the
 interpretation or application of the Constitution; or
a matter where the Court of Appeal or the Supreme
Court suo motu has certified that the matter is one
of public importance.
 Further, Article 163(6), the Supreme Court has
additional jurisdiction on advisory opinions. “163
(6) The Supreme Court may give an advisory
opinion at the request of the national government,
any State organ, or any county government with
respect to any matter concerning county
government.” In Yusuf Gitau Abdalla v. The
Building Centre (K) Ltd & 4 others, Petition
No. 27 of 2014, the duty judge emphasized on the
importance of judicial time “Finally, this matter has
brought to the fore the glaring lacuna in the
Supreme Court Act and Rules. Judicial time is very
precious and should not be wasted by a judge or
judges of the Court sitting at the preliminary stage
to determine whether a matter has met the prima
facie jurisdiction threshold to be admitted to the
Supreme Court ...
 The wheels of justice at the Supreme Court should
not be clogged by matters that should not have
been admitted in the first place.”
6.3.2 THE COURT OF APPEAL; COMPOSITION
AND JURISDICTION
 The Court of Appeal is the 2nd highest court in the
Kenyan court system, after the Supreme Court and
is mostly referred to as the “Appellate court.”
 In terms of composition, Article 164 (2) of the
Constitution provides that; “There shall be a
president of the Court of Appeal who shall be
elected by the judges of the Court of Appeal from
among themselves.” The Constitution of Kenya,
under Article 164, provides that the number of
Judges of Appeal shall not be less than 12 but this
number may be enlarged by an Act of Parliament.

 However, the Judicature Act stipulates that the

maximum number of Court of Appeal judges to be
fourteen (14) in number. (To be Edited)The
jurisdiction of the Court of Appeal is mainly
appellate in nature; it has jurisdictions to hear
appeals from the High Court and any other court or
tribunal as prescribed by an Act of Parliament. The
Court comprises of a President of the Court of
Appeal who is elected by the judges of the Court of
Appeal from among themselves. The Court of
Appeal Judges retire at the age of 74 years (TBE).
 The Appellate Jurisdiction Act, Cap. 9, under section
3(1) & (2) further provides that the Court of Appeal
has jurisdiction to hear and determine appeals from
the High Court in cases in which appeals lie to the
Court of Appeal under law and in addition to any
other power, authority and jurisdiction conferred by
the Act, the power, authority and jurisdiction.

 The Court of Appeal is a superior court of record

therefore it sets precedents. It has limited original
jurisdiction. It was created to hear appeals from the
High court. The only moment the Court Appeal can
have original jurisdiction is in punishment for
contempt of court, and when stating execution of
orders of the High Court.
 The practice and procedure of the court of appeal
are regulated by the rules of court made by the
Rules Committee constituted under the Appellate
Jurisdiction Act (Cap. 9). The Act provides that an
uneven number of at least three judges shall sit for
the determination of any matter by the court. The
decision of the court shall be according to the
opinion of a majority of the judges who sat for the
purposes of determining that matter.
 The court has powers to:

i) Determine a case finally.

ii) Order for a trial.
 iii) Order for a re-trial.
iv) Frame issues for the determination of the High
Court.
v) Receive additional evidence or order that it be
taken by another court.

6.3.3 THE HIGH COURT; JURISDICTION AND

COMPOSITION
 The Constitution of Kenya, under Article 165
empowers the High Court with unlimited original
jurisdiction in criminal and civil matters. In essence,
the court can adjudicate on any matter except those
falling under the exclusive jurisdiction of the Supreme
Court under the Constitution or falling within the
jurisdiction of the courts contemplated in Article 162
(2) that is; the employment and labour relations court
and the environment and land court which have the
same status as the high court.

 The Court has a Principal Judge, who is elected by the

judges of the High Court from among themselves.
 Ordinarily, the High Court is duly constituted by one
Judge sitting alone. However, there are instances
 where two or more High Court Judges may be required
to determine certain kinds of cases.
 The High court also enjoys appellate jurisdiction on
matters of both facts and law from decisions of
subordinate courts made in exercise of their
jurisdiction.
 Article 165(6) of the Constitution further grants the
High Court with supervisory jurisdiction over the
subordinate courts and over any person, body or
authority exercising a judicial or quasi-judicial
function, but not over a superior court.
 Matters of the high court are presided over by judges
appointed by the President with the recommendation
of the Judicial Service Commission.

 There are laid down special qualifications required for

a person to be eligible for appointment as a High Court
Judge, namely:

i) He / she is or has been a Judge of a Court having

unlimited jurisdiction in civil and criminal matters
in some part of the Commonwealth or in Kenya or
a court having jurisdiction in appeals from such a
Court or;
ii) He /she is an Advocate of the High Court of not
less than seven years standing or;
iii) He /she holds and has held for a period of or
periods amounting in aggregate to not less than
 seven years, one or other of the qualifications
specified in Section 12 of the Advocates Act.

 In matters jurisdiction the High Court has;

i) Unlimited original jurisdiction in criminal and
civil matters.
ii) Jurisdiction to determine the question whether a
right or fundamental freedom in the Bill of Rights
has been denied, violated, infringed or
threatened.
iii) Jurisdiction to hear an appeal from a decision of a
tribunal appointed under the Constitution or
national legislation to consider the removal of a
person from office, other than a tribunal
appointed under Article 144.
iv) Jurisdiction to hear any question respecting the
interpretation of this Constitution including the
determination of;
i. The question whether any law is inconsistent
with or in contravention of the Constitution,
ii. The question whether anything said to be
done under the authority of the Constitution
or of any law is inconsistent with, or in
contravention of the Constitution,
iii. Any matter relating to constitutional powers
of State organs in respect of county
governments and any matter relating to the
 constitutional relationship between the
levels of government,
iv. A question relating to conflict of laws under
Article 191, and
v. Any other jurisdiction, original or appellate,
conferred on it by legislation.

v) The High Court does not have jurisdiction in

respect of matters reserved for the exclusive
jurisdiction of the Supreme Court under this
Constitution or falling within the jurisdiction of
the courts contemplated in Article 162 (2).
vi) The High Court has supervisory jurisdiction over
the subordinate courts and over any person, body
or authority exercising a judicial or quasi-judicial
function, but not over a superior court. Also being
a Superior court of record means that the
decisions of the High Court as precedents, are
binding on the subordinate courts by the doctrine
of stare decisis.
vii) Although High Court has unlimited original
jurisdiction in civil and criminal cases in actual
practice, it will hear those criminal cases which
cannot be tried by the subordinate courts i.e.
murder and treason whereas in civil cases, it has
jurisdiction where the value of the subject matter,
in dispute exceeds Kshs. 500,000.00. The High
 Court has power to pass any sentence authorized
by law.
viii) In addition to the ordinary civil and criminal
jurisdiction or the High Court, there are other
matters, which can only be heard by the High
Court. Thus, the High Court enjoys special powers
and jurisdiction in the following matters as
conferred to it by the constitution and other
legislations some of which are given hereinafter.

6.3.3.1 HIGH COURT SPECIAL POWERS

1. Supervisory Jurisdiction
The Constitution confers specific, powers on the High Court
to exercise supervisory jurisdiction in any civil and criminal
proceedings before subordinate courts and may make such
orders, issue such writs and give such directions as may
consider appropriate for the purpose of ensuring that
justice is duly administered by such courts. This includes
the power of the High Court to transfer proceedings from
one court to the other.

To invoke the supervisory jurisdiction of the High Court a

person must have exhausted all other available remedies
and right of appeal. In exercise of its supervisory powers
under judicial review, the high court may issue any of the
prerogative orders of:
 Mandamus – The literal meaning of mandamus is
“we command”. This is an Order issued by the High
Court to any person or body commanding him or
them to perform a public duty imposed by law or
state. The order is available to compel
administrative tribunals to do their duty e.g. to
compel a licensing board to issue a license on
application of him who has met the prescribed
criteria.
 Certiorari – The term means to “be informed”. This
is an Order issued by the High Court directed at an
inferior court body exercising judicial or quasi-
judicial functions to have the records of the
proceedings presented to the High Court for the
purposes: To Secure an impartial trial, To review an
excess of jurisdiction, To challenge an ultra vires
act, To correct errors of law on the face of the
record. To quash a judicial decision made against
the rules of natural justice. An order of certiorari
will be wherever anybody of persons having legal
authority to determine questions affecting the rights
and having a duty to act judicially, acts in excess of
their legal authority. It therefore serves to quash
what has been done irregularly.
 Prohibition – This is an order issued by the High
Court to prevent an inferior court or tribunal from
 hearing or continuing to hear a case either In excess
of its jurisdiction or in violation of the rules of
natural justice.
 Writ of Habeas corpus – Harbeas corpos means
„produce the body‟, dead or alive. This order is
issued where the personal liberty of a person is
curtailed by arrest and confinement without legal
justification. By issuing this order, the High Court
calls upon the person holding the body to answer by
what authority are they continuing to withhold the
individual and with the aims at securing release of
such persons held apparently without legal
justification.

2. Interpretation of the Constitution

The Constitution provides that where any question as to the
interpretation of the constitution arises in any proceedings
in any subordinate court, and the court is of the opinion that
the question involves a substantial question of law, the
court may, and shall if any party to the proceedings so
requests, refer the question to the High Court. The High
Court shall be composed of an uneven number of judges,
not being less than three when it determines the
constitutional question referred to it. The decision of the
High Court is binding on the Court that referred the
question to the High Court and it must dispose of the case
in accordance with the High Court’s decision.

3. Admiralty Jurisdiction
Section 4 of the Judicature Act Chapter 8 (1967) provides
that, the High Court will act as a court of admiralty and will
decide “matters arising on the high seas or in territorial
waters or upon any lake or other navigable inland waters in
Kenya”. The law applicable to be exercised “the conformity
with international law and the comity of nations”.

4. Election Jurisdiction
Under the National Assembly and Presidential Election Act,
the High court has special powers to hear and determine
disputes arising from the national electoral process. The
High Court may make an order as it deems fit, including the
nullification of the election results upon hearing of a
petition presented to it by a voter or loser in the election.

For the High Court to nullify the election of a Member of

Parliament, the petitioner must prove that an election
offence has been committed. The composition of the High
court is that one (1) Judge sits to determine dispute in
parliamentary election while Three (3) Judges must sit if it
is presidential election. Any appeal on the High Court
decision on Presidential election goes to the Court of Appeal
where at least five (5) Judges will sit to determine the
appeal. Disputes in the election of councilors go to
subordinate courts.

5. Succession/Probate Jurisdiction
The Probate Division of the High court has jurisdiction to
hear any application and determine any dispute and
pronounce such decree and issue such orders as my be
expedient in inheritance matters e.g. the High Court may
issue probate i.e. a person has been validly appointed by a
will to administer the property of the deceased.

6. Matrimonial Cases
The court exercises jurisdiction in divorce matters. In
exercise of its matrimonial jurisdiction, the High Court may
issue orders for:

a) Dissolution of marriage.
b) Nullity of marriage.
c) Separation and maintenance (alimony).
d) Custody, adoption and guardianship of
infants.
e) Spousal Property and financial adjustments
etc.

7. Other powers
 To protect and enforce Fundamental rights and
Freedoms of individuals which are set out in
 Chapter Four of the Constitution also otherwise
referred to as Bill of Rights.
 To hear and determine Bankruptcy proceedings.
 To supervise winding up of dissolved companies.

6.4 SUBORDINATE COURTS JURISDICTION

AND COMPOSITION

 The subordinate courts are essentially a ‘court of first

instance’ as most matters find their inception in the
lower courts. The subordinate courts are established
under Article 169 of the constitution and are presided
over by Magistrates gazetted by the Chief Justice.
 The hierarchy of these courts, in descending order,
are:
a) Chief Magistrate,
b) Senior Principal Magistrate,
c) Principal Magistrate,
d) Senior Resident Magistrate,
e) Resident Magistrate and
f) District Magistrate.
 Subordinate Courts also include Courts-Martial and
Kadhi Courts andall matters from subordinate courts
can be appealed to the High court.
6.4.1 Court Martial
 This is a subordinate court established under the
Armed Forces Act, Cap. 199.
 The court’s jurisdiction is limited to matters of
discipline of members of Kenya’s armed forces.
 A court martial is not permanent in nature and is only
constituted to deal with a specific matter such as
insubordination, cowardice, fraud, theft, aiding an
enemy and neglect of duty.

6.4.2 Kadhi Courts

 This is also another special subordinate court. Article
170(5) of the Constitution stipulates that the
jurisdiction of a Kadhis’ court is limited to the
determination of questions of Muslim law relating to
personal status, marriage, divorce or inheritance in
proceedings in which all the parties profess the Muslim
religion and submit to the jurisdiction of the Kadhi’s
courts.

6.5 APPOINTMENT OF JUDGES IN KENYA

Appointment of judges under the Kenyan Constitution is
stipulated under Article 166 of the Constitution which
stipulates that,
The President shall appoint--

(a) the Chief Justice and the Deputy Chief Justice, in

accordance with the recommendation of the Judicial
Service Commission, and subject to the approval of
the National Assembly; and
(b) all other judges, in accordance with the
recommendation of the Judicial Service Commission.

(2) Each judge of a superior court shall be appointed

from among persons who--

(a) hold a law degree from a recognized university, or

are advocates of the High Court of Kenya, or possess
an equivalent qualification in a common-law
jurisdiction;
(b) possess the experience required under clause (3)
to (6) as applicable, irrespective of whether that
experience was gained in Kenya or in another
Commonwealth common-law jurisdiction; and
(c) have a high moral character, integrity and
impartiality.

(3) The Chief Justice and other judges of the Supreme

Court shall be appointed from among persons who have--

(a) at least fifteen years experience as a superior

court judge; or
(b) at least fifteen years’ experience as a
distinguished academic, judicial officer, legal
 practitioner or such experience in other relevant legal
field; or
(c) held the qualifications specified in paragraphs (a)
and (b) for a period amounting, in the aggregate, to
fifteen years;

(4) Each judge of the Court of Appeal shall be appointed

from among persons who have--

(a) at least ten years’ experience as a superior court

judge;
or
(b) at least ten years’ experience as a distinguished
academic or legal practitioner or such experience in
other relevant legal field; or
(c) held the qualifications mentioned in paragraphs
(a) and (b) for a period amounting, in the aggregate,
to ten years.

(5) Each judge of the High Court shall be appointed from

among persons who have--

(a) at least ten years’ experience as a superior court

judge or professionally qualified magistrate; or
(b) at least ten years’ experience as a distinguished
academic or legal practitioner or such experience in
other relevant legal field; or
(c) held the qualifications specified in paragraphs (a)
 and (b) for a period amounting, in the aggregate, to
ten years.

6.5.1 REMOVAL OF JUDGES

Removal of judges under the Kenyan Constitution is
stipulated under Article 168 of the Constitution which
stipulates that,
(1) A judge of a superior court may be removed from
office only on the grounds of--

(a) inability to perform the functions of office arising

from mental or physical incapacity;
(b) a breach of a code of conduct prescribed for
judges of the superior courts by an Act of Parliament;
(c) bankruptcy;
(d) incompetence; or
(e) gross misconduct or misbehaviour.

(2) The removal of a judge may be initiated only by the

Judicial Service Commission acting on its own motion, or
on the petition of any person to the Judicial Service
Commission.
(3) A petition by a person to the Judicial Service
Commission under clause (2) shall be in writing, setting
out the alleged facts constituting the grounds for the
judges removal.
(4) The Judicial Service Commission shall consider the
petition and, if it is satisfied that the petition discloses a
ground for removal under clause (1), send the petition to
the President.
(5) The President shall, within fourteen days after
receiving the petition, suspend the judge from office and,
acting in accordance with the recommendation of the
Judicial Service Commission--

(a) in the case of the Chief Justice, appoint a tribunal

consisting of--

(i) the Speaker of the National Assembly, as

chairperson;
(ii) three superior court judges from common-law
jurisdictions;
(iii) one advocate of fifteen years standing; and
(iv) two other persons with experience in public
affairs; or

(b) in the case of a judge other than the Chief Justice,

appoint a tribunal consisting of--

(i) a chairperson and three other members from

among persons who hold or have held office as a
judge of a superior court, or who are qualified to
be appointed as such but who, in either case, have
not been members of the Judicial Service
Commission at any time within the immediately
preceding three years;
 (ii) one advocate of fifteen years standing; and
(iii) two other persons with experience in public
affairs.

(6) Despite Article 160 (4), the remuneration and

benefits payable to a judge who is suspended from office
under clause (5) shall be adjusted to one half until such
time as the judge is removed from, or reinstated in,
office.
(7) A tribunal appointed under clause (5) shall--

(a) be responsible for the regulation of its

proceedings, subject to any legislation contemplated
in clause (10);
and
(b) inquire into the matter expeditiously and report
on the facts and make binding recommendations to
the President.

(8) A judge who is aggrieved by a decision of the tribunal

under this Article may appeal against the decision to the
Supreme Court, within ten days after the tribunal makes
its recommendations.
(9) The President shall act in accordance with the
recommendations made by the tribunal on the later of --

(a) the expiry of the time allowed for an appeal under

clause (8), if no such appeal is taken; or
(b) the completion of all rights of appeal in any
 proceedings allowed for under clause (8), if such an
appeal is taken and the final order in the matter
affirms the tribunal’s recommendations.

(10) Parliament shall enact legislation providing for the

procedure of a tribunal appointed under this Article.

6.6 INDEPENDENCE OF THE JUDICIARY

In 2010, Kenya adopted a new constitution. The background
was gruesome post-election violence in 2007/08, when
members of different ethnic groups had turned on one
another. The new constitution was designed to reconcile a
deeply divided nation. One of the instruments for doing so is
a strong and independent judiciary.
Since colonial times, Kenya’s law courts had previously
mostly toed the government’s line. The new constitution has
changed expectations, and efforts have since been made to
ensure the courts’ independence. The reform process has
gone on slowly but decisively for several years. It is radical
and costs a lot of money.
Independence of the Judiciary is recognized under the
Kenyan Constitution and is stipulated under Article 160 of
the Constitution which stipulates that,
(1) In the exercise of judicial authority, the Judiciary,
as constituted by Article 161, shall be subject only to
this Constitution and the law and shall not be subject
to the control or direction of any person or authority.
 (2) The office of a judge of a superior court shall not be
abolished while there is a substantive holder of the
office.

(3) The remuneration and benefits payable to or in

respect of judges shall be a charge on the Consolidated
Fund.

(4) Subject to Article 168(6), the remuneration and

benefits payable to, or in respect of, a judge shall not
be varied to the disadvantage of that judge, and the
retirement benefits of a retired judge shall not be
varied to the disadvantage of the retired judge during
the lifetime of that retired judge.

(5) A member of the Judiciary is not liable in an action

or suit in respect of anything done or omitted to be
done in good faith in the lawful performance of a
judicial function.

6.7 SEPARATION OF POWERS: RELATIONSHIP

OF JUDICIAL POWERS WITH THE EXECUTIVE
AND LEGISLATURE
The doctrine of the separation of powers requires that the
principal institutions of state executive, legislature and
judiciary should be clearly divided in order to safeguard
citizens’ liberties and guard against tyranny.
One of the earliest and clearest statements of the
separation of powers was given by French social
commentator and political thinker Montesquieu in 1748;
‘When the legislative and executive powers are
united in the same person, or in the same body of
magistrates, there can be no liberty... there is no
liberty if the powers of judging is not separated
from the legislative and executive... there would
be an end to everything, if the same man or the
same body... were to exercise those three powers.’
According to a strict interpretation of the separation of
powers, none of the three branches may exercise the power
of the other, nor should any person be a member of any two
of the branches.1 By creating separate institutions it is
possible to have a system of checks and balances between
them.
Judicial independence is vital to the maintenance of the rule
of law and to democracy. The principal of judicial
independence requires the protection of the environment
within which judges operate, so that they are immunized
against direct political interference, whilst also observing
that Parliament does have a legitimate interest in the
substance of the law and the efficient and effective
operation of the court system. Judges are expected to
interpret legislation in line with the intention of Parliament
and are also responsible for the development of common
law: statutory laws are written laws passed by legislature
and government of a country; common law, also known as
case law, is law that has been developed in judgments made
by judges over hundreds of years.
Van der Vyver, borrowing from Montesquieu, is of the
opinion that separation of powers is composed of the
following principles;
i) The principle of triaspolita, requiring a
formal distinction between the legislature,
executive and judicial branches.
ii) The principle of personnel according to
which the same people should not be
allowed to serve more than one branch of
the government at the same time.
iii) Separation of functions between the three
branches to avoid one interfering with or
assuming the roles of the other.
iv) The principle of checks and balances that
requires that each organ be entrusted
with special powers designed to serve as
checks on the exercise of functions by the
others in order to come to an equilibrium.
With the promulgation of the Constitution of Kenya in 2010
there came clearer the separation of powers from the
previous more powerful constitutional dispensation that had
a President had unfettered powers to influence the
Legislature and Judiciary. It was also augmented that Kenya
had presidential absolutism. The people of Kenya delegate
their sovereign power under the constitution to the
Legislature, Executive and the Judiciary at both national
and county levels.
The constitution captures the principles elucidated by Van
der Vyver, as have been described in the previous section.
As regards formal distinction and precision of functions, the
constitution is clear in Article 1(3) that the sovereign power
of the people is delegated to the Legislature, Executive and
Judiciary and goes on further to assign their functions.
Chapter 8 of the same constitution deals with the
Legislature that derives its legitimacy from the people. The
constitution is further very categorical that, ‘no person or
body, other than Parliament, has the power to make a
provision having the force of law in Kenya except under
authority conferred by this constitution or by legislation.’ It
thus solely places the law-making function in the legislative
arm.
The functions of the Executive are not easily pointed out
and some scholars have argued that its functions are merely
the residue of the functions of government after legislative
and judicial functions have been carved out. That
notwithstanding, chapter nine of the constitution has
outlined the functions of the Executive, constraining itself to
the narrow understanding of the Executive by looking at the
different functions of the President, the Deputy President
and the Cabinet.
Judicial authority refers to the powers vested in a tribunal
to decide authoritatively and conclusively disputes between
subjects of the State, or between the State and its subjects.
This judicial authority is derived from the people and is
vested in the courts and tribunals established by the court.
In addition to the key guiding principle the courts and
tribunals should consider, vital provisions of safeguarding
independence of the Judiciary are provided. They include
security of tenure, and remuneration as well as the proviso
that the Judiciary is only subject to the constitution and the
law and not subject to the control or direction of any person
or authority.

REFRENCES
Read material on these links
(a) Constitution of Kenya 2010
http://kenyalaw.org:8181/exist/kenyalex/actview.xql?
actid=Const2010
(b) AlphonceShiundu, Long road to independence
 https://www.dandc.eu/en/article/kenya-has-made-
progress-towards-judicial-independence-new-
constitution-promises
(c) Wilson Shadrack Owuor, The Independence of the
Judiciary in Kenya: An Analysis 0f Presidential Election
Petitions Pre and Post 2010
https://pdfs.semanticscholar.org/b3ab/
e914708d88b583b28f5ecf1b081ff7133707.pdf
(d) Gondi J (ed.) Reflections on the 2017 Elections in
Kenya (International Commission of Jurists – Kenya
Section, Nairobi), Publisher: ICJ-Kenya, pp.pp. 5-32
https://www.researchgate.net/publication/331399230_
The_State_of_Judicial_Independence_in_Kenya_-
_Reflections_from_the_2017_Presidential_Election_Peti
tions
(e) http://kenyalaw.org/kl/index.php?id=1926
(f) https://press.strathmore.edu/uploads/journals/
strathmore-law-review/SLR1/1SLR1-12%20A
%20Perspective%20on%20the%20Doctrine%20of
%20Separation%20of%20Powers%20Based%20on
%20the%20Response%20to%20Courrt%20Orders
%20in%20Kenya%20by%20Emmanuel%20Kibet
%20and%20Kimberly%20Wangeci.pdf
(g) Constitution of Kenya 2010. Retrieved from
http://kenyalaw.org:8181/exist/kenyalex/actview.xql?
actid=Const2010
(h) Supreme Court Act No.7 of 2011 Laws of Kenya.
Retrieved from
http://kenyalaw.org:8181/exist/kenyalex/actview.xql?
actid=No.%207%20of%202011
(i) Court of Appeal (Organization and Administration)
ActNo. 28 0f 2015 Laws of Kenya. Retrieved from
http://kenyalaw.org:8181/exist/kenyalex/actview.xql?
actid=No.%2028%20of%202015
(j) High Court (Organization and Administration) Act No.
27 of 2015 Laws of Kenya. Retrieved from
http://kenyalaw.org:8181/exist/kenyalex/actview.xql?
actid=No.%2027%20of%202015
(k) Employment and Labour Relations Court Act No.
20 of 2011 Laws of Kenya. Retrieved from
http://kenyalaw.org:8181/exist/kenyalex/actview.xql?
actid=No.%2020%20of%202011
(l) Environment and Land Court Act No. 19 of 2011 Laws
of Kenya. Retrieved from
http://kenyalaw.org:8181/exist/kenyalex/actview.xql?
actid=No.%2019%20of%202011
(m) Magistrates’ Courts Act No. 26 of 2015 Laws of
Kenya. Retrieved from
http://kenyalaw.org:8181/exist/kenyalex/actview.xql?
actid=No.%2026%20of%202015
(J) GradesFixer. (2018). The Hierarchy of Kenya’s Courts.
Retrieved from https://gradesfixer.com/free-essay-
examples/the-hierarchy-of-kenyas-courts/

Topic 7.0

THE DOCTRINE OF JUDICIAL PRECEDENTS

In this lesson you shall learn about;
a) The concept of precedent Stare decisis (following
decisions) or stare dictis (following principles) and its
advantages and disadvantages.
b) We shall also discuss the judges as law makers,
c) Classification of precedents – binding, persuasive, and
d) Finally, on the avoiding precedent that is to say when
precedent can be ignored.
The purpose of this lesson is to ensure that you understand
the concept of precedent Stare decisis, its advantages and
disadvantages.

7.0 DOCTRINE OF JUDICIAL PRECEDENT

Judicial precedent or decisions is a process which is
followed by the judges to take the decision. In Judicial
precedent, the decision is taken by following the similar
cases happened in the past. So judicial decision is based on
the principle of stare decisis that is stand by the decision
already made.
There is a term called the doctrine of stare decisis which
states that the court’s decision becomes a precedent to be
followed in future cases of a similar nature. The reason why
a precedent is recognized is that the verdict of the judiciary
is assumed to be correct. The use of precedents helps the
litigant gain confidence in the judicial system. The
administration of the judicial decision becomes just and fair.

7.1 General Principle of Doctrine of Judicial

Precedent
There are two rules that apply to the doctrine of judicial
precedents:-
i) The first rule says that a court which is lower in a
hierarchy is completely bound by the decisions of
courts which are above it.
ii) The second rule states that higher courts are bound
by their own decision in general in matters of
related to precedence.
Precedents have also been defined by eminent jurists
as:
 Gray’s definition: “ Precedent is everything said
or done in a judgement which furnishes a rule for
subsequent practice.”
 Jenk’s definition: “Precedent is a decision by a
competent court upon a disputed point of law
which becomes a guide and authority to be
followed by all courts.”
Precedents as defined under the various dictionaries:
 Oxford dictionary definition: “ A previous
instant or case which may be taken as an example
of rule for subsequent cases is a precedent.”
 Black’s dictionary definition: “ A precedent is a
rule of law established for the first time by a court
for a particular type of case, thereafter referred
to in similar cases.”

7.2 TYPES OF JUDICIAL PRECEDENT

1. Declaratory and Original Precedents

As John William Salmon explained, a declaratory precedent is
one where there is only application of an already existing rule
in a legal matter.These precedents are mostly used to
declare or apply existing rules and judicial decisions.
Whereas, an original precedent is one where a new law is
created and applied in a legal matter. Original precedents
are responsible for the creation of new laws. These
precedents establish or create law. These precedents are
mostly formed when no past reference is available for a
particular source of law. The judges come to an analogy
when they have to form original precedents.

2. Persuasive Precedents

A persuasive precedent is a type of precedent where the

judge is not required to follow the precedent in a legal matter
but will take the precedent heavily into consideration.
So, a persuasive precedent is not a direct source of law but is
considered a historical source of law. In India, the decisions
of one high court can act as persuasive precedents in other
high courts.

3. Absolutely Authoritative Precedents

In an absolutely authoritative precedent, the judges have to

compulsorily follow the judicial decision of the precedent in a
case of law.In other words, even if the judge finds the
precedent to be a wrong judgment, he is legally bound to
give the same judicial decision.
For e.g. – Every court in Kenya is absolutely bound by
decisions of courts superior to itself because of hierarchy.
4. Conditionally Authoritative Precedents

A conditionally authoritative precedent is one where

generally the precedent is absolutely authoritative but in
certain special circumstances, like a supreme court decision,
it can be disregarded. The court can disregard the decision if
it is a wrong decision, or goes against the law and reason.

7.3 THE DOCTRINE OF STARE DECISIS

"Stare decisis" is an abbreviation of the Latin phrase
"stare decisis et non quieta movere" which translates as
"to stand by decisions that are already settled and not
to disturb those settled matters". Hence “Stare decisis”
literally means "to stand by decided matters”.
Stare decisis is a policy adopted by the court to stand by a
precedent. The word "decisis” means ‘the decision’. Under
the doctrine of stare decisis, the decision of the court for a
case is only what is important and not the real facts and
proceedings of the case. In other words, it is the ‘what’ of a
case which is important and not the ‘how’ and ‘why’.
The principle of stare decisis can be divided into two
components or principles;
i) The first is the rule that a decision made by a higher
court is binding precedent which a lower court
cannot overturn.
ii) The second is the principle that a court should not
overturn its own precedents unless there is a strong
 reason to do so and should be guided by principles
from lateral and lower courts. The second principle
is an advisory one which courts can and does
occasionally ignore.

Basically, under the doctrine of stare decisis, the

decision of a higher court within the same provincial
jurisdiction acts as binding authority on a lower court
within that same jurisdiction.
The decision of a court of another jurisdiction only acts as
persuasive authority. The degree of persuasiveness is
dependent upon various factors, including,
a) First, the nature of the other jurisdiction.
b) Second, the degree of persuasiveness is
dependent upon the level of court which
decided the precedent case in the other
jurisdiction.
c) Other factors may include the date of the
precedent case, on the assumption that the
more recent the case, the more reliable it
will be as authority for a given proposition,
although this is not necessarily so.

Glanville Williams in Learning the Law (9th ed. 1973),

describes the doctrine in simple terms stating that;
“What the doctrine of precedent declares is that
cases must be decided the same way when their
material facts are the same. Obviously, it does not
 require that all the facts should be the same. We
know that in the flux of life all the facts of a case
will never recur, but the legally material facts
may recur and it is with these that the doctrine is
concerned.”
The ratio decidendi [reason of deciding] of a case can be
defined as the material facts of the case plus the decision
thereon. The same learned author who advanced this
definition went on to suggest a helpful formula.
Suppose that in a certain case facts A, B and C exist, and
suppose that the court finds that facts B and C are material
and fact A immaterial, and then reaches conclusion X (e.g.
judgment for the plaintiff, or judgment for the defendant).
Then the doctrine of precedent enables us to say that in any
future case in which facts B and C exist, or in which facts A
and B and C exist the conclusion must be X. If in a future
case A, B, C, and D exist, and the fact D is held to be
material, the first case will not be a direct authority, though
it may be of value as an analogy.
Case 1 Future Case 2 Future
Case 3
A-Immaterial fact B- Material and fact A-
Immaterial Fact
B- Material and fact C – Material and fact B-
Material Fact
C- Material and fact C-
Material Fact
D- Material
Fact
DECISION – X Decision X
Decision not direct x
(X only a point of
reference)
For stare decisis to be effective, each jurisdiction must have
one highest court to declare what the law is in a precedent-
setting case. In Kenya, The Supreme Court of Kenya is the
supreme authority in legal matters as it is the highest
judicial body and the cases decided by it form the precedent
for all the other courts in Kenya; it includes the Court of
Appeal, the High Court, Magistrate Courts, District Courts
and the other lower Courts.
The Supreme Courts of Kenya serves as the precedential
body, resolving conflicting interpretations of law. Whatever
this court decides becomes judicial precedent.
The United States Court of Appeals for the Ninth Circuit
observed that;
“For the system of precedents to work effectively there are
three elements that are very important to be present in the
legal system of that country.
 a) First, there needs to be an undisputed and accepted
hierarchy of courts with one court having the supreme
authority over all the other courts of the land.
b) The second is the presence of an efficient law or case
reporting system, and
c) The third element is to strike a balance between the
need of having consistency and certainty in legal
matters resulting from following the previously
decided binding cases and on the other hand to avoid
the restricting effect on the development of law by
following such a method.”

7.3.1 WHAT IS THE BINDING ELEMENT

OFACASE?
What is binding on the lower court is that, every
judgment contains four major elements which include;
 Statement of material (relevant) facts,
 Statement of legal principle(s) material to the
decision - the ratio decidendi,
 Discussion of legal principles raised in argument
but not material to the decision - obiter dicta, and
 The decision or verdict.

It is not the entire judgement that is binding on the lower

courts but only the ratio decidendi. The ratio decidendi
of a case is the underlying principle or legal reason on
which the result of the case depends.
This ratio is different from the obiter dicta which is not
held to be binding but may be regarded as having
persuasive control,and what we are concerned with is not
who won or lost but the legal principles that can be
extracted from the case which is known as the ratio
decidendi.
In the words of the Supreme Court of India which opined
that;"A decision is binding not because of its
conclusion but in regard to its ratio and the principle
laid down therein."
7.3.2 ADVANTAGES AND DISADVANTAGES OF
THE DOCTRINE OF JUDICIAL PRECEDENTS
There are both advantages and disadvantages in following
the method of precedents in deciding cases and they
advantages include;
i) The most significant advantage is the element of
consistency and certainty that is brought in with the
application of precedents. A good decision-making
process must be consistent. Similar cases must be
decided similarly to avoid inconsistency. Consistency
is perhaps the most important advantage claimed for
the doctrine of judicial precedent. It may also allow
persons generally to order their affairs and come to
settlements with a certain amount of confidence.
ii) The interests of justice also demand impartiality
from the judge. In this method the Judges have clear
cases to follow. This is assured by the existence of a
binding precedent, which he must follow unless it is
distinguishable. If he tries to distinguish an
indistinguishable case his attempt will be obvious.
And hence this method ensures impartiality from the
judge.
iii) Case law is practical in character. It is based on the
experience of actual cases brought before the courts
rather than on logic or theory. Case laws are viable
statute law and the rules and principles are derived
from everyday life. This means that it should work
effectively and be intelligible and is thus practical. It
removes any element of ambiguity regarding the
authority of the binding precedents and enables
lower courts to follow the decisions of higher courts
unanimously.
iv) The making of law in decided cases offers
opportunities for growth and legal development,
which could not be provided by Parliament. The
courts can more quickly lay down new principles, or
extend old principles, to meet novel circumstances.
There has built up over the centuries a wealth of
cases illustrative of a vast number of the principles
of English law.
v) Further, the hierarchy of the courts ensures that
lower courts follow higher courts and this leads to
an orderly development of law. It is also a
convenient timesaving method. If a problem has
already been answered, it is natural to reach the
same conclusion by applying the same principle.
vi) It also helps save unnecessary litigation. The
existence of a precedent may prevent a judge
making a mistake that he might have made if he had
been left on his own without any guidance. The
doctrine of precedent may serve the interests of
justice. It would be unjust to reach a different
decision in a similarly situated case

Although a number of advantages are evident here are

some of the disadvantages of precedents and they
include;
i) The most evident disadvantage of this method is the
rigidity it confers on the development of law. The
doctrine of stare decisis is a limiting factor in the
development of judge-made law. Practical law is
founded on experience but the scope for further
experience is restricted if the first case is binding.
ii) The cases exemplify the law in great detail, therein
lies another weakness of case law. It is in bulk and
its complexity makes it increasingly difficult to find
the law. There are so many cases that it is hard for
 judges to find relevant cases and the reasoning may
not be clear. The convenience of following precedent
should not be allowed to degenerate into a mere
mechanical exercise performed without any thought.
iii) Judicial mistakes of the past are perpetuated unless
bad decisions happen to come before the court of
appeal for reconsideration. A system that was truly
flexible could not at the same time be certain
because no one can predict when and how legal
development will take place. However, the
advantage of certainty is lost where there are too
many cases or they are too confusing.
iv) The overruling of an earlier case may cause injustice
to those who have ordered their affairs in reliance
on it.
v) Precedent may produce justice in the individual case
but injustice in the generality of cases. It would be
undesirable to treat a number of claimants unjustly
simply because one binding case had laid down an
unjust rule.

7.3.3 AVOIDING PRECEDENTS (WHEN

PRECEDENTS CAN BE IGNORED)
1. DISTINGUISHING
This is the main criterion that judges use in all
Courts to avoid precedents. It is basically
 distinguishing one case from another as not being
same and the facts of the case being different.
Hence, once arriving at this juncture it means
that the case will not be bound by the existing
precedent thus creates a new binding precedent.
Thus, the previous precedent remains binding to
Cases of similar fact.

Example: Balfour v Balfour (1919) – the Court of Appeal

decided than an agreement made between a husband and
wife for him to pay her £30 a month was not a legally
binding agreement that could be enforced by the courts –
there was a principle that unless otherwise stated,
agreements between husband and wife are not intended to
be legally binding. The wife failed in her claim

Merritt v Merritt(1971) – a husband and wife had

separated and he agreed that he would sign over the
matrimonial home if she continued to pay the mortgage.
She did but he refused to sign it over. He relied on B v B,
claiming that their agreement was not legally binding. The
court distinguished B v B and disagreed with is argument
stating that because they had already separated, they had
intended to create a legally binding contract. This was a
new and distinct precedent, which now exists alongside B v
B.
Evans v Triplex Safety Glass Ltd
(1936)distinguishingDonoghue v Stevenson (1932)
E v T – claimant sued car manufacturer for shattered car
windscreen. The court distinguished D v S and di not hold
the manufacturer liable. In D v S there was no chance for
anybody to tamper with the product before it reached the
customer, unlike in E v T.

2. REVERSING
This is similar to overruling, and it occurs when a higher
Court does not follow a precedent set by a lower Court in a
similar case. It is basically whereby an appeal would reach
the opposite decision to that of a lower Court.The superior
court may BLANK/change the previous decision of a lower
court. This creates a new precedent that is binding on lower
courts.
Example: In Fitzpatrick v. Sterling House Association
Ltd (2000) the Court of Appeal refused to allow the
Homosexual partner of the deceased tenant to take over
the Tenancy as he could not be described as family required
under the Rent Act 1977.
The House of Lords reversed the decision and held that he
could on the principle that same-sex partner could prove the
familial link as required by he Legislation.

3. DISAPPROVING
A judge may refuse to follow an earlier judgement of
another judge in the same court. This includes precedents
that the court is bound to follow.This is not a method of
avoiding precedents but rather a mechanism which
facilitates a departure from a precedent in a future case.
Thereby, when a judge disapproves a precedent, he/she
makes clear that they believe its wrong. Hence, these
disapproving comments are persuasive and may be followed
by judges in future cases.
Example:Anns v Merton London Borough Council
(1978) – ratio decidendi of the House of Lords was that
purchasers of defective buildings could recover
compensation from local authorities when the defects were
due to negligent inspections by the authority during
construction. Murphy v Brentwood District Council
(1990) – This case overruled the decision as the original
decision was heavily disapproved.

4. OVERRULING
A superior court may decide not to follow the existing
precedent set in a lower court and may BLANK/change it.
This creates a new precedent that is binding on lower
courts.This is when a higher court does not follow a
precedent set in a previous case, either by a lower court or
by itself. An example is the House of Lords in Hedley
Byrne v Heller and Partners (1964) overruling the
Court of Appeal in Candler v Crane Christmas (1951)
when the Court held that there can be liability for making a
negligent mis-statement.
Refrences
(a) Charles W. Collier, Precedent and Legal
Authority: A Critical History, 1988 Wis. L. Rev. 771
(1988), available at
http://scholarship.law.ufl.edu/facultypub/675
(b) Holland, James & Webb, Julian. (2019). 6. The
Doctrine of Judicial Precedent.
https://www.researchgate.net/deref/http%3A%2F
%2Fdx.doi.org%2F10.1093%2Fhe
%2F9780198799900.003.0006
(c) McLeod I. (1993) An Introduction to the Doctrine
of Binding Precedent. In: Legal Method. Macmillan
Professional Masters. Palgrave, London.
https://doi.org/10.1007/978-1-349-13153-2_9
(d) (2005) Precedent. In: Roversi C. (eds) A Treatise
of Legal Philosophy and General Jurisprudence.
Springer, Dordrecht. https://doi.org/10.1007/1-4020-
3505-5_26
(e) John T. Loughran, Some Reflections on the Role of
Judicial Precedent, 22 Fordham L. Rev. 1 (1953).
Available at:
https://ir.lawnet.fordham.edu/flr/vol22/iss1/1
 (f) Reid, Charles J., Judicial Precedent in the Late
Eighteenth and Early Nineteenth Centuries: A
Commentary on Chancellor Kent's Commentaries
(2006). U of St. Thomas Legal Studies Research Paper
No. 06-28, Available at SSRN:
https://ssrn.com/abstract=923220
Assessment Questions
1. Analyze the concept Doctrine of Judicial Precedent.
Topic 8.0
CASE METHOD
8.0 THE JUDGEMENT – OUTLINE AND PARTS
Judgement may be defined as the expression of the
determination that a trier/finder of facts has come to on the
application of the applicable/relevant law upon the facts
proven to the required standard.

In other words, it may be stated as the statement of the

conclusions that flow from the application of the governing
law to the facts that the court/judge has found to be proved
to the required standard.

It must therefore be expressed in a language that

communicates; accurately and clearly, those conclusions
and the reasons supporting them.

Where it is written, it must be written in a simple, clear and

logical prose that persuades the immediate parties,
(especially the losing party) to accept that it has been fairly
heard and that the court/judge has come to a determination
in a manner it/he was entitled to, even if he, (the losing
party), is unable to agree with those conclusions.

In order to draft a good judgement and arrive at a

reasonable conclusion, it is important to:

1. Establish a logical and coherent judgement outline;

2. Develop a good mastery of the factual issues to be
resolved;
3. Conduct a thorough analysis of the evidence
presented in light of the applicable law and;
4. Properly articulate the reasoning behind the final
judgement.

8.1 THE OUTLINE

A good judgement, like any well-written document should
have clearly identifiable parts arranged in a logical
sequence. By breaking up the trial into several distinct
parts and looking at the individual pieces rather than the
whole, the Judge will be able, more easily, to draft each
segment and thereafter to cobble the entire document
seamlessly together.

The judgement outline should start by addressing any

preliminary or threshold issues that must be resolved before
the case can proceed on its merits. These typically involve
such issues as service and notice to the defendant, fair trial
rights, and other constitutional protections, etc.

Depending on the facts of the case and the issues involved,

a Judge may choose to adopt either a chronological order or
a thematic approach. The outline should also be based on
the allegations and charges contained in the indictment and
in any pre-trial briefs filed by the Prosecution. In a criminal
trial it should reflect the issues, themes and events on
which the Prosecution is seeking conviction. If necessary, it
can also highlight issues raised by the Defense, such as an
alibi or collateral issues.

In a civil trial, it should be based on the issues agreed or

found needing to be determined.

The outline should also incorporate a segment for

discussion of the applicable law. This is where the Judge
shows that he or she is familiar with both the relevant
statutory provisions and with the case law on legal
precedents. Thereafter the Judge can proceed to apply the
law to the facts of the case in order to arrive at a reasonable
decision or judgement.

Trial judges should support their findings with sufficient

reasons to show that they are not arbitrary and capricious.
One should, whenever possible, cite specifics- for example;
evidence from documents, consistencies or inconsistencies
in testimony, conformity to or deviation from normal human
behaviour, awareness of motives for telling the truth or for
concealing it etc. In other words, judges can and should
reveal exactly the sort of thought processes that they
followed in reaching a verdict.

In many courts it may even be possible to establish a

template for the judgement drafting outline that can be
applied in most, if not all, cases. The Judge will then be able
simply to plug in the details of the case as appropriate.

For instance, a template with the following points can be

used in most cases:

8.1.1 SAMPLE JUDGEMENT OUTLINE

Introduction
1. Preliminary Issues
2. Summary of Prosecution/Plaintiff’s Case
3. Summary of Defence/Defendant’s Case
4. Issues to be determined

Evidence and Factual Findings

5. Prosecution/Plaintiff s Allegation on Issue A

 Prosecution evidence in support of the allegation

 Defence evidence on the allegation
 The Judge’s evaluation of the evidence
6. Prosecution/Plaintiff s Allegation on Issue B
  Prosecution/Plaintiff s evidence in support of the
allegation
 Defence evidence on the allegation
 The Judge’s evaluation of the evidence
7. Prosecution/Plaintiff s Allegation on Issue C

 Prosecution evidence in support of the allegation

 Defence evidence on the allegation
 The Judge’s evaluation of the evidence
Applicable Law
8. A Statement of the Law on Issue A

 Statutory Law
 Case Law
9. A Statement of the Law on Issue B

 Statutory Law
 Case Law
10. A Statement of the Law on Issue C

 Statutory Law
 Case Law
Deliberations
11. Applying the Law to the Facts

 These facts [In issue A, B or C]…

o When viewed in the context of this section of
the Constitution/ Law/ Regulation/ Contract/
Precedent/ Principle of equity [choose one]…
• Logically lead to this conclusion [judgement] Judgement
and Sentence (Criminal)
1. Finding of Guilt(or Acquittal)
2. Aggravating or Mitigating Circumstances
3. Sentence
4. Order, Decision/ Findings (Civil)

8.2 FACTUAL ALLEGATIONS

The task of drafting a judgement is not as easy as it sounds.

It is not enough simply to copy and paste the statement or
testimony of a witness. The Judge must analyze the
evidence, determine what is and what is not important in
the context of the case, make sense out of incoherent
submissions, distil the salient points, summarize the
relevant issues, and present all of it in a manner that is
easily understood by a broad audience.
While hearing the evidence, the Judge should take notes
and, where available, make annotations on
the verbatim transcripts of the proceedings. Whenever
possible the Judge should also prepare a brief summary of
each witness’s testimony immediately after it is concluded.
These will later serve as an aide-memoir, particularly in
lengthy trials or in trials involving very many witnesses.
Once the presentation of evidence is over, the judge should
proceed to draft the factual sections. There should be a
separate segment for each factual allegation in the
indictment/pleadings or, in criminal cases, for each crime in
which the Defendant is directly implicated. For example, if
the trial involves multiple instances of theft, assault or
murder, each one should be handled separately, preferably
in chronological order. If each one of these is done properly,
in the end the Judge will have a very easy task stringing
them together.

In civil cases the facts in support of every claim made

should be separately analyzed and listed. In a criminal case,
a suggested approach is to first analyze the Prosecution’s
submissions. This involves:

 Picking out the relevant passages of the

indictment/charge
o Combing through the written submissions
contained in the pre-trial brief and final trial
brief,
o Reviewing the oral submissions made during
closing arguments,
 Examining all Prosecution exhibits,
 Analyzing the transcripts of the
testimonies of all the Prosecution
witnesses testifying to each charge,
 Including their testimony on cross-
examination,
 And any prior (inconsistent)
statements they may have made.
Thereafter an identical exercise will need to be conducted
in respect of the Defence as well. In a civil case an
adaptation of this analysis based on the pleadings filed by
the parties is suggested.

In order for a judgement to inspire confidence and to earn

the respect of both parties, the Judge must display a full
mastery of the facts at issue in the case. It is therefore
important to properly cite the pages of the transcripts or
the parties’ briefs since the final judgement must be
supported by the record.

8.3 LEGAL CONCLUSIONS

A good judgment must also reflect the Judge’s familiarity

with the current state of the law. In a Common law
jurisdiction, such as Kenya, this means the judgment should
demonstrate the Judge’s knowledge of both the applicable
statutory provisions and the relevant case law or legal
precedents.

Depending on the facts of the case at bar, it may be

necessary, for instance, to explore the relevant articles of
the national constitution as well as the provisions of the
enabling statute from which the Prosecution derives the
authority to pursue the Defendant for an alleged crime.

Furthermore, if this is an issue that has been previously

litigated, it might be worthwhile to examine and analyze the
manner in which the highest court in the jurisdiction settled
it previously. It is unnecessary for a trial Judge to examine a
case as if it were in a vacuum and risk having the judgment
overturned by a higher court for failure to follow stare
decisi.
Such analysis would lay the proper foundation for the
Judge’s findings in the case at bar. However, this part of the
discussion should be narrowly tailored to the scope of the
alleged crimes. Thus, if the Defendant is charged with
murder, it is no use having a lengthy discussion on the legal
definition of some other crime.

It is desirable for the Judge to anticipate complicated legal

issues in advance and to research them thoroughly before
embarking on the drafting of the legal conclusions. As noted
earlier, sometimes the resolution of preliminary legal
questions such as notice issues, fair trial arguments, or the
alleged violation of constitutional rights, statutory
limitations and compliance might make it unnecessary to
consider the case on its merits. Therefore, it is of
paramount importance that the legal conclusions be
properly researched.

8.4 DELIBERATIONS
After studying the facts and analyzing the law, the Judge
must proceed to correlate them to each other in a logical
and coherent manner. The Judge must take all the relevant
factors into consideration while omitting the tangential or
extraneous ones. He must consider and decide all the
credibility issues that arise and come to what can or cannot
be believed and why. The Judge must ask himself what
would be the most reasonable conclusion to arrive at after
viewing the facts of the case in light of the applicable law.

In a nutshell, the Judge must decide if the facts of the case,

when viewed in the context of the applicable section of the
Constitution, law, regulation, contract, precedent, or
principle of equity, would lead to the judgement he is about
to pronounce.

It is often said that a well-written judgement is one that is

likely to meet the approval of the losing party.

8.5 CRAFTING THE JUDGEMENT

Here now comes the difficult part. Putting it together in a

clear, logical, readable and organized sequence. This will
frequently begin with the writing of an introduction.

An effective introduction provides two things: a synopsis of

the facts and a brief statement of the issues.

The introduction should provide the necessary context for

understanding the analysis that follows. There is no need of
cluttering the opening paragraph with more information
than the reader needs at this point.

Although you, judges, are not obliged to make your writing

interesting, doing so does have the effect of helping the
reader to pay attention to the argument. While a judgement
need not be interesting, a good one should be exciting. A
good beginning makes the reader want to read more.

8.6 STYLE
Here are some do’s and don’ts about style in judgement
writing:

1. Write as much as possible in plain, simple English,

very much as you would explain it to your next-door
neighbor who is not a lawyer.
2. Whenever you can express yourself in plain
language, devoid of verbiage, repetition and
technical terms, do so. Where possible avoid legalese
and foreign language. Where, however, you use
legitimate terms of art i.e., words or phrases that
either cannot be easily translated because the
original language triggers a doctrine that lawyers
might not recognize by any other name
e.g., “habeas corpus or estoppels”; these terms
may be used. Avoid the use of legal jargon whenever
possible.
 3. Avoid block quotations. It is not good practice to
quote large chunks of text from books or other
judgements. Paraphrase whenever you can. This
enables the reader to appreciate your mastery of the
concept described. Where of course, the use of
words in a text is in dispute or where the language
of the contract is in dispute, such quotations are
inevitable.
Where reference is merely to the substance of the passage
avoid quoting it verbatim. If necessary, make reference to it
in the footnote.

1. Whenever possible, avoid quoting the charge

verbatim unless the wording of the charge is in
dispute or provides the invoked defense.
2. Where, however, you are considering whether or not
the charge is defective, it may be necessary to state
it in full.
3. Write short sentences whenever it is possible to
communicate your full idea in such a sentence.
7. Watch your grammar and punctuation. Avoid `sheng’ or
slang in your judgement writing.

8.7 WRITING THE BODY

Let the body of your judgement flow like you would tell a
story to your next-door neighbour, who is not a lawyer, but
is concerned to know the outcome of the dispute. Tell WHO
DID WHAT TO WHOM – not the legal consequences
thereof or the various interlocutrices and hearings held
thereafter.
Except in the simplest of cases, every trial will involve the
determination of a number of issues. These will have been
agreed between the parties or settled by the Judge/court.
Each of the issues will require to be carefully analyzed so as
to bring out the Judge’s/court’s decision thereon.

There will be issues of fact and issues of law. There will be

facts that are agreed and facts that are in dispute. There
may also be matters that the court/judge may take judicial
notice of. These need not be proved but need to be clearly
stipulated in the judgement.

You are all trail judges. You will need to bear in mind that
your judgement may be subjected to appellate review, it is
therefore important that you set out your consideration of
each issue in a way that will convince the appellate court
that you did not misapprehend the issues that needed to be
proved or the evidence that was brought to prove them.
This will ensure that the court above yours, or the press, or
the losing party, will not miss the essence of your analysis.

8.9 PROCESS OF ANALYSIS OF AN ISSUE

Judgement is about telling the losing party why it lost.
It is best to approach it by explaining its position because it
is the party most interested to know WHY it did not win and
also most likely to appeal. The winning party would care
less how it won and is most unlikely to appeal.
In analyzing an issue or a motion, the approach most
recommended is to:

State the Losing Party’s Position (LOPP) and then state the
Flaw in the Losing Party’s Position (FLOPP) and then state
your conclusion or the court’s finding thereon.

8.10 WRITING AN ENDING

In the very simple cases it will be enough to merely
announce the result and the orders that flow from your
determination.

In a judgement of any complexity, however, an ending

should provide an opportunity to revisit the argument, but
without repeating the reasons and using different language.
A good ending should resemble a good beginning which, in
turn, often resembles a good head note.

It is often a poor ending to end a judgement, as many judges

do with: “For the foregoing reasons…”. An effective
conclusion should summarize those foregoing reasons in a
nutshell and in plain English, without repeating citations
and references that are already included in the body.

8.11 FOOTNOTES
In order to keep the length of the judgement within
reasonable limits and to incorporate lengthy documents,
textbooks passages or cases that may have been consulted
or relied upon, it is often necessary to include footnotes to
the judgement. These should be carefully selected and
referenced.

The practice of including lengthy footnotes that are not

essential to the understanding of the judgement should be
deplicated.

8.12 DELIVERY
The manner of delivery of judgement is a matter for the
Judge/court.

In lengthy judgement it may be unnecessary to read the

entire judgement and a summary of the judgement bringing
out the substance thereof will suffice. It is important,
however, to indicate in such summary that the full
judgement not the summary of judgement is authoritative.

8.13 RATIO DECIDENDI AND OBITER DICTA

The principle of precedents is based on the maxims of ratio
decidendi and obiter dicta. Ratio decidendi literally
means reason for a decision. According to Professor Keeton,
ratio decidendi means “the law formulated by a judge to
solve a particular problem.”
Obiter dicta, literally means an observation. It can be
defined as,” the observations made by a judge which are not
essential for the judgement reached. These are the non-
essential rules of law laid down by the judge during a
particular case on the related topic. So basically, the
pronouncement of law that is not a part of ratio decidendi
is obiter dicta. They are not necessarily binding in
character.

For example, if the court dismisses the case because it is

outside of its jurisdiction, but then gives an opinion on the
merits of the case, it is just obiter dictum. Courts
occasionally cite passages of obiter dicta found in the texts
of previous cases’ opinions in making rulings, with or
without accepting the cited passage’s status as obiter
dicta.

Relevant case laws

 Donoghue v. Stevenson-“The facts of the case
are two ladies went to a restaurant where they
ordered a ginger beer bottle with ice-cream float.
After consuming half of the drink when they
poured more beer, they found a decomposed
snail. After seeing this snail Mrs. Donoghue
suffered severe shock and gastroenteritis. So, the
 main question is what was the ratio and obiter in
this case by the House of Lords. The ratio, in this
case, was the duty of care principle, and what
was said by Lord Atkin manufacturer’s liability
to the ultimate consumer for an injurious
product in circumstances specified did owe a
duty of care to the consumer. he said that
manufacturer owes a duty of care to the
consumer and there was negligence on the part of
the manufacturer.
Obiter of the case was neighborhoods
principle they said that it may not only about
manufacturer but there can be a lot of examples
for people who owe a duty of care. For example,
in doctor and patient. So, ‘neighborhood
principle’ which evolved was only persuasive not
binding. So, in the ratio, you have to give the
reasons.

REFRENCES

(a) Lebovits, Gerald. (2010). Judgment Writing in

Kenya and the Common-Law World. Gerald Lebovits.
 https://www.researchgate.net/publication/
39729383_Judgment_Writing_in_Kenya_and_the_Comm
on-Law_World
(b) Michael S. Pardo, Pleadings, Proof, and Judgment:
A Unifed Theory of Civil Litigation, 51 B.C.L. Rev. 1451
(2010),
http://lawdigitalcommons.bc.edu/bclr/vol51/iss5/3
(c) Badenhorst, P.J. & Olivier, Njj & Williams, Clara.
(2012). The final judgment.
(d) https://www.researchgate.net/publication/
265075878_The_final_judgmentllers, Barbara &
Schwartz, Alan & Cooke, Alan. (1998). Judgment and
Decision-Making. Annual review of psychology. 49.
447-77.
https://www.researchgate.net/publication/
13734384_Judgment_and_Decision-Making
(e) McLeod I. (1993) Ratio Decidendi and Obiter
Dictum. In: Legal Method. Macmillan Professional
Masters. Palgrave, London.
https://doi.org/10.1007/978-1-349-13153-2_10
(f) Rod Hollier, The Ultimate Guide To The Ratio
Decidendi And Obiter Dictum
https://www.thelawproject.com.au/ratio-decidendi-and-
obiter-dictum
(g) Shahabuddeen, M. (1996). Ratio decidendi and
obiter dictum. In Precedent in the World Court (Hersch
 Lauterpacht Memorial Lectures, pp. 152-164).
Cambridge: Cambridge University Press.
https://doi.org/10.1017/CBO9780511720840.013
(h) Lücke, H.K. (1989). Ratio Decidendi: Adjudicative
Rational and Source of Law. Bond Law Review.
https://www.researchgate.net/publication/
27829019_Ratio_Decidendi_Adjudicative_Rational_and
_Source_of_Law

ASSESSMENT QUESTIONS
3. Analyze the Judgment – outline and parts
4. Distinguish ratio decidendi from obiter dicta and
finding the ratio decidendi
 Topic 9.0
THE LEGAL PROFESSION
In this lesson we shall discuss the role of a lawyer in
society, legal education and legal training in Kenya. The
purpose of this lesson is to ensure that you understand the
role of a lawyer in society, legal education and legal training
in Kenya.

9.0 INTRODUCTION
A lawyer is a representative of the client or a neutral third
party, a law enforcement officer, and a public servant who
is especially responsible for the standard of justice. Without
attorneys, you will have nobody to defend you from the
corruption of the law.

It was normal for individuals to beat people until this was

opposed by prosecutors and they admonished it. Then it was
common for no one to remind them that they had the right
to remain silent, and the right to a lawyer, while they were
in jail and questioned.

In today’s world, legal disputes typically arise on a daily

basis. More certainly, you do not have the time to deal with
all of them. In order to take care of your whole legal
situation, it is very good to have a solicitor and it is one sure
way to free yourself from needless headaches. And if you do
not have issues now, finding an attorney is a very good idea.

There were various myths and misconceptions surrounding

the role of lawyers in the society, lawyers were seen as the
problem in conflict resolution in fact many considered them
the reasons why conflicts exist in the society.
In 1665 an English citizen observed of London Lawyers,
“The town is so full of lawyers that one can hardly go into
the streets. They are the jest of the court and the hate of all
people. Their clothes are much out of date as their speech
which none can understand but when they ask their fees.
It is about this time that William Shakespeare was writing
the famous line he wrote that “first thing let’s kill all the
lawyers.”
First and foremost, the Kenyan legal system is
adversarial, where two advocates represent their
parties’ position before an impartial judge or a panel
of arbitrators to try to determine the truth of the case.
Herein justice is done when the most effective
adversary is able to convince the judge that his or her
perspective case is the correct one.
Lawyers play different roles depending on the place of legal
profession and the nature of their law practice. Lawyers
play an important role in lawmaking too since many serves
in parliament and are often called upon to advice
parliament in details on new laws; the use of precedents
puts judges on the position of making law since a body of
law develops from the collective wisdom of other judicial
officers.
Lawyers are the guardian of the rule of law this being the
ideal that all people stand equal before the law. C.J Madan
opined that,“Lawyers role in National development is
higher than that of an ordinary citizen because of
their training and knowledge. Thus, a lawyer has a
threefold loyalty, to the court, to his clients and to the
society at large.”

ROLE OF A LAWYER IN SOCIETY

The world in which individuals exist is full of acts and

choices deemed right and wrong. Some acts are considered
right and wrong by the rules, but they also recognize
various cultural and moral acts in this way. Because of
these distinct laws and beliefs, the uncertainty and
debatable scenarios easily become known.

The laws of society are set in place to ultimately protect

people.

1. Safety
Lawyers give clients a sense of security in achieving their
life goals, knowing that someone would have their back if
they need assistance. In fostering social harmony, lawyers
play a vital role by enforcing the law in a way that responds
to the fundamental requirements of justice, i.e., fair
outcomes achieved by rational procedures.

2. Society’s Advisor:
Prosecutors seek to protect citizens and businesses in civil
courts and to promote justice in criminal trials. Lawyers
work with their clients as advisors, educating them about
their liberties, legal practices, and empowering them to
navigate the often-confusing legal system.

People will have to research the law and past court rulings
without counsel and a competent legal network to learn how
those decisions are made and understand how those
judgments and laws relate to their circumstances.

3. Confidentiality keeping
Some conversations will be confidential with the lawyer,
ensuring that a prosecutor will not discuss the case with
others without your permission, including the police or the
trial, under the specialized legal network.

4. Legal services are provided by lawyers

Legal services are characterized as government law-related
services or legal issues, such as providing legal advice,
filing a lawsuit, defending against criminal charges, etc.,
which are provided by lawyers.
Lawyers are divided into two major classifications;

a) Defense lawyers and,

b) Prosecutors.

In courts, prosecutors represent and prosecute the accused

or victims. One can quickly employ an attorney to get
assistance with legal matters with the help of the attorney
network services.

The lawyers should be willing to counsel their clients and

attend to legal matters outside the courtroom realm with
the aid of the professional legal network and its offerings.

Lawyers are in a unique position to support their legal

concerns with persons, associations, and organizations and
to promote the public good. Public interest attorneys
advocate civil movements for the common benefit of society
to help those in need of legal aid who may not be able to
afford lawyers otherwise. In order to support people with
low wages, personal lawyers also do Pro-Bono work.

Lawyers are at the law court’s conventional mass

mouthpiece. You may be unable to know what the
constitution stipulates in your case. Your stake will be
protected by competent counsel. The legal profession is, for
the most part, self-governing. While self-government powers
have also been granted to other professions, the legal
profession is unique in this regard because of the strong
association between the practice and the government and
law enforcement systems. This correlation is reflected in the
fact that the absolute control over the legal profession is
concentrated overwhelmingly.

As regards time commitment and financial investment, it is

a massive undertaking to become a lawyer. It can be a
difficult struggle to pass the bar and law school. Your
inspiration will always depend on knowing what’s really
good about this profession and being able to see it out there
on the horizon.

5. Poverty eradication, inequality and ignorance

Lawyers are supposed to play a vital role in ensuring that,
by the law, the less fortunate in society are enabled to
advance their livelihood. To guarantee equality and social
development, some initiatives could be implemented by
lawyers. As a means of upholding human rights, activists
are often expected to provide free services to a vulnerable
community.

6. Justice preservation
When a prosecutor takes up a case, he is responsible for
ensuring that the technicalities of the law do not lead to a
miscarriage of justice. An attorney has a responsibility to
use the law in a manner that preserves the rule of law,
contributing to the administration of justice and the
protection of rights. For the personal advantage of a lawyer,
the experience and ability of a lawyer should not be
retained but should be held in trust for the wider society.

7. Legislative liability
Inmate lawyers should be at the forefront of ensuring the
establishment and preservation of a responsible legislature
aimed at promoting rights and freedoms. Responsible
legislation requires the establishment of a legislative system
that respects citizens’ freedoms and rights. Advocates
should also ensure that the laws enacted are not oppressive
to society or racist.

8. Disciplinary proceedings
Codes of professional conduct for lawyers in compliance
with national law and customary and accepted international
norms and standards, the legal profession shall create codes
of professional conduct for lawyers by its appropriate
bodies, or through legislation.

In their professional capacity, claims or complaints made

against lawyers shall be processed expeditiously and
reasonably in compliance with appropriate procedures.
Lawyers are entitled to a fair hearing, including the right to
the support of a lawyer of their choosing. Disciplinary
proceedings against lawyers shall be brought before, and
subject to independent judicial review, an unbiased
disciplinary committee appointed by a legal professional,
before an independent regulatory authority or before a
judge.

All disciplinary proceedings shall be established in

compliance with, and taking into account, the Code of
Professional Conduct and other accepted principles and
ethics of the legal profession.

9.2 LEGAL EDUCATION AND LEGAL TRAINING

IN KENYA

INTRODUCTION
Legal education in Kenya pre-dates independence. The first
feature of the legal profession entrenching roots in Kenya
was vide in the 1897 Order in Council that was enacted to
create a law society whose formation was largely
necessitated by the need for a small group of professionals.
This feature, though closely knitted to the English one,
created a fused profession whereby the barristers and
solicitors did not play distinct roles.
The Solicitors who came to Kenya accompanied settlers who
needed lawyers to look after their legal affairs. After World
War II, the English Government offered a two years legal
training program to those willing to study. Upon their
admission to the Bar in England, they came to the colony.
As the Kenyan economy developed, Asians sent their
children to England and India for legal training. Upon
returning to the colony, they worked as clerks.
The first African lawyers were trained in India but had to
wait for a long time before they could be admitted to the
Kenyan Bar. To be allowed to practice law in Kenya, one
had to be a member of the Law Society. To be a chairman,
one had to have practiced law in the Kenya colony for 10
years and above. During this era, there was no form of legal
education in the colonized African Countries and the only
way an African could become a lawyer was to travel to
London, join an Inn of Court and acquire English
professional qualifications.
Due to the costs involved, the British expatriates and Asians
heavily patronized and dominated the legal profession in the
African colonies. The training offered at the Inns of Court in
London turned out to be inadequate for practice of law in
African settings and is still unfit to date. This is premised on
the fact that the legal training failed to pay any attention to
the problems of practicing in an undeveloped country with
multiple systems of law. Further it gave no regard to the
ever-important role played by African Customary law.
Almost all African lawyers were trained as Barristers
(advocates) and not solicitors presenting the recurrent
problem whereby African law was and continues to be
litigation.
A home-grown legal profession was initiated through the
Lord Denning Committee of 1960 with the mandate of
considering the best models for legal training in Africa. The
role of the Denning Committee was defined as follows:
“(a) . . . To consider, and report as soon as possible, what
facilities ought to be made available to provide any
additional instruction and training, either in the United
Kingdom or elsewhere, which may be required to ensure
that those members of local bars in Africa who obtain their
legal qualifications . . . possess the knowledge and
experience required to fit them for practice in the special
conditions of the territories in which they are to practice,
with special reference to the following:
(i) The acquisition of the practical experience in addition to
academic qualifications . . . .
(b) . . . consideration should also be given . . . to the means
to be adopted in the educational sphere to give the . . .
[African countries] assistance which they may require in
whatever provision they make for the education in Africa of
local inhabitants seeking legal qualification.”
Corollary to this, the Committee recommended that African
countries should not admit lawyers to local practice solely
on the basis of British qualifications. It suggested additional
practical training in local law and procedure as a
requirement. The Committee further recommended the
establishment of local training facilities, and specifically
recommended the establishment of a law school in Dar-es-
Salaam to serve East Africa. The recommendations were
largely adopted and have influenced the system of legal
education in Kenya particularly, the proposal that the
normal pattern of legal education in the African territories
should be a degree in law at an African university followed
by one year of practical training at a school of law.
This formed the basis for common law Kenya’s two-tiered
legal education system;
i) academic legal education in a university’s law
faculty for a Bachelor of Laws degree and
thereafter,
ii) professional legal training in a law school for a “call
to the Bar” (a Barrister/Solicitors’ Certificate).

The certificate gave an individual locus to address the court.

In Republic v. Theuri, the accused was charged with the
offence of practicing law while not an Advocate. The case
against the accused was established on the basis that he got
powers of attorney from litigants and purported to act as an
Advocate. He was found guilty of an offence under Section
33 of the Advocates Act and sentenced to serve 2 years in
jail.
There were no local curricula on the training of lawyers for
the African field therefore the governments simply
borrowed the English one wholly. It was easily assimilated
since it was something which those who had trained abroad
were accustomed to. The only problem with it is the fact
that it encouraged all trainees to engage majorly in private
practice as opposed to the public problems and concerns.
Grady Jessup remarks that, “the law courses of early
curricular designed not reflect the needs of the society and
the training of lawyers was based on doctrine teaching
geared to an adversary setting catering to litigation for the
fortunate few at the cost of social injustice to the deprived
many”.
Subsequent to the Denning Committee Recommendations,
the 1961 Advocates Ordinance was promulgated and the
Council of Legal Education (CLE) was established as well as
the Kenya School of Law (KSL). The latter two institutions
enjoyed a close symbiotic relationship although the school
did not have a defined legal personality separating it from
the Council. The school has always been answerable to the
Council, the Government through the Attorney General’s
office and now the Minister for Justice and Constitutional
Affairs.

9.2.1 THE ADVOCATES ORDINANCE ACT OF

1961
The Advocates Ordinance of 1961 established both the Law
Society of Kenya and the Council of Legal Education which
were modelled on the English systems. The latter lacked in
regulation of private institutions offering legal education in
Kenya with the result that such management has
unfortunately been self-regulated and under public control.
The Council is mandated to generally supervise and control
legal education in Kenya in relation to all aspects thereof;
however, it has actually been restricted to controlling the
Advocates Training Program at the Kenya School of Law
and entry into the legal profession, particularly the Bar.

9.2.2 THE COUNCIL OF LEGAL EDUCATION

ACT CAP 16A OF 1995
As a consequence of the Akiwumi Report, the Council of
Legal Education Act was enacted in 1995 incorporating the
Council of Legal Education as a body corporate. This Act of
1995 was purposeful to establish and incorporate the
council of legal education whose object were to exercise
general supervision and control over legal education in
Kenya and to advise the government in relation to all
aspects thereof. Among the functions of the CLE were to
establish, manage and control such training institutions, to
conduct examinations for the grant of such academic
awards and to award certificates, fellowships, scholarships,
bursaries and such other awards as may be prescribed. But
as a wide and all-encompassing this new mandate may have
been, the reality on the ground was as different. Whereas
the “Council” re-established the Kenya School of Law as a
professional Bar School, the “Council” gave little emphasis
to its function of ‘controlling and supervising’ legal
education in the country. In fact, for the better of the period
prior to 2006, the ‘Council’ merely acted as a ‘Board of
Directors’ for the Kenya School of Law.

9.2.2.1 FUNCTION AND ROLE OF COUNCIL OF

LEGAL EDUCATION
In the exercise of the functions of the Council of Legal
Education in Kenya, the Council should comply with the
general policy of the Government relating to legal education
and training.

The Council should be independent and not be subject to

the control of any other person or authority. The Council
should be a body corporate with perpetual succession and a
common seal and should, in its corporate name, be capable
of;
 suing and being sued;
 taking, purchasing or otherwise acquiring,
holding, charging or disposing of movable and
immovable property;
 borrowing or lending money; and
 doing or performing any other things or acts for
the furtherance of the provisions of the Legal
Education Act which may be lawfully done or be
performed by a body corporate.
9.2.2.2 COMPOSITION OF THE COUNCIL OF
LEGAL EDUCATION

The members of the Council of Legal Education in Kenya

are as follows;

 the chairperson, who should be a person with at

least fifteen years’ experience in matters relating
to legal education and training, appointed by
President.
 the Principal Secretary of the Ministry for the
time being responsible for legal education;
 the Principal Secretary of the Ministry for the
time being responsible for finance;
 the Attorney General
 the Chief Justice;
 two advocates, nominated by the Council of
the Law Society of Kenya;
 one person who teaches law in a public university,
nominated by public Universities;
 the Secretary to the Council of Legal Education
(ex officio member); and
 one person who teaches law in a private
university nominated by private universities.
The Principal Secretaries, Attorney General, Chief Justice
and the two advocates may attend the Council meetings in
person or through their representatives appointed in
writing.

The Cabinet Secretary for the time being responsible for

matters relating to legal education should have regard to
gender equity in appointing the members of the Council.

The nominating bodies in public and private universities

should nominate for the purposes of appointment, persons
(who represent them in the Council as above) who have
knowledge and expertise in matters relating to legal
education and training, finance, commerce or the
management of public institutions.

The chairperson, the representatives for public and private

universities and the secretary to the council should hold
office for a term of three years and may be eligible for re-
appointment for one further term.

VACATION OF OFFICE

The office of a member of the Council, other than an ex

officio member, should become vacant if the member;
 resigns from office by notice, in writing,
addressed to the Cabinet Secretary for the time
being responsible for matters relating to legal
education;
  is absent from three consecutive meetings of the
Council without the permission of the
chairperson;
 is convicted of an offence by a court and
sentenced to imprisonment for a term of six
months or more without the option of a fine;
 is convicted of an offence involving fraud,
dishonesty or moral turpitude (depraved or
wicked behaviour or character);
 is unable, by reason of mental or physical
infirmity, to discharge their functions as a
member of the Council;
 is otherwise unable or unfit to continue serving as
a member of the Council; or
 Dies.

9.2.2.3 FUNCTIONS OF THE COUNCIL OF

LEGAL EDUCATION

The functions of the Council of Legal Education in Kenya

should be to;

 Regulate legal education and training in Kenya

offered by legal education providers;
 License legal education providers;
 Supervise legal education providers;
  Advise the Government on matters relating to
legal education and training.
 Recognize and approve qualifications obtained
outside Kenya for purposes of admission to the
Roll of Advocates.
 Administer such professional examinations as may
be prescribed under section 13 of the Advocates
Act.
Without prejudice to the generality of the functions above,
the Council should, with respect to legal education
providers, be responsible for setting and enforcing
standards relating to the;

 Accreditation of legal education providers for the

purposes of licensing;
 Curricula and mode of instruction;
 Mode and quality of examinations;
 Harmonization of legal education programmes;
and
 Monitoring and evaluation of legal education
providers and programmes.
In carrying out its functions relating to setting and
enforcing standards above, the Council should;

 Make regulations regarding requirements for the

admission of persons seeking to enrol in legal
education programmes;
  Establish criteria for the recognition and equation
of academic qualifications in legal education;
 Formulate a system for recognizing prior learning
and experience in law to facilitate progression in
legal education from lower levels of learning to
higher levels;
 Establish a system of equivalencies of legal
educational qualifications and credit transfers;
 Advise and make recommendations to the
Government and any other relevant authority on
matters relating to legal education and training
that require the consideration of the Government;
 Collect, analyse and publish information relating
to legal education and training;
 Advise the Government on the standardization,
recognition and equation of legal education
qualifications awarded by foreign institutions;
 Carry out regular visits and inspections of legal
education providers; and
 Perform and exercise any other functions
conferred on it by the Legal Education Act.
9.2.2.4 POWERS OF THE COUNCIL OF LEGAL
EDUCATION

The Council should have all the powers necessary on

expedient for the performance of its functions under the
Legal Education Act and in particular, the Council should
have the power to;

 Control, supervise and administer its assets in

such manner and for such purposes as best
promote the purpose for which the Council is
established;
 Control and administer the Legal Education Fund;
 Receive any grants, gifts, donations or
endowments and make legitimate disbursements
there from;
 Enter into association with other bodies
organizations within or outside Kenya as the
Council may consider desirable or appropriate
and in furtherance of the purpose for which the
Council is established;
 Open a bank account or bank accounts for the
funds of the Council; and
 Invest the funds of the Council not currently
required for its purpose.
The Council may, within such time as may be specified by
the Council, require any person to furnish any returns or
information relating to legal education and training that is
in the opinion of the Council required to enable the Council
to perform its functions or exercise its powers under the
Legal Education Act.
9.3 THE LEGAL EDUCATION ACT NO. 27 OF
2012
This Act was enacted by parliament for the sole purpose of
promoting legal education and the maintenance of highest
possible standards in legal education and also to provide a
system to guarantee the quality of legal education and its
providers. This Act repeals the Council of Legal Education
Act of 1995 ad gives the Council functions of regulating
legal education and training in Kenya, licensing legal
education providers, supervising legal education providers
and advising the government on matters relating to legal
education and training.
Under this mandate the council is to be responsible for
setting and enforcing standards relating to accreditation for
the purpose of licensing, curricula and mode of instruction,
mode and quality of examinations, harmonization of legal
education programmes and monitoring and evaluation of
legal education providers and programmes.
In carrying out such functions the council is further
mandated to;
1. Make Regulations in respect of requirements for the
admission of persons seeking to enrol in legal
education programmes.
 2. Establish criteria for the recognition and equation of
academic qualifications in legal education.
3. Formulate a system for recognizing prior learning and
experience in law to facilitate progression in legal
education from lower levels of learning to higher
levels.
4. Carry out regular visits and inspections of legal
education providers and other functions.

9.4 THE KENYA SCHOOL OF LAW ACT NO. 26

OF 2012
This act establishes the Kenya school of law (KSL) as a
public legal education provider responsible for the provision
of professional legal training as an agent of the
Government. The school is further mandated to train
persons to be advocates, to ensure continuing professional
development, to provide para-legal training, to develop
curricular, training manuals, conduct examinations and
confer academic awards among other functions.
However, it should be noted in this text that KSL is only re-
established under the Kenya School of Law of 26 0f 2012
and that it was established in 1963 following the Lord
Denning’s report of 1961 which pointed out a gap in
training of lawyers in Kenya. Later in 2005 the Muigai Task
Force Report recommended the re-designation of Kenya
School of Law’s core functions.
Due to its long existence and various development stages,
the Kenya School of Law has expanded in scope and
coverage from a department to a fully-fledged institution of
legal education and training. These factors have contributed
to its identity and strength of purpose. The opportunities
facilitate reform and transformation of legal education and
training programmes and courses with a view to realizing
the vision of the school.

9.5 THE CHALLENGES FACING LEGAL

EDUCATION IN KENYA
Much criticism has been levelled against the “new breed” of
lawyers for lack of preparation, poor drafting, inadequate
research and a degrading moral character. The series of
legal reform policies and inquiries of legal education
indicate a desperate endeavour to deal with pertinent issues
in legal training that have had an overall effect on the
quality of legal professionals Kenya produces. While some
have been prominent themes of past policy deliberations
and are in the process of implementation, others still
require further inquiries and re-evaluation for the
enhancement of legal education in the country. The
challenges of legal education are discussed below;
1. Liberalization effects: quantity versus quality
Since the early 1990s there has been a growing need
to enlarge access to legal education. Although the
intent of liberalization was to allow access to higher
education, the increasing number of law schools and
large admissions of law students has brought with it a
number of problems regarding the quality of legal
education and legal services offered to community by
these professionals.
2. The Merge between regulation and training
institutions
The central regulating body of legal education in
Kenya is the Council of Legal Education. It performs
this duty through the Kenya School of Law. The fusion
of the two bodies in both regulation and offering legal
education compromises on proper regulation
3. Over-emphasis on foreign Curriculum
One of the recommendations of the Denning Report of
1961 was that law schools were to take consideration
of special conditions of their countries and resonate
with the needs of the local people in offering legal
education. Most of the law taught in Kenya is
fundamentally British oriented a fact that is
attributable to the colonial past and unavoidable.
However, there are elements of Kenyan culture and
heritage that have been overlooked.
4. Out-dated learning materials and facilities
Kenya’s institutions in legal training have not
sufficiently responded to the needs of changing times
and society. It is trite knowledge that there has been
little or no development in the infrastructure and
training programmes in law to meet the challenges of
the 21st Century.
5. Lack of full-time teachers
The current legal education policy allows legal trainers
to operate a part time schedule in the teaching of
law .The majority of law teachers comprise those that
fall in this category. Most of these are involved in other
activities such as private legal practice.
6. Eliminative aspect of bar examinations
Due to liberalization of legal education and the
recruitment of large number of law students, strategies
are used to limit the number of law trainees. These
may include setting very difficult examinations so as
only a few gain entries into the profession.
7. Clinical and skills program
The clinical aspect or practical’s of legal education
appears only to be the prerogative of the Kenya School
of Law. These include legal research and writing
programs, such as student and faculty law journals and
moot court programs. These skills are inculcated too
 late where as they should be intensively integrated in
the undergraduate programs.
8. Pupilage
The current pupilage system has structural
deficiencies. For example, there is no placement
system that aids a freshly graduated student to feel
accepted in the office. Moreover, only a few senior
lawyers have the time and dedication to diligently train
and mentor law students to be effective practitioners.

9.6 LAW SOCIETY OF KENYA

The Law Society in its present form was established in 1948
by section 3 of the Law Society Kenya Ordinance 1949. The
Act was later repealed on 30th October 1992. This was later
replaced by the current Law Society of Kenya (LSK) Act of
2014.

The current law reorganized the LSK structure of the

Secretariat to promote greater commitment to excellence as
well as client care in the practice.

The Society should be a body corporate with perpetual

succession and a common seal and should, in its corporate
name be capable of;
  Suing and be sued;
 Taking, purchasing or otherwise acquiring,
holding, developing or disposing of movable and
immovable property;
 Borrowing or raising money;
 Investing and dealing with monies of the Society
not immediately required in such manner as may
from time to time be determined by the Society;
and
 Doing or performing all such other things or acts,
which may lawfully, be done by a body corporate.

9.6.1 FUNCTIONS OF THE LAW SOCIETY OF

KENYA (LSK)

The objectives and functions of the Law Society of Kenya

(LSK) are to:

 Assist the Government and the courts in matters

relating to legislation, the administration of
justice and practice of law in Kenya;
 Uphold the Constitution of Kenya and advance the
rule of law and the administration of justice;
 Ensure that all persons who practice law in Kenya
or provide legal services in Kenya meet the
standards competence and professional conduct
that are appropriate for legal services they
provide;
 Project and assist the members of the public in
Kenya in matters relating to or ancillary or
incidental to the laws;
 Set, maintain and continuously improve the
standards of learning, professional competence
and professional conduct for the provision of legal
services in Kenya;
 Determine, maintain and enhance the standards
of professional practice and ethical conduct and
learning for the legal profession in Kenya;
 Facilitate the acquisition of legal knowledge by
members of the Society and ancillary service
provider, including paralegal through the
promotion of high standards of legal education
and training;
 Represent, protect and assist members of the
legal profession in Kenya in matters relating to
the conditions of practice and welfare;
 Formulate policies that promote the restructuring
of the legal profession in Kenya to embrace the
 spirit, principles, values and objects of the
Constitution of Kenya;
 Facilitate the realization of a transformed legal
profession that is cohesive accountable, effective
& independent;
 Establish mechanisms necessary for the provision
of equal opportunities for all legal practitioners in
Kenya;
 Protect and promote the interest of consumers of
legal service and the public interest generally by
providing fair, effective, efficient and transparent
procedures for the resolution of complaints
against legal practitioners;
 Develop and facilitate adequate training
programmes for legal practitioners; and
 Do all such other things as are incidental or to the
foregoing functions.

9.6.2 POWERS AND PRINCIPLES OF LSK

LSK should have the powers to do all things necessary for

the effective achievement of its objects and the performance
of its functions.

In carrying out its functions and in the exercise of its

powers under the LSK Act, the Society should have regard
to the following principles;
  the maintenance and advancement of
constitutionalism, justice and the rule of law;
 the facilitation of access to justice;
 the protection of public interest;
 the maintenance of integrity and professionalism;
and
 the promotion of cross border legal practice,
inclusivity and equity

9.6.3 MEMBERSHIP OF LAW SOCIETY OF

KENYA (LSK)

Who can be a member of the Law Society of Kenya?

 Any advocate who is a member of the society by

virtue of section 28 of the Advocates Act.
 Any person admitted to membership of the society
under section 6 of the Law Society of Kenya Act
(special membership).
 Any person elected as an honorary member of the
society under section 7 of the Law Society of
Kenya Act.
 Any person who may have at any time previously
been a member of the society and who complies
with the regulations of the society for the time
being in force.
  Any of the following persons who apply for
membership of the society in the prescribed
manner may be admitted as a member of the
society by the council:
o Any person mentioned in section 9 of the
Advocates Act.
o Any other legally qualified person for the
time being resident in Kenya
Notwithstanding the above, a member of the Society
(except an honorary member) whose name has been, as a
result of disciplinary proceedings struck off the Roll of
Advocates should not be a member of the Society during the
period of expulsion.

A person who has been expelled from membership of the

Society should not be re-admitted as a member of the
Society without the authority of a special resolution

Subject to the provision of Sections 27 and 28 of the

Advocates Act, every member of the society should pay the
society such annual subscription as may be prescribed from
time to time.

REFRENCES
(a) Yakovlev, Andrei & Kazun, Anton & Sitkevich,
Daniil. (2016). The Role of Lawyers in Social Changes
 in Developing Countries: Evidence from Russia.
https://www.researchgate.net/journal/1556
5068_SSRN_Electronic_Journal
(b) F Fred C. Zacharias, The Lawyer's Role in a
Contemporary Democracy, Promoting Social Change
and Political Values, True Confessions About the Role
of Lawyers in a Democracy, 77 Fordham L. Rev. 1591
(2009).
Available at:
https://ir.lawnet.fordham.edu/flr/vol77/iss4/16
(c) The Role of Lawyers in a Democracy, 77 Fordham
L. Rev. 1591 (2009).
Available at:
http://ir.lawnet.fordham.edu/flr/vol77/iss4/16
(d) Advocates Cap 16 laws of Kenya
http://kenyalaw.org:8181/exist/kenyalex/actview.xql?
actid=CAP.%2016
(e) Kenya School of Law Act No. 26 of 2012 laws of
Kenya
http://kenyalaw.org:8181/exist/kenyalex/actview.xql?
actid=No.%2026%20of%202012
(f) Legal Education Act No. 27 Of 2012 Laws of Kenya
http://kenyalaw.org:8181/exist/kenyalex/actview.xql?
actid=No.%2027%20of%202012

ASSESSMENT QUESTIONS
 Analyze the role of a lawyer in society, legal education
and legal training in Kenya.

TOPIC 10.0

ACCESS TO LEGAL SERVICES AND LEGAL AID

This lesson will focus on the problem facing access to legal
services; the constitutional framework on legal aid and key
provisions in the Legal Aid Act, 2016 in respect to legal aid
eligibility, funding legal aid and public legal awareness. The
purpose of this lesson is to ensure that you understand the
problem facing access to legal services; the constitutional
framework on legal aid and Legal Aid Act, 2016.

LESSON LEARNING OUTCOMES

By the end of this lesson, you will be able to:
 Analyze the problem facing access to legal services;
the constitutional framework on legal aid and key
provisions in the Legal Aid Act, 2016 in respect to legal
aid eligibility, funding legal aid and public legal
awareness.

10.0 INTRODUCTION
For decades, indigenous peoples in Kenya and the world at
large have been discriminated, oppressed and disposed of
their lands and related resources. This challenge is
premised on poor governance, corruption, impunity, violent
conflict and poverty.
The dominant conundrum facing indigenous peoples is land
dispossession, often inscribed under what is normally
known as historical injustices in Kenya. This situation
undermines indigenous peoples‟ livelihoods, leading to
severe impoverishment. It fundamentally threatens the
continued existence of indigenous peoples.
The Constitution of Kenya provides for the recognition of
historically marginalized groups, including indigenous
peoples. However, the realization of their constitutional
rights has been a mirage. The reality is that these groups
are often poorly represented in decision-making bodies,
both locally and at the national level.
Their participation in national development issues is also
impeded by discrimination on grounds of social origin and
descent. The lack of legal aid makes it difficult for the
indigenous peoples to access meaningful justice.

10.1 ACCESS TO LEGAL SERVICES AND LEGAL

AID IN KENYA

Equal access to justice remains a challenge for most people

in Kenya. Aside from the limited provision of state-funded
legal aid, a large number of Kenyans have few options to
access the judicial system with proper representation.
The majority of pro bono legal services are provided by non-
governmental organizations (“NGOs”), which are located
mainly in large cities, and which lack the resources and
capacity to represent the large number of Kenyans in need
of legal advice. Without representation, most Kenyans are
unable to manoeuvre the legal system because of the
complex legal procedures, lack of education regarding legal
rights and the court system, financial impediments or other
time and resource constraints. Kenya faces significant
challenges in implementing a legal system that serves its
population adequately, but it is making strides in the right
direction.
The much-awaited law covering the legal aid regime was
finally passed by parliament and obtained assent from the
President on Friday 22nd April 2016. The enactment of the
Legal Aid Act, 2016(the Act) marked an end to a long and
tedious journey; civil society have been on the forefront
campaigning for its enactment and attributed to its strong
watch dog role that ensured that state upheld its
international human rights obligations, specifically on the
right to access justice. Thus, for ‘Wanjiku’, this draws her
closer to the elusive goal, quest to access justice.

The advocacy efforts began over twelve years ago with the
formulation of the Legal Aid Policy. The consultations were
robust amongst stakeholders who included civil society,
state agencies such as the Law Reform Commission (KLRC),
Kenya National Human Rights Commission (KNCHR) and
the National Legal Aid and Awareness Programme
(NALEAP) an agency that was established then under the
Ministry of Justice to pilot the legal aid regime, prior to the
promulgation of the Constitution in 2010.

10.2 THE PROBLEM OF ACCESS TO LEGAL SERVICES

The reasons why people living in poverty incur challenges

when accessing justice vary from one community to another
and context to the other, but many typically relate to under
development of the legal framework and discriminatory
norms, poor legal awareness, insufficient legal services,
problems relating to legal capacity and corruption within
existing justice sectors or generally inability of the justice
system to reach beyond the interest sphere of the more
affluent and influential members of the society.

1. Social and Cultural Barriers

Access to justice is affected by the social and
characteristics of jurisdiction, including economic
factors. Characteristics may include average income,
inequality gaps, economic structure, urbanization,
religion and level of literacy and education. Some of the
ways in which social barriers can be a hindrance to
access to justice include;

a) Stigma
 Due to deeply entrenched discriminatory stereotype
that persons living in poverty are lazy, irresponsible,
indifferent to their children‟s health and education,
dishonest and undeserving,the society including
criminal police officers, court staff and other justice
sectional personnel, reflect a discriminatory attitude
of the wider society, often show discrimination or bias
againstpersons living on poverty in their decision or
behavior. Stigmatization and prejudicial attitude
generate a sense of shame and discouraging to
persons living in poverty from approaching public
officials and seeking the support that they need, not
wishing to expose themselves to even greater social
discrimination or abuse by the authorities, they may
refrain from claiming entitlements or challenging
abuses.

b) Illiteracy
Literacy and education empower individuals,
increasing their capacity to understand and insist on
the enforcement of their right. Low level of literacy
and education reduce access to economic resources
and the capacity to understand and enforce rights,
resulting to low level s of access to justice.125 For one
to comprehend the existence of rights and the ways in
which such rights can be invoked and enforced by
 judicial and adjudicatory mechanisms, is fundamental
to the appreciation of the phenomenon of access to
justice.

2. Geographical barriers
While excessive police deployment is problematic in
some communities living in poverty, the absence of
police and other institutions necessary for the
administration of justice in rural, poor and marginalized
areas is a common problem. Courts, especially appeal
courts are often located only in the Capital cities while
police officer and lawyers are also concentrated in urban
areas along with registries for lands, birth, death and
marriages. In the circumstance, persons living in poverty
often have to travel long distances at great costs to
engage with the justice system, exposing them to
unfamiliar environment and unsafe conditions.

3. Financial Barriers
Persons living in poverty face daunting financial hurdles
to engage with the justice system on a fair and equal
basis, not only the costs of legal assistance but also the
direct and indirect costs.

a) Lack of Quality legal Assistance

 Legal aid is particularly important for persons living in
poverty who are accused or victims of crime, as they
face a rage of obstacles such as negotiating for bail
procedures, pre-trial detention, trial and sentencing
and appeals. In civil matters when a person does not
have sufficient resources to pay for legal assistance,
she/he is prevented from asserting her rights. Lack of
legal aid for Civil matters can seriously prejudice the
rights and interests of persons living in poverty as
they are unable to contest tenancy disputes, eviction
decisions, immigration or asylum decisions and many
more.

b) Fees and Costs

In addition to legal fees, there are other numerous
costs associated with accessing the justice system,
which constitute a major barrier for those who simply
cannot afford them. Costs are encountered at every
stage of the legal process, alongside several direct
costs, such as obtaining a legal document,
commissioning of documents, photo copy and phone
calls whose cumulative impact is a crucial factor in
preventing the poor from accessing and benefiting
from the justicesystem. In criminal matters, costs are
particularly burdensome where large sums of money
are needed to pay bail or risk long periods of pre-trial
 detention. In addition to formal administrative fee,
persons living in poverty encounter other collateral
costs in accessing justice.
4. Institutional Barriers
Several systematic problems in the operation of the
justice system impact harshly on people living in poverty
thus obstructing them at every stage of the justice chain.

a) Inadequate capacity and resources

Shortfalls in financial and human resource allocations
to courts, police and prosecution corps, and
insufficient training and capacity building for judicial
and law enforcement officers, translate into failure in
the judicial system that infringe upon access to justice.
Such failures including delays, flawed into insufficient
evidence gathering, lack of enforcement, and abuse,
undermine the effective functioning of judicial and
adjudicatory mechanisms and undermine human
rights.

b) Excessive delay
Due to lack of adequate resources and qualified staff,
limited budget and inadequate infrastructure, there
are unnecessary delays in adjudication of cases and
enforcement of judgments. While these problems affect
all persons seeking justice through the formal justice
 system, they have a disproportionate impact on the
poor, for whom a long process is not only a denial of
justice but also unaffordable and may aggravate their
situation.

c) Corruption
In Kenya partly due to overstretched and unfunded
judicial system, corruption is epidemic within the
police force, prosecution lawyers, and among judicial
officials. Illicit payments and favors enable those with
financial and social capital to access the justice system
with greater efficiency and effectiveness, and even to
secure a certain outcome. When people living in
poverty cannot afford to pay requested bribes for
services that should be free, their claims and cases are
delayed, denied or discontinued. Moreover, bribes
represent a greater burden for persons living in
poverty, often meaning that they have to sell or
sacrifice their health or education costs to meet such
demands.

5. Procedural Barriers
High cost, complexities, excessive documentation
requirements, geographically distinct offices and time-
consuming processes of registration are great
disincentives to accessing access to justice for the poor
and the most marginalized.

a) Formalism
Without the resources to retain private legal
assistance, and with restricted access to legal aid,
persons living in poverty are often forced to navigate
the judicial system alone. In doing so, they encounter a
complex labyrinth of laws, traditions and interaction
with copious paperwork, the use of legal jargon,
mainstream languages and restrictive time limits, all of
which can deter the poor from seeking justice under
formal system and impede fair outcomes. These
barriers are particularly damaging in areas of the law
that frequent impact upon the most marginalized.
Person living in poverty may be unfamiliar with, and
often intimidated by, regulations regarding dress
codes, the hierarchy of the court system,
confrontational design of court rooms, and traditions
about when to sit, stand and address the judge. As a
result, they are in an unequal and disadvantaged
position before they even walk into the courtroom.

b) Complexity of procedure
While many people find it difficult to understand legal
or judicial terminology, the complexities increase in
 multilingual and multiethnic societies like Kenya where
legal proceed are conducted in English making it
difficult for the very poor who only speak their local
dialect. Similarly, judicial systems like ours that are
heavily reliant on paper forms and written submissions
put illiterate persons in a disadvantaged position.
While individuals facing a criminal charge have the
right to a free interpreter under international human
rights law in practice this service is often limited,
unavailable or reserved for those who speak foreign
language, rather than a minority language or local
dialect, and is rarely provided for in civil cases. Even
when the predominant language is spoken, cultural
differences can impede communication within the
judicial system.

10.3 POTENTIAL INTERVENTIONS TO ACCESS

TO JUSTICE

In order to be able to identify the set of intervention that

are most relevant to overcome access to justice, it is
necessary to maintain a system wide perspective. Even
though resource constraints may make it impossible to
try addressing all relevant aspects of the justice system,
individual reform initiatives should not be considered in
isolation as improvement on one part of the justice
system may be effectively undermined by existing
weakness in other parts of the system.
In conducting a system wide analysis, the framework set
out relate to normative protection, legal awareness, legal
assistance, redress and conflict resolution, enforcement
and oversight monitoring and to reform claim by rights
holder.

a) Normative Protection
Normative protection refers to the presence of a legal
umbrella that defines rights and duties, reflecting
customs and accepted social behaviours. The quality of
a court cannot be assured if the rights of the applicants
are not assured. A set of rules and practices related to
the right of a fair hearing have been developed,
including; the right to a fair hearing, the right to a
public hearing and pronouncement of judgment,
presumption of innocent, the right to know the
accusation, adequate time and facilities to prepare a
defense, the right to legal assistance, the right to
examine a witness, the right to an interpreter and the
right to compensation for miscarriage of justice.Gaps
in existing legal frameworks are often filled by new
laws that are heavily influenced by or copied from
other countries.
b) Legal Awareness
People living in poverty and with no or little formal
education are in most circumstances likely to have
particularly low awareness of laws and rights, and as a
result have the biggest problem in accessing the
justice system. Legal awareness can be enhanced
through training initiatives, but also by making laws
and regulations more accessible. Some of this
initiatives include; Legal literacy programs
implemented by the state, civil society organization or
media which would be effective on increasing legal
awareness, integrated approaches that pair legal
literacy with mainstream development programs,
writing laws in plain language thus making it more
accessible and easy to understand and ensuring a
participatory law making process which would provide
for public hearing and allowing citizens and
organizations to summit comments, would help to
make laws more accessible and ensure that the needs
of the people are reflected.

c) Redress and conflict resolution

Access to justice is often hindered by an absence of
state and non-state institutions that register rights
adjudicate disputes and ensure redress for grievances
in a fair, predictable and effective manner. As courts
can be used to enhance oppression as well as to uphold
freedoms, support to increase the capacity of the
judiciary should be accompanied by genuine
government commitment to reform and go hand in
hand with interventions to ensure independence,
transparency, accountability and adherence to fair trial
standards.
Research on local government corruption cases
indicate that extensive public scrutiny of judicial
procedures plays a key role in ensuring that cases
progress through the legal process.
Anticorruption programs and strengthening external
monitoring mechanism such as non-governmental
organizations, court watch programs are an example of
ensuring improved accountability.
Formal and informal alternative dispute resolution
mechanisms including small courts, networks of
trained volunteer mediators and various other
alternative dispute resolution mechanisms have
produced low-cost resolution of disputes in a manner
that is satisfactory to the parties involved.
d) Enforcement
A major problem with many formal and informal justice
systems is that the decisions handed down by courts
and similar institutions are not enforced due to factors
such as corruption, political interference, lack of
resources and poor administration routines. Another
problem is that the enforcement process is often
accompanied by human right abuses.
The justice reform process too often fails to include
police reform. However, the police play a fundamental
role in ensuring access to justice, particularly since it
is the point of 1st contact in the criminal justice
system. Interventions to improve the effectiveness of
the police and other enforcement agencies should
always be accompanied by efforts to ensure
transparency, accountability and adherence to
establishment of human norms. Therefore, efforts to
strengthen the human rights and accountability
perspective of policing need to be combined with
initiatives to increase crime control capabilities.
Community based policing programs striving to build
positive relationships between the police and the
communities, focusing on crime control and
prevention, have contributed to increased public
confidence in the force and thus reduced crime level.
 e) Oversight and monitoring bodies
Civil society and parliamentary oversight are necessary
to strengthen overall accountability in the justice
system. Developing watchdogs and monitoring
capacities in civil society and parliament not only
benefit disadvantaged groups and citizens at large, it is
also useful for justice institutions themselves.
Strategies may include creating civic oversight
mechanism, supporting civil society in monitoring
public appointment and law implementation,
developing research capacity, enhancing skill for
investigative journalism and human rights reporting,
and involving civil society in the establishment of
access to justice indicators and baselines.

10.4 CONSTITUTIONAL FRAMEWORK ON

LEGAL AID

The normative framework for access to justice is found in

international instruments, setting principles and minimum
rules for the administration of justice. They comprise the
Universal Declaration of Human Rights, the international
human rights law and specific conventions, rules, guidelines
and standards promulgated by the international community
under the auspices of the United Nations.
In Kenya, the enactment of the new constitution 2010 has
brought hope on the issue of access to justice being that the
same is now a fundamental right guaranteed therein. Article
48 of the constitution obligates the state to ensure access to
justice for all persons. The said article is geared towards
enhancing access to justice for all persons in Kenya
especially the poor.

10.4.1 CONSTITUTIONAL PROVISIONS ON ACCESS

TO JUSTICE

Whereas article 48 of the constitution of Kenya 2010 has

made access to justice a fundamental right, there are other
provisions that are geared toward enhancing equal access
to judicial and other administrative institutions and
mechanism in the same constitution.
Under Article 22 of the Constitution, the Chief Justice is
required to make rules to provide for the right of every
person to access courts and seek the enforcement of rights
and fundamental freedom in the Bill of Rights that has been
denied, violated, infringed or threatened.
Article 22 (3) is intended to ensure that no impediment
whatsoever shall stand on the way to access to justice by
ensuring that no fees are charged for commencing
proceedings, removing the strict legal provisions of locus
standi, minimizing procedural formalities, entertaining the
commencement of proceedings on the basis of informal
documents and allowing experts to appear as friends of the
court.
The right of access to information held by the state and
information held by another person and required for the
exercise or protection of any right and fundamental freedom
has now been acknowledged under the Constitution. This is
therefore important as all information required by anybody
to institute a suit that is in the possession of any person
including the state shall be easily available.
Article 47 provides for an administrative action that is
expeditious, efficient, lawful, reasonable and procedurally
fair. It further calls for written reason where a Right or a
fundamental freedom of a person has been or is likely to be
adversely affected by an administrative action. This can be
said to be preventing the issue of unfair and un-procedural
arrest of persons by the police.
Article 49 provides for the right of an accused person to be
allowed to communicate with an advocate or other persons
whose assistance is necessary while article 51(7) allows an
intermediary to assist a complainant or an accused person
to communicate with the court. This thus removes the
phobia and confusion that many accused people face while
accessing criminal courts hence making the said courts
easily accessible to all.
Article 50 further provides for the right of every person to
have an advocate assigned by the state and at the state
expenses, if substantial justice would otherwise result and
to be informed of this right promptly. This article thus
provides for easy access to justice for capital offenders to be
represented especially in circumstances where they are not
able to afford an advocate.
Article 159 recognizes judicial authority to be derived from
the people and exercised by courts and tribunals
established by or under the constitution. In exercising this
authority, the courts are called upon to be guided by the
fact that;
a) justice shall be done to all irrespective of status,
b) justice shall not be delayed,
c) alternative dispute resolution including reconciliation,
mediation, arbitration and traditional dispute
resolution mechanism shall be promoted,
d) judicial justice be administered without undue regard
to procedural technicalities and
e) The purpose of the constitution be promoted and
protected.

10.5 LEGAL AID ACT, 2016

The Bill whose main purpose is to ensure access to

justice through legal Aid to all Kenyans establishes a
 service known as the National Legal Aid Service which is
a body corporate with perpetual succession and whose
function are to establish a National Legal aid Scheme
that is affordable, accessible, sustainable and
accountable.
Further it is to take appropriate measures for promoting
legal literacy and legal awareness among the public and
in particular educate vulnerable sections of the society
about their rights and duties under the constitution.
The Bill further establishes a fund to be known as the
Legal Aid Fund which consists of money allocated by
parliament, gifts, donations and loans for the purpose of
the service which includes payment of pro bono lawyers.

10.5.1 OBJECTIVES OF THE ACT

The object of this Act is to establish a legal and institutional
framework to promote access to justice by;
a) Providing affordable, accessible, sustainable, credible
and accountable legal aid services to indigent persons
in Kenya in accordance with the Constitution;
b) Providing a legal aid scheme to assist indigent persons
to access legal aid;
c) Promoting legal awareness;
d) Supporting legal services by funding justice advisory
centers, education and research, and;
 e) Promoting alternative dispute resolution methods that
enhance access to justice in accordance with the
Constitution.

10.5.2 GUIDING PRINCIPLES OF THE ACT

In performance of the functions and the exercise of the
powers conferred on the service under this Act, the
service shall be guided by-
a) The national values and principles of governance set
out in Article 10 of the Constitution;
b) The values and principles of public service set out in
Article 232 of the Constitution;
c) The principle of impartiality, gender equality and
gender equity;
d) The principle of inclusiveness, non-discrimination and
e) Protection of marginalised groups;
f) The rules of natural justice; and
g) The provisions of any treaty or convention ratified by
Kenya, relating to the provision of legal aid.

10.5.3 FUNCTIONS OF THE SERVICE

1) The functions of the service shall be to;
a) Establish and administer a national legal aid scheme
that is affordable, accessible, sustainable, credible
and accountable;
b) Advice the Cabinet Secretary on matters relating
tolegal aid in Kenya;
c) Encourage and facilitate the settlement of disputes
through alternative dispute resolution;
d) Undertake and promote research in the field of legal
aid, and access to justice with special reference to
the need for legal aid services among indigent
persons and marginalized groups;
e) Take necessary steps to promote public interest
litigation with regards to consumer protection,
environmental protection and any other matter of
special concern to marginalized groups;
f) Provide grants in aid for specific schemes to various
voluntary social service institutions, for the
implementation of legal aid services under this Act;
g) Develop and issue guidelines and standards for the
establishment of legal aid schemes by Non-
Government Agencies;
h) In consultation with the Council of Legal Education,
develop programs for legal aid education and the
training and certification of paralegals;
i) Promote and supervise the establishment and
working of legal aid services in universities, colleges
and other institutions;
j) Promote the use of alternate dispute resolution
systems;
 k) Take appropriate measures to promote legal literacy
and legal awareness among the public and in
particular, educate vulnerable sections of the society
on their rights and duties under the Constitution and
other laws;
l) Facilitate the representation of persons granted
legal aid under this Act;
m) Assign legal aid providers to persons granted
legal aid under this Act;
n) Establish, coordinate, monitor and evaluate justice
advisory centers;
o) Coordinate, monitor and evaluate paralegals and
other service providers and give general directions
for the proper implementation of legal aid programs;
p) Administer and manage the Legal Aid Fund; and
q) Perform such other functions as may be assigned to
it under this Act or any other written law.

10.5.4 ESTABLISHMENT OF LEGAL AID FUND

The Act further stipulates that there shall be an
establishment of Legal Aid Fund and states that;
1. There is established a fund, to be known as the Legal
Aid Fund, which shall vest in and be managed by the
Service.
2. The Fund shall consist of ;
 a) Moneys allocated by parliament for the purpose of
the service;
b) Any grants, gifts, donations, loans or other
endowments given to the service;
c) Such funds as may vest in or accrue to the service in
the course of the exercise of its powers or the
performance of its functions under this Act; and
d) Moneys from any other lawful source accruing to the
Fund.

10.5.5 APPLICATION OF THE FUND

Article 30 of the Act stipulates on how the funds should be
used and states that;
1. The service may use the monies of the Fund to;
a) Defray the expenses incurred in the representation
of persons granted legal aid in accordance with this
Act;
b) Pay the remuneration of legal aid providers for
services provided in accordance with this Act;
c) Meet the expenses incurred by legal aid providers in
providing services under this Act; and
d) Meet the expenses of the operations of the service
as approved by the Board.

10.5.6 PERSONS LIABLE FOR LEGAL AID

The Act further stipulates on persons who are eligible to
receive legal aid and they include;
1) A person is eligible to receive legal aid services if that
person is indigent, resident in Kenya and is;
a) A citizen of Kenya;
b) A child;
c) A refugee under the Refugee Act
d) A victim of human trafficking; or
e) An internally displaced person; or
f) A stateless person
2. A person who is eligible to receive legal aid services
under subsection 1 shall apply to the service in the in
the prescribed manner.
3. A person shall not receive legal aid services unless the
service has determined that the individual’s financial
resources are such that the person is eligible for the
services.
4. Despite subsections 1,2, and 3, the service shall not
provide legal aid services to a person unless the
Service is satisfied that;
a) The cost of the proceeding is justifiable in the light
of the expected benefits;
b) Resources are available to meet the cost of the legal
aid services sought;
c) It is appropriate to offer the services having regard
to the present and future demands;
 d) The nature, seriousness and importance of the
proceeding to the individual justify such expense;
e) The claim in respect of which legal aid is sought has
a probability of success;
f) The conduct of the person warrants such assistance;
g) The proceeding relates to a matter that is of public
interest;
h) The proceeding is likely to occasion the loss of any
right or the person may suffer damages;
i) The proceedings may involve expert cross-
examination of witnesses or other complexity;
j) It is in the interest of a third party that the person
be represented;
k) Denial of legal aid would result in substantial
injustice to the applicant; or
l) There exists any other reasonable ground to justify
the grant of the legal aid.

10.5.7 LEGAL AID NOT AVAILABLE TO CERTAIN

CIVIL MATTERS
Article 37 of the Act stipulates that, on certain areas in civil
matters where legal aid is not available which include;
a) To a company, corporation, trust, public institution,
civil society, Non-Governmental Organization or other
artificial persons;
b) In matters relating to tax;
c) In matters relating to the recovery of debts;
d) In bankruptcy and insolvency proceedings; and
e) In defamation proceedings.

10.6 LEGAL AWARENESS

Legal awareness, also known as legal consciousness, is

the empowerment of individuals regarding issues
involving the law. Legal awareness helps to promote
consciousness of legal culture, participation in the
formation of laws and the rule of law. Legal
consciousness is defined by Ewick and Silbey as the
process by which people make sense of their experiences
by relying on legal categories and concepts. People do
this even when they are not familiar with the details and
minutia of law or the legal system. They explain that
there are cultural schemas provided by law that people
use to make sense of their experiences.

10.6.1 DEFINITION
According to the American Bar Association, Commission
on Public Understanding, legal awareness is, “the ability
to make critical judgments about the substance of the
law, the legal process, and available legal resources and
to effectively utilize the legal system and articulate
strategies to improve it is legal literacy”.
The Canadian Bar Association defines legal literacy as,
“the ability to understand words used in a legal context,
to draw conclusions from them, and then to use those
conclusions to take action.”
The Multiple Action Research Group’s (MARG, an NGO
working for the promotion of legal awareness) definition,
legal awareness can be defined as, “critical knowledge of
legal provisions and processes, coupled with the skills to
use this knowledge to respect and realize rights and
entitlements”

10.6.2 GOALS AND OBJECTIVES

Goals of the legal literacy programs can be broadly
divided in three types. Namely;
a) Educational,
b) Competency and
c) Critical.

In Reading the Legal World, author Laird Hunter expects

legal literacy to achieve: “People using the legal system
must be able to guide themselves through a process that
they understand [...] and, at appropriate places along the
way”
i) recognize they have a legal right or responsibility,
in order to exercise or assume it;
ii) recognize when a problem or conflict is a legal
conflict and when a legal solution is available;
 iii) know how to take the necessary action to avoid
problems and where this is not possible, how to
help themselves appropriately;
iv) know how and where to find information on the
law, and be able to find information that is
accessible to them,
v) know when and how to obtain suitable legal
assistance;
vi) have confidence that the legal system will provide
a remedy, and
vii) Understand the process clearly enough to
perceive that justice has been done.

10.6.3 OBJECTIVES OF LEGAL LITERACY

Depending on the goals there can be a number of objectives
for legal literacy programs which include;
a) Raising awareness and building capacity
b) Training of trainers
c) Community education and empowerment
d) Exposing law students to social justice work
e) Strengthening community solidarity and supporting
grass-roots advocacy.

10.6.4 METHODS ADOPTED TO PROMOTE

LEGAL AWARENESS
 There have been many cases where governments have
promoted long-term legal literacy missions or awareness
campaigns. An example of this is when institutions
arrange legal literacy events.
Legal awareness is also achieved through camps,
lectures, and interactive workshops or crash programs on
the essential and elementary legal laws. Among the
general public, many wish to spend time listening to
scholars on contemporary issues that have significant
bearing on the rights and livelihood of ordinary people.
Other methods are road shows, radio talks, street and
theatre plays, as well as the publication of relevant
books, periodicals, posters, and charts that deal with
particular laws, the distribution of pamphlets, brochures,
and stickers, the display of paintings, illustrations in
comics, and other ways to ensure publicity for various
legal mobilization activities.
Strategically located display boards in public places
(railway stations, bus stations, market places, in front of
major government offices and police stations) are also
used to help government officials, police, and the public
to understand the spirit of law.

REFERENCES
(a) Legal Aid Act No.6 of 2016 Laws of Kenya.
Retrieved from
 http://kenyalaw.org:8181/exist/kenyalex/actview.xql?
actid=No.%206%20of%202016
(b) Owuoth Desmond Tutu, The Role of Legal Aid in
the Realization of the Rights of Indigenous Peoples in
Kenya. Retrieved from
http://erepository.uonbi.ac.ke/bitstream/handle/
11295/99727/THESIS%20CORRECTIONS..pdf?
isAllowed=y&sequence=1
(c) Obonyo Diana Achieng, Toward the Provision of
Mandatory Pro Bono Legal Services in Kenya.
Retrieved from
https://suplus.strathmore.edu/bitstream/handle/
11071/5216/Toward%20the%20provision%20of
%20mandatory%20pro%20bono.pdf?
sequence=1&isAllowed=y
(d) Ouma, Yohana & Chege, Esther. (2016). Law
Clinics and Access to Justice in Kenya: Bridging the
Legal Divide. International Journal of Clinical Legal
Education. Retrieved from
https://www.researchgate.net/journal/
14671069_International_Journal_of_Clinical_Legal_Educatio
n

ASSESSMENT QUESTIONS
1. Analyze problems facing access to legal services and
Legal Aid in Kenya.