Different jurists have attached different meanings to the word ‘law’ and no definition is considered perfect. However, the law of state roughly consists of those rules of conduct and standards prescribed by the people in authority for governing and regulating peaceful relations between members of a particular community or state. These rules may originate from Acts of Parliament or customs and are enforced by the duly constituted courts of law.
Legal laws should be distinguished from
- moral laws which vary with the changing values of society,
- social laws which are imposed by the group, club or society with which the individual has an affinity, and
- the laws of Nature which are not subject to variation. It is a scientific rule that it takes 365 days for the earth to go round the sun. This is a rule of nature and not within the scope of this study which is concerned only with rules made by human beings to guide other human beings.
The concept of the state signifies a group of people living within a defined territory, ruled by a government and subject to the rule of a single system of law. There must be an institution which is capable of making and enforcing the laws: this institution is termed the government. It is the means whereby laws are made and it ensures that they are obeyed. In Kenya there is a government, one branch of which (the Parliament) makes the laws and the other branches (the police, and the courts) enforce the laws.
Classification of law
The law is mainly divided into two main branches:
(a) Public law
(b) Private law.
Public law is law in which the state has a direct interest. Thus constitutional law, which regulates the functioning of government and the relationship of the individual person to the government, is a branch of public law. Criminal law also falls into this category as crimes are regarded as wrongs committed against the interests of the state.
Private law consists of the law which is primarily concerned with the rights and duties of individuals. If A agrees to sell a car to B for Sh. 60,000, and A delivers the car to B but B fails to pay the money, there is a breach of contract. A will seek a remedy through the courts. He may seek an order that B should be made to pay Shs. 60,000 or return the car.
Meaning of Sources
When we use the term ‘sources of law’ we may be referring to several things. The more popular meanings are as follows:
- Historical sources, including the factors that have been influential in the development o the law but themselves not recognized as law. Examples of these factors that influence the development of the law are religious practices and beliefs, local customs and opinions of jurists.
- It may also refer to places where the law can be found as for example, In statutes, law reports, text-books and decisions of courts.
- In most cases, it refers to legal resources, that is, the legal rules that make up the law. This is the meaning that we shall adopt.
Sources of Kenya law
In England, the main source of law is the unwritten law in the form of common law and the rules of equity. But in Kenya, the most important source of law is the written law which according to section 3 of the Judicature Act consists of the following:
- The Constitution of Kenya
- All other written laws including the Acts of Kenya Parliament and the United Kingdom cited in Part 1 of the Schedule of this Act, modified In accordance with Part 11 of that Schedule.
- The substance of the Common law, the doctrine of Equity and statutes of general application in force in England on the 12th August 1897. They apply so far only as the circumstances of Kenya and its inhabitants Permit and subject to such qualifications as those circumstances may render necessary.
- African Customary law. Section 3(2) provides that the High Court and all subordinate courts will apply customary law in civil cases in which one or more of the parties subject to it or affected by it is African.
- Islamic law. In Kenya, there is a separate system of Muslim Courts consisting of the Courts of Chief Kadhis and Kadhis. They possess jurisdiction In proceedings between parties who are Muslims in such matters as marriages and divorces. Originally the Kadhis courts also have jurisdiction over matter like ‘ inheritance ‘ however, since the passing of Succession Act , It is now governed by the aforementioned statute.
Written low and unwritten law
If we refer to ‘sources’ as the legal rules that make up the law, we can classify law into written and unwritten law. When we talk of unwritten law, it does not mean that the law is literally unwritten. We are referring to that portion of our law which is not enacted by parliament and which is not found in the written constitution. this unwritten law is found in cases decided by the courts, local customs, etc. written law, on the other hand, is the law embodied in the state Constitution,and in a cord or a statute.
Advantages of written law
written law, that is legislation as a sources of law has become more important than case law or precedent.It is increasingly used as a means of abolishing, amending, enacting and codifying the law.
A statute is normally required to be published before it can come into force. Because it is published and sold, it is easily accessible to the public. The law is known before enforcement so that one need not have to wait the outcome of litigation to know it.
Disadvantages of written law
On the other hand, legislation is the result of an attempt by the legislature to formulate a comprehensive law to deal with particular situations. The law so formulated has a tendency to be academic and predictive. The parliamentary draftsman, drawing on his experience, tries to provide for all possible contingencies during the drafting of the Bill. The courts, given the task of interpretation, may on occasion, find it difficult to apply specific provisions of a statute to a particular situation or there may be a lacuna or gap in the law.
Occasionally difficulties may result in a case not foreseen by the law makers. Of course, the situation can be remedied by the legislature since what it makes, it can also unmake, but the legislative process is often slow and lengthy.
Sovereignty of Parliament
Parliament is sovereign. There is no organization or person which can overrule its decisions. It can make any law on any subject but it cannot decree what is physically impossible. If it makes foolish laws it may have difficulty in enforcing them. Also, if any law is inconsistent with the Constitution of the Republic of Kenya, the Constitution prevails and the other law is void to the extent of its inconsistency.
The legislative power of the Republic rests in the Parliament of Kenya, which consists of the President and the National Assembly composed of 170 members of which 158 are elected by single member constituencies.
The maximum life of the National Assembly is five years. The Constitution provides for universal adult suffrage for every citizen of Kenya, without distinction of religion, race or sex.
Constitutional amendments. Section 47 prescribes the procedure for constitutional amendments. Any proposed amendment must receive at the second and third readings a vote of 65% of all the members of Parliament, excluding ex-officio members.
Common law. The term common law ‘ is being used in two contexts. Originally it meant the law that was not confined to one particular area, but was ad-ministered in the whole of England. This description may lead to the conclusion that enacted law (i.e. statutes) are also included in the term Common law ‘ be-cause the statutory law also applies to the country as a whole. Thus, the phrase is used in different senses. Common law often refers to the unwritten law to distinguish it from the written or statute law. The phrase is sometimes used to distinguish it from equity, the difference being that one was developed in the Court of Chancery (equity) and the other in the ordinary courts (Common law).
Equity. Equity is a word used for a collection of definite legal rules. The non-technical meaning of equity, namely ‘fairness’ or ‘ natural justice’ does give an indication of its historical origin. It originated mainly because of defects in the Common law.
Two main deficiencies were apparent, first, there were many wrongs for which there was no remedy — if a plaintiff’s case would not fit into one of the existing writs he had no claim. Secondly, the reliefs which the Common law Courts could offer were often inadequate. Thus, if B unlawfully took A’s land and the latter sued, the only relief at Common law was damages, that is money compensation. Such, compensation would be of little use to A if what he really wanted was his land. Finally, the procedure at Common law was strict — even the most elementary ‘ mistake ‘ in a writ allowed a defendant to avoid the action.
Statute Law (legislation) is written law enacted by Parliament. Parliament is Sovereign — its laws have to be enforced and cannot be challenged on the grounds that they are illegal – the only exception to this is that a statute should not be inconsistent with any provision of the Constitution.
Codification. The reduction of a country’s laws into a single code, thus making the whole of the law statute law. The law of most continental countries is codified.
Consolidation. The reduction of a number of statutes into one which repeals the former statutes.
Rules of Interpretation. Judges must follow statutes, but they have to decide the meaning of a statute. Thus even statute law is not free from judicial influence. The judiciary interpret statute by applying the following rules:
- Mischief rule. Under this rule the judge will look at the Act to see what was its purpose and what mischief in the common law it was designed to prevent.
- The Literal Rule. The wording of the Act must be construed to its literal and grammatical meaning.
- The Golden Rule. It is to some extent an exception to the literal rule and under it the words of a statute will as far as possible be construed according to their ordinary plain and natural meanings unless this leads to an absurd result.
- The Ejusdem Generis Rule. This rule states that where general words follow specific words, the general words are to be taken as referring only to those things of the same class as specifically mentioned. In Powell v Kempton Pk. Racecourse a statute prohibiting the keeping of a ‘ house, office, room or other place’ for betting with people resorting thereto did not apply to an uncovered enclosure adjacent to the racecourse.
Judicial Precedent. The decision of a judge in a superior court on a point of law which has not been reversed on appeal or overruled, binds all judges of an inferior court when faced with similar facts and may even bind the superior court itself. This is known as the doctrine of judicial precedent.
Thus a decision of the Court of Appeal binds all lower courts but not itself. Below the Court of Appeal comes the High Court of Kenya. The decisions of the High Court bind the inferior to it as magistrates’ courts and Kadhis’ courts. A High Court judge is bound by the decision of the Court of Appeal, but he is not bound to follow the previous decisions of the other High Court judges. In actual practice he will nearly always do so, unless convinced that the other judge was wrong. The magistrates’ courts are bound by all superior courts, but they them¬selves do not create any sort of binding precedent, and their judgements are not reported in the volume of Law Reports.
Advantages of precedent
- Case law is more flexible than legislation, particularly when the Court of Appeal is not bound by its own previous decisions.
- Binding precedents create certainty in law.
- The law can be adapted to meet changing circumstances.
- It can influence statute law.
- It is rich in detail.
- It smooths the ‘ rough edges ‘ of legislation.
- It becomes bulky and complex.
- It is sometimes difficult to separate the ratio decidendi ‘ from the ‘ obiter dicta’.
- The binding nature of precedent can make the law too rigid.
When a judge gives judgement his explanation for the decision that he has reached can be analyzed to reveal the basic principle of law which he is applying to the case and various other matters which assist him in arriving at the decision. The esence of the decision is known as ‘ratio decidendi’ meaning the reason for the decision. The matters not strictly of essence are called ‘obiter dicta’ meaning things said by the way. The ratio decidendi is then the rule of law applicable to the legal problems disclosed by the facts of the particular case.
Whilst obiter dicta are of less importance they may neverthe¬less be of great effect; for example in dissenting judgement or where the court sets out the principle of law but for some reason decides the case on a differ¬ent basis. The House of Lords in Hedley Byrne & Co Ltd v Heller and Partners Ltd (1963) made an important decision about negligent misstatement and liability for such statements but decided the actual case in favor of the defendent bank because of its formal disclaimer of liability. Here we have what is strictly an obiter decision being applied as a statement of law by courts hearing later cases.
The term ‘stare decisis’ means to stand upon decisions’ and is more familiar under the name of judicial precedent. It means that the judges must follow the precedents and principles of/law declared by superior courts.
A per incuriam judgement.
A per incuriam judgement occurs where a court has not referred to all relevant statutes, or the precedents which it would have followed in arriving at its decision. Its own decision contrary to the previous precedents and statutes is not binding because of oversight.
Decisions of Commonwealth Countries.
Most Commonwealth countries inherited the English common law tradition, including the principle of judicial precedent, and a large number of statutes have been enacted based on English principles of law. Hence in cases where the law is similar in all respects, judicial decisions of these countries will be given the greatest respect.
The principle of according respect and referring to cases emanating from these countries will be adopted especially when there is no local decision on the same matter.
There are times when judges, for various reasons, do not wish to apply an earlier precedent. They may adopt one of the following courses. Firstly, they may ignore or overrule a precedent laid down by a lower court, where the case is an appeal. Secondly, they may refuse to apply the earlier precedent if it is arrived at per incuriam, that is, made in ignorance of a statute or a binding precedent. Finally, they may distinguish the case when they find there are material differences in facts between the case before them and the case laying down the precedent. Sometimes such differences are high¬lighted in an attempt to avoid applying an outdated or unpopular precedent although it must be pointed out that this is the exception rather than the rule.
The case law method can work efficiently only if the cases are accurately reported. Each year the Court of Appeal and the High Court hears hundred of cases. Not all of these cases are reported. The only cases which are reported are those which contain reference to a point of law. The law reports are published to inform the lawyer just what the law is on a particular matter. They relate the facts of the case briefly to show how the law is applied in those particular circumstances.
Textbook as source of law.
The writings of certain judges and jurists are an indirect source of our law, which have no binding authority in themselves, but can influence judges in reaching their decisions. In Bastin v Davies, 1950, it was stated : ‘If a statement has appeared in a well known textbook for a great number of years and has never been dissented with in a judicial decision, it would be most unfortunate to throw doubt on it after it had been acted on . . . for so long’.
As a general rule no living writer can be cited as an authority, but the judges in practice accord the due weight to textbooks written by distinguished law men.
The principles of Customary law in any country originate from habitual practices and traditions of its people. Judicial recognition of local customs is quite common in a country populated by a variety of people with diverse cultural and religious backgrounds. However, there is no customary law that is common to all the communities or tribes.
The importance of customary law becomes clear by the fact that even during the Colonial rule English law was applied as the primary law of Kenya alongside:
- the indigenous customary laws of various African tribes,
- religious laws, like Islamic law, confined to personal matters.
After independence the Customary laws of Kenya have been accorded full recognition as a source of Kenya law by section 3(2) of the Judicature Act.
It is important to note that Customary law according to section 3 only applies:
- in civil cases, i.e. the dispute is between individuals, and the state is not involved as a party.
- it does not apply in criminal cases,
- it is not repugnant to natural justice and morality,
- it is not inconsistent with any written law of Kenya.