Sources of Kenya Laws-modified for Ccm on 26-04-2011(1)

Odiwuor Kelly- B. Com, LL.B, Dip-Law (KSL) – Advocate / [email protected] Eunice A. Kelly- LL.B, LL.M, Dip-Law (KSL) –Advocate

020 2242206 / 0721 438511 / 0723216650 / http://www.oakadvocates.co.ke

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SOURCES OF KENYA LAWS INTRODUCTION. The phrase „source of Law‟ may be understood differently by different

philosophers and legal scholars.

Some of the meanings attributed to the expression „Source of Law‟ include:

1. Social forces that direct law i.e. the sociological factors which created an

impetus for forming particular rules or regulations of law within a given

jurisdiction e.g. Culture, Morality, Religion, Science and Technology,

Economic or political environment e.t.c.

2. Law making entity / Institutions within a given society e.g. parliament.

3. Territorial / Geographical origin of the principle rules or law in a given

society e.g. much of Kenyan law originates from British law.

We shall however concern ourselves more with formal sources of law in Kenya.

Harvey describes sources of law as “Defined repositories of authoritative rules to

which the law appliers, the ordinary citizen, practicing advocates, executive

officers of Government and more importantly, the judges turn to for guidance on

applicable norms”.

The formal sources or law in Kenya are set out in Section 3 of the Judicature

Act Cap. 8 Laws of Kenya, which says:

3. (1) The jurisdiction of the High Court, the Court of Appeal and of all

subordinate courts shall be exercised in conformity with -

(a) the Constitution;

(b) subject thereto, all other written laws, including the Acts of Parliament

of the United Kingdom cited in Part I of the Schedule to this Act,

modified in accordance with Part II of that Schedule;

(c) subject thereto and so far as those written laws do not extend or apply,

the substance of the common law, the doctrines of equity and the

statutes of general application in force in England on the 12th

August,1897, and the procedure and practice observed in courts of

justice in England at that date;

but the common law, doctrines of equity and statutes of general application shall

apply so far only as the circumstances of Kenya and its inhabitants permit and

subject to such qualifications as those circumstances may render necessary.



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Section 3(2) of the Judicature Act Cap. 8 says:

„The High Court, the Court of Appeal and all subordinate courts shall be guided by

African customary law in civil cases in which one or more of the parties is subject

to it or affected by it, so far as it is applicable and is not repugnant to justice and

morality or inconsistent with any written law, and shall decide all such cases

according to substantial justice without undue regard to technicalities of

procedure and without undue delay‟.

Summarizing the above quoted Section 3, leaves us with the following list of the

sources of Kenyan law:

1. The Constitution.

2. Acts of Kenyan parliament.

3. Specific Acts of the parliament of the United Kingdom cited in Part I of

the schedule to the Judicature Act.

4. Subsidiary /Delegated /subordinate legislation.

5. English statutes of General application, in force in England on the 12Th

August 1897.

6. The substance of Common law in force on the 12th August 1897

7. Judicial precedents.

8. The doctrine of Equity in force in England on the 12th August 1897.

9. Procedures and Practice observed by courts of Justice in England on 12th

August 1897.

10. African customary law.

Other recognized sources of law include:

i. Hindu Law ;and

ii. Islamic Law.

The current Constitution of the Republic of Kenya acknowledges and entrenches

two other sources of the law of Kenya:

i. Article 2(5)- General rules of international law;

ii. Article 2(6)- Any treaty or convention ratified by Kenya e.g. the Rome

Statute.

These various sources of law are explained below.

THE CONSTITUTION. Any modern state or institution is expected to deal with various types of social,

political and economic problems.

To carry out these functions smoothly it needs a comprehensive framework

through which it operates.

These responsibilities would accordingly be integrated into the Legislative,

Executive and Judicial operations.

The constitution is therefore the single formal document, which defines the

composition and powers of different organs of the state or the institution and

their relationship with each other and to private citizens.



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Lord James Bryce defines the constitution as consisting of „those rules of laws

which determines the form of its government and the respective roles of its

organs and the respective rights and duties of it towards a citizen and of a citizen

towards the Government‟.

A constitution may be written or unwritten. A written constitution is one which

most of the important constitutional provisions are enacted in a formal document

or series of documents.

A written constitution is generally considered to be rigid i.e. can only be changed in

some manner e.g. by requiring a specified majority.

Kenya‟s current constitution promulgated on the 27th of August, 2010 is a written

constitution just like the previous one. It provides for a rigorous approach to

amendment at Chapter 16 to guard against arbitrary and uncalled for amendments.

It has a total of 18 Chapters,264 Articles and 6 schedules.

Article 2(4) of the constitution establishes its unchallengeable position over any

other written or unwritten law i.e. the supremacy of the constitution.

The constitution of Kenya establishes the legislature (Chapter 8), the executive

(Chapter 9), the judiciary (Chapter 10) as well as the fundamental rights and

freedoms of individuals (Chapter 4).

A study of constitution entails consideration of the following:

a. Historical circumstances in which constitution came to be adopted.

b. Political and philosophical values underlined in the constitution i.e. Liberal

democracy, the preamble etc.

c. The position of authority enjoyed b y constitution within the legal order i.e.

supremacy of the constitution.

d. Individual provisions of the constitution and their implications.

e. Amendments and interpretation for practical operations of the

constitution.

Supremacy of the constitution. In countries where there exists a written constitution, the constitution invariably

enjoys a pre-eminent position within the legal order. The constitution is regarded

as the law within which the framework or detailed rules and practice are to be

laid out. The constitution takes precedence and supremacy over all other laws. The

theory behind supremacy of the constitution is that it embodies a contract

between the government and the governed. The constitution must therefore not

be altered in the same manner as ordinary legislation.

The constitution is or is supposed to be the product of the exercise of the

constituent power inherent in the people and it is from it that all legislative Acts

derive their authority.

In the context of Kenya, the concept of the supremacy of the constitution is

captured in Article 2 of the constitution. It provides that;

- The constitution is the supreme law

- The validity or legality of the constitution is not challengeable

- Any act or omission in contravention of the constitution is invalid



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- It is binding upon all persons and state organs at all levels

- State authority must be exercised as authorised by the constitution

- Every person is obligated to respect, uphold and defend the constitution

- Any attempt to establish a government without complying with the

constitutions requirement in doing so is unlawful

This provision further subject other laws to the constitution and in particular, it

provides that:-

- Any law including customary law that is inconsistent with the constitution is

void to the extent of inconsistency

- Any treaty or convention ratified by Kenya forms part of the constitution

Amendment of the Kenyan Constitution (Chapter 16, Articles 255,

Article 256, Article 257) Article 255 requires that a referendum be held incase a proposed amendment

touches on the named areas which include:

(a) the supremacy of the constitution

(b) the territory of Kenya

(c) the sovereignty of the people

(d) the Bill of Rights

(e) the term of office of the President

(f) the independence of the Judiciary

(g) the functions of Parliament

(h) the objects, principles and structure of devolved government A proposed amendment shall be approved by a referendum if at least 25% of the

registered voters in each of at least half of the counties vote in the referendum

and is also supported by a simple majority of the citizens voting in the

referendum.

An amendment not relating to matters aforementioned shall be enacted either by

Parliament (Art. 256); or by the People and Parliament (Art. 257).

B). ALL OTHER WRITTEN LAWS AS THE SECOND SOURCE

OF LAW OF KENYA -SECTION 3(1)(B). All other written laws refer to the legislations or statutes. Legislation in the

context of Kenya specifically include:

- Acts of parliament.

- Certain specific Acts of U.K. Parliament.

- Statute of General application.

- One Indian Act – Transfer of Property Act.

- Delegated legislation.



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ACTS OF PARLIAMENT. During the colonial period in Kenya, three institutions exercised legislative power.

i. The British Parliament which had powers to legislate for colonies.

ii. The British Crown – It had powers to legislate for the colonies by virtue of:

Sovereign prerogatives.

Through British settlement Act of1887.

Through the Foreign Jurisdiction Act 1890 by Order in Council. iii. The local legislature.

In Kenya today the power to legislate is vested in the Kenyan Parliament which

consists of the National Assembly and the Senate established under Chapter 8 of

the Constitution.

JUDICIAL PRECEDENTS.

Judicial precedent means decisions of judge‟s laying down legal principles for cases

coming before it. They are also referred to as case law. They are found in judicial

decisions or judgments. They provide common reference to judge made law. They

are found in law reports. Both common law and equity have developed through the

doctrine of judicial precedents and stare decisis, which means that in trying and

deciding cases as a judge, he must look back to see how the previous judges have

dealt with the case involving similar facts.

In doing this, he discovers principles of law relevant to the case before him and

his decision in that case will need to be consistent with the existing principles in

that branch of law.

Judicial precedents contains two parts:

- Ratio decidendi. - Obiter dictum.

Ratio decidendi and Obiter dicta. The ratio decidendi is the rule acted on by the court in coming to the decision in a

particular case i.e. the vital reason, which leads the judge to decide a particular

issue, or the reason for his decision. It is the ratio of the decision that

constitutes the binding precedent and the judge must therefore decide what is

the ratio of the particular case and to what extent it is relevant to the case

before it. Ratio decidendi is determined by ascertaining the facts treated as

relevant by the judge together with his decision on these facts.

The rest of the judgement, which includes explanations and other cases cited in

his argument would form Obiter dicta i.e. a by-the-way comment; or comments in

passing. An Obiter dictum is not binding but maybe important in suggesting solutions

especially where it arises from the highest court; it is persuasive in nature.

In Kenya, only the court of appeal and the High Court pronounce precedents.

Subordinate courts do not. Decisions of the Court of Appeal are binding on the



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High Court and on the Subordinate Courts whereas decisions of the High courts

are only binding on the Subordinate Courts.

The decisions of the High Court and of the Court of Appeal are not binding on

themselves although the court will rarely depart from its previous decisions.

There are four types of precedent:

i. Declaratory precedent: This is where the judge applies an existing rule of

law without extending it, he is merely declaring the law and his judgement

forms what is known as declaratory precedent.

ii. Original precedent: This occurs when in a particular set of facts has no

precedent i.e. previous decision, which the court can rely on. In this way, he

lays down an original precedent to be followed in future in a similar set of

facts in a case.

iii. Distinguishing precedent: This is done be establishing that the facts of an

earlier decision are different from those in the case at hand in a material

way, so that the earlier precedent is held not to apply.

The earlier case remains law in its own circumstances, while the one on hand

though not following it, also becomes law. To the extent that a distinction

has been made between the two cases, the court is said to have laid down a

distinguishing precedent. A distinguishing precedent mainly occurs where

there is a slight variation of facts and as such it is necessary to avoid

miscarriage of justice or where the judge(s) do not wish to be bound by an

earlier decision.

iv. Overruling precedent: A case is said to be „overruled‟ if it is expressly

deprived of all legal effect so that it ceases to have any authority at all.

This is done where it is felt that the earlier case was wrongly decided or

that it was decided without regard to an existing and legally tenable

authority of principle of law. A court can only overrule its own decisions or

those of court lower in the hierarchy of courts. It is bound by decisions of

a court of higher level than it unless it is possible for it to distinguish those

decisions as discussed above.

On the other hand Stare Decisis literally mean „let the decision stand‟. Stare

decisis determines the weight to be attached to particular precedents.

The general rule provided by the doctrine of Stare Decisis is that a decision made

by a court of higher level binds all lower courts. A lower court cannot therefore

over-rule a higher court on any decision.

In Dodhia Vs. National Grindleys Bank Co. Ltd, the court of appeal of Eastern

Africa laid down the following principles on the applicability of stare decisis:-

1. Subordinate courts are bound by decisions of superior courts.

2. Courts of appeal are bound by their own previous decisions.

3. As a mater of judicial policy, the court of appeal as the final court in East

Africa should, while regarding its previous decisions should be free in both

criminal and civil cases to depart form them wherever it appeared right to

do so.



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However a judge may refrain from a binding precedent in certain circumstances

namely:-

1. Distinguishing: This is the practise of showing that the two cases have

different material facts or relate to different legal issues. In such a case,

the earlier decision is not a precedent.

2. Change in circumstances: If the earlier decision has been overtaken by

changes so that it does not reflect the prevailing circumstances.

3. Per-incurium: this literally to mean ignorance or forgetfulness of law. A

judge may refuse to apply an earlier decision in a subsequent case if it is

evident that that decision was arrived at in ignorance or forgetfulness of

law.

4. Improper conviction: In Kadhi Vs. R (1956) it was held that a judge was

free to refrain form an earlier decision if its application perpetuated an

improper or erroneous conviction in criminal case.

5. Overruled by statute: A judge is not bound to apply a binding precedent if

it has been overruled by an Act of Parliament, as the prevailing law is

statutory.

6. Where the ratio-decidendi relied upon is too wide or obscure.

7. If the ratio-decidendi relied upon is in conflict with fundamental principal

of law.

8. If the decision relied upon is one of the many conflicting decisions of a court

of co-ordinate jurisdiction.

Advantages of Case law. - Leads to consistency in application and development of the principles of

each branch of law.

- Enables lawyers to focus with reasonable certainty what the attitude of

court is likely to be in a given set of facts. These enable them to advise

their clients reliably.

- The system is essentially practical because the courts are perpetually

dealing with actual situations.

- It is a flexible system; it can provide an answer to new legal problems.

- The recording of cases enables good level of certainty and precision.

- It‟s more dynamic and keeps pace with changing needs of the society since

case law deals with daily practical problems.

Disadvantages of Case law. - May restrict discretion of the judges.

- Sometimes, it is difficult to distinguish what exactly would be the ratio decidendi in a particular case.

- Due to large number of cases, there is increasing bulk and complexity in

each branch of law.



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Advantages of Legislation / Statute law over Judicial precedents / Case

law as a source of law. 1. Abrogative powers: It has the powers to repeal existing laws a once.

2. Separation of powers: The law-making mandate is left to the legislature

rather than courts, whose primary role is to adjudicate. This enables

division of work.

3. Declared in advance; As opposed to precedent, which is created and

declared in the very act of applying and enforcement.

4. Anticipation of situation; That has not arisen i.e. matters that are likely

to occur in future.

5. Natural Justice: Legislation satisfies one of the requirements of natural

justice that law should be known before it is applied i.e. it is published and

so everybody has the access and opportunity to know the law whereas case

law operates retrospectively.

6. Accessibility and tidiness: Legislations are generally clear and more

accessible hence their superiority while case law is buried from sight and

knowledge in huge and daily growing reports or past legislations.

One disadvantage of statute law is its strict interpretation. It is embodied in an

authoritative form of written words. It is thus the duty of courts to interpret

this letter of the law.

CERTAIN SPECIFIC ACTS OF U.K PARLIAMENT. Some of the Act of parliament of United Kingdom forms a part of statute law of

Kenya. The Judicature Act section 3 provides for Acts of Parliament of the

United Kingdom cited in Part I of the Schedule to the Act, modified in accordance

with Part II of that Schedule form part of Kenya laws.

Following are some of the above said Acts of parliament of United Kingdom.

a. Evidence Act of Britain (1851) Section 7 and 11. b. The foreign Tribunal Evidence Act (1856).

c. British Law Ascertainment Act (1859)

The application of such Acts of U.K Parliament got root into Kenyan legal system

by the following ways:

- The British parliament regarded itself as the paramount legislative body

for the whole Europe. It therefore enacted legislations from time to time

for application in all or some of its colonies.

- There was in place an Act known as the British settlement Act 1887.

- This Act gave powers to the crown to make laws for all settled colonies.

Acts made under this law were implemented through Orders –in- Council.

STATUTES OF GENERAL APPLICATION. The phrase Statute of General application is not specifically defined in the

Judicature Act or any other legislation.



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However, Kenyan courts have over the years accepted several United Kingdom

statutes in Kenya as statutes of General Application and applied them in

determining cases before the court.

Three basic criteria MUST be satisfied in order for a U.K Act to be received and

applied as a statute of General Application in Kenya:

1. MUST have been in force in U.K on 12/08/1897.

2. MUST have been applicable generally in the U.K as at that date i.e. must

not have been a statute applicable only to a section of the U.K or only a

section of the population.

3. MUST be suitable for the circumstances of Kenya and its inhabitants.

Professor Allot in an article entitled ‘New Essays in Africa Laws’ has outlined

that for a statute of U.K to be of general application, it must fulfill the following

conditions:

a. The statue must be a public general Act of U.K legislature as distinguished

from a local Act or Private law.

b. The Statute must have been in force in England at specified reception date

c. The statute must be suitable for general application outside England.

d. The courts of the particular country concerned must rule on it as a statute

of general application.

e. Where there is a local enactment that is inconsistent with the U.K. statute,

then the local legislation prevails.

Some of the Statutes of General Application applied in Kenya include:

- Married Women Property Act of 1882 – see case of I Vs. I (1917)

- Infants Relief Act of 1874

- Factors Act 1889

- Indian Transfer of Property Act (ITPA 1882)

DELEGATED LEGISLATION. Although the legislative authority of the republic is vested in the parliament, it

does delegate its law-making mandate to various institutions, bodies or officials.

The laws made by such bodies are called subsidiary or subordinate or delegated

legislation. The laws made hereupon include by-laws, rules, orders, regulations,

proclamations etc. made by subordinate competent bodies e.g. local authorities,

professional bodies, statutory boards, government ministers etc in exercise of

delegated legislative powers conferred upon them by parliament through an

enabling or parent Act.

The body of officials making subordinate legislations must act strictly within the

confine of the power donated by the legislature. Subsidiary legislation may

therefore be quashed by the court of law if it goes beyond the donated powers i.e.

becomes ultra-vires the parent Act.

Such ultra –viresness may be of two types;

a- Substantive ultra vires i.e. where the authority making delegated

legislation exceeds the powers granted by parliament.



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b- Procedural ultra vires: Where the authority making the delegated

legislation contravenes any mandatory procedure set out in the parent

statute.

Why Delegation contrary to the constitution?

Although Chapter 8 of the Constitution vests legislative power of the republic in

parliament, parliament often delegates legislative power to other persons or

bodies. Delegated legislation is often described as a necessary evil. It is a

constitutional impropriety since it violates the doctrine of separation of powers.

Parliament delegates law making powers for various reasons namely:

1. Parliament is not always in session.

2. Inadequate parliamentary time.

3. Lengthy law making procedure.

4. Lack of flexibility in law making.

5. Lack of expertise in all fields.

6. Increase in social legislation.

Characteristics of delegated legislation:

1. All delegated legislation is made under an express provision of an act of

parliament.

2. Delegated legislation must be consistent with the provisions of the Enabling

or Parent Act.

3. Delegated legislation must be published in the Kenya Gazette before coming

into force.

4. Delegated legislation is recognized as a source of law of Kenya by Section 3(1)(b) of the Judicature Act. It is a written source of law and prevails

over all unwritten laws however it is subordinate to statue law and the

constitution.

Advantages of Delegated Legislation. - Time: Saves parliamentary time. The parliament therefore provides the

whole framework leaving the details to be provided by the subsidiary

legislation.

- Speed: The parliamentary law making process is slow and some situations

may require urgent intervention. Moreover this may happen when the

parliament is in recess. - Foresight: Parliament cannot foresee all situations and problems that may

require legislation. Moreover they also lack adequate skills and research

facilities for all laws. - Less rigid: Delegated legislation can be amended or repealed easily since

the process is relatively flexible. - Technicality of subject matter: Technical subject matter is dealt with by

experts in the specific field e.g. by laws are made by local authorities to

regulate activities within their administrative areas. Professional bodies

make regulation to govern their profession.



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- Emergency situations: In case of emergency, the president can use

subsidiary legislation since he does not then need to go through

parliamentary procedures.

Disadvantages of Delegated Legislation. - Lack of adequate parliamentary control.

- Lack of adequate judicial control.

- Un-democratic because sometimes the parliament may delegate its law

making mandate to none elected body.

- Bulkiness since there exists too many statutes made under delegated

powers.

- Danger of sub-delegation. This arises for example in such powers given to

a minister who in turn delegates the power to another person.

- Lack of publicity: Access to the public is not easy, yet ignorance of law is

no defense. Lord Howard said “A citizen is does not know what it is, he does

not know where to find it, he probably would not understand it in relation to

law if he found it but he is bound by it”.

- Retrospective operation: Most of delegated legislations have retrospective

operation.

CONTROL OF DELEGATED DLEGISLATION. Both parliament and courts of law have in various ways attempted to control

delegated legislation. However, these attempts have been unsuccessful.

Parliamentary safe guards or mechanisms or control a. Parliament delegates law-making powers to specific person or bodies e.g.

government ministers, professional bodies, local authorities etc.

b. Parliament prescribes the scope and procedure of law making and delegates

must comply with such prescriptions.

c. The Enabling or Parent Act may provide that drafts rules or regulations be

circulated to interested and affected parties for comments.

d. The Enabling or Parents Act may provide that draft rules or regulations be

laid before the minister for approval. This is political control, which is

largely ineffective.

e. Under Sec. 27 (1) of the Interpretations and General Provisions Act Cap. 2,

unless otherwise provided, delegated legislations must be published in the

Kenya Gazette before coming into force. However the delegate is

empowered to backdate the date of commencement.

f. Under Sec. 34(1) of the Interpretation and General Provisions Act, unless

otherwise provided, delegated legislation must be laid before parliament

for approval. Parliament is empowered to declare to declare the rules or

regulations null and void by or resolution to that effect whereupon the

rules become ineffectual.

Parliament control of delegated legislation is to a large extent ineffective by

reason of inherent and operation weaknesses of the institution.



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Judicial control of delegated legislation This is control of delegated legislation by courts o law.

Courts of law may control delegated legislation through the doctrine of Ultra-vires

i.e. declaring it null and void. There are two types of ultra-vires namely substantive and procedural.

Substantive Ultra-vires A court of law may declare delegated legislation substantively ultra-vires if on

application it is satisfied that the delegate: -

1. First, exceeded the scope prescribed by the enabling or parent Act or,

2. Acted unreasonably, on the basis of facts or the case or,

3. It exercised a power for a purpose other than that for which it was conferred

(abuse of power)

Procedural ultra-vires The delegates must comply with the procedure of law making prescribed by the

Enabling or Parent Act. Delegated legislation made in violation of the procedure

has a procedural defect and may be declared procedurally ultra-vires by a court of

law.

In the case of Mwangi & Maina Vs. R, the appellant were charged before the

resident magistrates court for overcharging a haircut in their salon. They were

convicted and sentenced. Under the Defense Control Regulations 1948, the Price

Controller was empowered to fix the price of certain services including a haircut.

He had fixed the price at 50 cents and the appellants had charged one shilling.

The appellants‟ case was that the delegated legislation in question was procedurally

defective, as it had not been published in the Kenya Gazette as required by law.

The court was satisfied that the procedure of law making has not been complied

with and declared the regulations procedurally ultra-vires. The appellant‟s

conviction and sentence was set aside.

Judicial control of delegated legislation is ineffective for two reasons:

1. Courts are by their nature passive. An application must be made by an

interested party.

2. The applicant must prove his case before the rule or regulations are

declared ultra-vires.

COMMON LAW. This is a branch of law of England which was developed by the ancient common law

courts from customs usages and practise of the English people. These courts

applied the people‟s customs to resolve legal problems thereby giving the customs

the effect of law. The courts of Exchequer, Kings Bench and Common pleas were

critical in the devolvement of the common law. These courts standardised and

universalised customs. Common law therefore consists of rules formulated by

courts on the basis of customs.

Common law originated from the attempts by the Norman King who came to power

in England in the year 1066 A.D. to establish a uniform system of law.



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Previously, different customary laws were applicable in different parts of England.

The king appointed the royal officials to go round the country resolve disputes

amongst the subjects and in so doing, establish rules of law to be applied in similar

types of disputes in future. In the process, they laid certain principles, which over

the time came to be referred to as the common law.

It was called the common law because it was intended to be applicable commonly

through out the country. These centralized systems of law and order gradually

matured and developed a national law. The courts that administered justice

according to these rules were called common law courts.

The substance of common law got incorporated in the Kenyan law through the

Judicature Act 1967 which inter alia states in Section 3(1)(c) „The jurisdiction of

the High Court, Court of Appeal and all Subordinate Courts shall be exercised in

conformity with … the substance of the common law ….in force in England on the

12/08/1897‟. This section 3(1)(c) is called Reception clause.

Problems or shortcomings of the common law. 1. Writ system: - It did not recognise all possible complains and many persons

had no access to the judicial system. This encouraged corruption and

lengthened the process of administration of Justice.

2. Delay: - The administration of justice at common law was extremely slow.

Defendants often relied on standard defenses such as Sickness, being cut

off by floods, being away on a crusade, etc.

3. Procedural technicalities: - The process of administration of justice at

common law was fairly technical. Court paid undue attention to minor points

or procedure and many god actions were lost on procedural points.

4. Inadequate remedies: The common law courts had only one remedy to offer

namely a monetary award on damages. They had no jurisdiction to compel

performance or restrain the doing of an act.

5. Non- recognition of trust: The common law system did not recognize these

relationship hence beneficiaries had no remedies against errant trustees

and trustees had no enforceable rights.

6. Inadequate protection of borrowers: At common law a borrower who failed

to pay the amount borrowed within the contractual period of repayment

often lost his security as well as the amount paid as there was no extension

of time.

7. Rigidity or inflexibility: The doctrine of stare-decisis, which insisted on the

reliance on previous decisions in subsequent similar cases, made the common

law system inflexible and unresponsive to changes.

EQUITY The litigants who were dissatisfied with the decisions of common law turned to

the King and petitioned him to do justice to His subjects and provide them with an

appropriate remedy.

At first the King Himself attended to the petitions. With the increasing pressure

of work he later handed over these petitions to Lord Chancellor.



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The Lord Chancellor set up his own court to chancery where he or his

representatives sat and decided the cases. The decisions of the chancellor were

guided with equity or fairness. Consequently the decisions made by the chancery

came to be known collectively as equity.

In practice, both common law and equity operated as parallel systems each set of

courts regarding itself as bound by its own precedents.

However, with time, both courts were brought under the same roof and as it are

today, by the English Judicature Act of 1873 and 1875. It therefore became upon

the judge to adopt the rule of equity and fairness particularly where common law

provides no appropriate remedy.

Equity modified the common law in the following ways:-

1. Equity‟s exclusive jurisdiction: Equity recognizes the trust relationship,

beneficiaries and trustees had enforceable rights and duties against each

other.

2. The philosophy of Equity establishes some popular ideologies through

maxims of which a few are quoted below:

- Equity will suffer no wrong without remedy – Ubi jus ibi remedium.

- He who seeks equity must do equity.

- Delay defeats equity.

- Equity looks to intent rather than form.

- Equity looks on what is done which ought to he done.

- Equality is equity.

- Equity acts in persona

3. Equity concurrent jurisdiction: Equity developed additional remedies e.g.

injunction, specific performance, rescission, account tracing, winding up,

appointment of receiver etc.

4. Equity enhanced protection of borrowers: by recognizing the equity of

redemption and the equitable right to redeem.

5. Equity ancillary jurisdiction: Equity developed the procedural mechanism of

discovery of documents, which facilitates production of evidence before

the courts so as to avoid proceedings which are ambushing to the parties.

For many years the common law courts and the Lord Chancellor‟s courts operated

separately and claimants had to file cases in the appropriate court however the

two systems were merged by the English Judicature Act of 1873 and 1875.

To what extent are Common law and Equity sources of law in

Kenya ? Section 3 (1) (c) of the Judicature Act provides that English common law and the

doctrines of equity shall be a source of law in Kenya. However there are some

qualifications, provided in the proviso to that section, as discussed bellow:



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1. The Constitution: Common law and Equity shall only be applicable in Kenya

subject to the Constitution.

2. They shall apply subject to all other written laws. That is to say that

common law and equity shall not apply where exists a specific rule of law in

Kenya which is inconsistent with it.

3. Operational significance of the reception date- 12/08/1897: This is to

mean that only the doctrines of equity, substance of common law and

statutes of general application which existed in England as of the 12th

August 1897 would be relevant for application in Kenya. The practice

however is that decision in the commonwealth courts including England, even

after the reception date has always been recognized by Kenyan courts.

5. Quantum of received laws: i.e. as the circumstances of Kenya and its

inhabitants permit.

In the landmark judgment of Lord Dening in the case of Nyali Ltd Vs. A. G (1956), he said “… this wise proviso should I think be liberally construed. It is recognition

that the common law cannot be applied in foreign lands without considerable

qualifications. Just as with the English Oak, so is the English law. You cannot

transplant it to African continent and expect it to maintain the tough character it

has in Britain.

It will flourish indeed but it need tender caring, so with common law. It has many

principles of manifest justice and good sense which can be applied with advantage

to the people of every race and culture every world over but also has many

refinements, subtleties and technicalities, which are not suitable to other folks.

These offshoots must be cut away. In these far of lands the people must have a

law which they will understand and which they will respect. The common law cannot

fill this role except with considerable qualifications…‟

INTERPRETATION OF STATUTES (STATUTORY

INTERPRETATION) It is the primary duty of the judiciary to interpret laws. Interpretation of

statutes simply means an explanation or an exposition of the intention of legal

provision.

Definition: Interpretation or construction means the process by which courts seek

to ascertain the meaning of legislation through the medium of authoritative forms

in which it is expressed. – Viscount Salmond. Purpose: The main object of interpretation is to help the judge to ascertain the

intention of the legislature or to confirm it within limits which the judges may

deem reasonable or expedient.



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APPROACHES FOR INTRPRETATION OF STATUTES.

- Analytical / Logical Approach: In this approach, the words are to be given meaning as they appear.

This theory considers the judge as a mere mechanical instrument whose function

is only to pronounce the meaning of law as expressed in a statute.

It is under this theory that several rules of statutory interpretation have been

developed

- Social Approach: This theory advocates a view of judge as a social engineer and therefore in

interpreting statue the judge must endeavor to discuss and give effect to the

social utility or good intended to be achieved by the particular statute.

- Free Intuition Approach: This is by giving the Judges freedom to interpret law.

This school of thought states that in interpreting statutes, the judge should

declare what he considers to be the law even if his perception may not be in line

with the strict meaning of words appearing in the statute even to depart from the

expressed language contained in the statue.

Scholars have expressed the view that different approaches should be adopted in

interpreting different kinds of legislation e.g. Penal legislation should be

interpreted in favor of the accused in circumstances where words used in the law

are ambiguous. It is rather ten accused criminals go scot-free than have one

innocent person convicted. In social welfare legislations e.g. Housing, Education,

Medical etc, the Judge should bear in mind the social utility or good to be

achieved be the legislation.

There are two broad aids to statutory interpretation:

1. Statutory aids,

2. Non-statutory aids.

STATUTORY AIDS.

These are means which are available in the statutes to assist in understanding of

legislation. They are outlined and discussed bellow.

1. Interpretation and General Provisions Act (Cap.2)

The long title of this Act provides that it is an Act of Parliament to make

provisions in regard to the construction, application and interpretation of written

law, to make certain general provision with regard to such law and for like

purposes.

This Act contains a definition of various terms that commonly occur in written

laws.

However, Cap 2 does not apply in the interpretation of the constitution.

2. Definition section in a particular statute.

Most aids of parliament contain a definition section which gives the meaning of

various words appearing in that statute.

This is usually in either Section 2 or otherwise, in Section 3 of the statute.



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3. Various tools within a statute.

Other tools of interpretation are the Long and Short title, Preamble, Marginal

notes, Heading to sections and Sub – section, Schedules, Punctuations etc.

NON – STATUTORY RULES. There are a number of recognized rules or canons of statutory interpretation,

which have been developed by the courts namely:

1. Literal Rule:

According to this rule, the wording of the Act must be construed according to its

literal and grammatical meaning whenever the results may be.

In addition, the same words must be construed through out the act in the same

sense. In case of old statutes, regards should be given to the contemporary

meaning of the word if there has been a change with the passage of time.

In Shah Vs. Barnet Borough Council (1983) The Education Act mandated the local

authority to give scholarship to persons who had been „Ordinarily resident‟ with its‟

area of jurisdiction for at least three years. The house of Lords held that the

word „Ordinary resident‟ should be given its ordinary meaning the applicant was

then given scholarship.

In the case of Whitney Vs. Chappell (1868) The statute concerned with electoral

mal- practices had it as an offence to personate „any person entitled to vote at an

election‟ The accused person had personated a deceased voter and the court using

the lateral rule that there was no offence because the person (the deceased) was

not entitled to vote.

2. Golden Rule:

This is a modification of the literal rule and status that literal meaning may be

ignored where it results in absurdity or where a study of the statue as a whole

reveal that decision reached be applying literal rule is contrary to the intention of

the parliament.

In the Case of Re-Singworth (1935) Administration of Estates Act provided for

the distribution of estate of an interstate among the next of kin. The court

decided that the Act did not confer a benefit upon the person who had murdered

the interstate even though the murderer was the interstates next of kin. (He had

murdered his Mother)

3. Mischief Rule (Rule in the Hydons’ case): This states that the court will look at the Act to see what were its purpose and

the mischief in the existing law it was designed to prevent. Where a statute is

passed to remedy a weakness in the law, the interpretation that will correct that

weakness is the one to be adopted.

Illustration: In the case of Gardiner Vs. Sevenhooks (1950). A certain Act

required occupiers of premises to comply with certain safety provisions. Gardiner

who occupied „a cave‟ was served with a notice under the act. But he appealed

arguing that a cave could not be considered as a premise for the purpose of the

Act.



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Held: The Act being a safety Act was designed to protect persons in the

neighbourhood and those working in place of storage. Therefore the cave was held

to be a premise for the purpose of the Act.

4. Ejusdem Generis: This means „of the same kind or nature‟.

Under this rule, where general words follow particular words, then the general

words are construed as being limited to the same kind as particular words.

Illustration: Case of Lane Vs London Electricity Board (1955) - Some regulation

required safety measures to prevent danger from shock, burn or any other injury. The plaintiff was an electrician employed by the defendant to install lighting and

while doing so, he tripled and fell and sustained injuries. Held: That whereas he

may be entitled to compensation for negligence at common law, he could not

recover damages under the regulation since danger from falling was not ejusdem generis as the specific words referred to forms of danger resulting from contact

with electricity.

5. Expressio Unius Est Exclusio Alterius: This means that express mention of one implies exclusion of others. Under the

rule, where specific words are used and not followed by general words, the act

applies only to the instances mentioned.

6. Noscitur a sociis: This means that as doubtful word may be ascertained by reference to the meaning

of words associated with it i.e. the meaning of a word can be gathered from its

context.

Illustration: Muir Vs Keay (1875) In this case the Refreshment House Act stated

that, Houses, Rooms, Shops or other buildings kept open for public refreshment

and entertainment must be licensed. The defendant had a place called „The cafe‟

where persons were found during the night being supplied with cigars, coffee, bees

etc. The defendant argued that the place was not for entertainment as there was

no music and dancing.

Held: The court held that what was happening at the place was entertainment.

7. Ex visceribus actus:

This means that the statute must be read as a whole. Then only the intention of

the framers of the statute can easily be gathered and understood.

PRESUMPTIONS

In their attempt to construe statutes, courts of law are guided by the following

presumptions or assumptions;

(i) That the statute was not intended to change or alter the common law.

(ii) That the statute was not intended to affect the crown.

(iii) That the statute was not intended to interfere with vested rights of individual.

(iv) That the statute was not intended to impose liability without fault.

(v) That the statute was not intended to have extra-territorial effect.

(vi) That the statute was not intended to be inconsistent with international law.



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(vii) That an accused person is presumed innocent until proven or has pleaded

guilty.

AFRICAN CUSTOMARY LAW. Customary law is generally understood to be rules of law derived from the customs

and usages of different communities. A custom is a habit, norm or usages by a

given community that has lasted over time and has its roots in wisdom, need and

character of a particular community.

Before the arrival of the British and other European colonialists, indigenous legal

institutions were to be found everywhere. These institutions were customary in

origin. It is erroneous to assume that indigenous customary law of the various

African societies were basically uniform. There were points of similarities such as

the institution of chiefs or the elders.

There were enormous varieties both in structure and content between the legal

systems of the various communities, which were in different stages of economic

and political development. One of the major points of similarities between all these

customary laws was that they were unwritten and there was no written legislation,

law reports, legal instruments or written legal process.

The main reason why customary law is ranked second to the European law and the

separate application was mainly due to its unwritten character. The arrival of the

European colonial powers imported a fundamental revolution in Africa legal

arrangements, the results of which are with us to this day.

Each colonising power when it had established its rule in a new territory, it first

introduced its own legal system or a variant of it as the fundamental law or a

general law of its territory. Secondly, it tolerated traditional African law and

judicial institutions so long as these customary traditions did not interfere with

colonial administration of the states and where they did so interfere, they were

branded repugnant to justice and morality of the civilised people.

The statutory application of customary law is provided by two statues:

- Judicature Act Cap. 8 laws of Kenya.

- Magistrates Courts Act Cap. 10 laws of Kenya.

The judicature Act Section 3(2) says „The High Court, Court of Appeal and all

Subordinate Courts shall be guided by African Customary Law in civil cases in

which one or more of the parties are subject to it or affected by it, so far only as

it is applicable and it is not repugnant to justice and morality or inconsistent with

any written law, and shall decide all such cases according to substantial justice and

without undue regard to technicalities of procedure and without undue delay.

This Section 3(2) has been referred to as Repugnancy clause.

- There is no definition of Customary Law in the Judicature Act thus leaving

us to infer to the Magistrates Act Cap. 10 for meaning of customary law,

which is explained in Section 9.



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Qualification of Customary Tradition as a source of law. It will be seen as ingredients of repugnancy clause, that the following elements

affects the application of customary law:

a. Customary law applies only to civil cases. This meant that customary law had

not developed to a stage where it could handle criminal justice.

The Magistrates Courts Act Cap. 10 Section 9 specifies matters regarded as

African customary claims. These include: -

i. Land held under customary tenure.

ii. Marriage, divorce, maintenance or dowry.

iii. Enticement of or adultery with a married woman.

iv. Seduction or pregnancy of an unmarred woman or girl.

v. Maters affecting status and in particular the status of woman widows,

children, including custody, adoption, guardianship and legitimacy.

vi. Interstate succession and the administration of interstate estate.

b. It only applies where one or more of the parties are subject to it or

affected by it. Illustration: In Virginia Edith Wambui Otieno Vs. Joash Ochieng Ougo & Others, popularly known as S. M. Otieno Case – it was held

that Wambui having been married to S. M. Otieno, would therefore be

affected by the Luo customary law with regard to place of burial of her

husband – S. M. Otieno.

c. Customary law should not be inconsistent with any written law. In the case

of Karuri Vs. Njeri (1968) Njeri sued in Molo court for the custody of her

two children and she was awarded. On appeal by Karuri, Justice Simpson said

that it was inconsistent with Kikuyu custom to give the custody of children

to the mother unless bride price was refunded. Moreover, both are parties

are subject to the customary law. He further said, “I am not prepared to

hold that it is repugnant to justice and morality and know not of any written

law with which it is inconsistent”.

d. It must not be repugnant to justice and morality. This was justice and

morality of civilised people. In other words, the local custom should be

reasonable and not inconsistent with the principle of justice. . In the case of

Omwoyo Mairura Vs. Bosire (1958) the applicant married Pauline in 1935

according to the Roman Catholic rites but she deserted him almost

immediately. Subsequently, she met Bosire and she had 8 children with him.

The appellant claimed that his marriage to Pauline had not been dissolved

and consequently, Pauline was still legitimately married to him and that

according to Kisii customary law, the 8 children of Pauline also belonged to

him.

Dismissing the appeal, the Judge said, “This court has held in more than one

occasion that the principle of natural justice must be applied where

appropriate to customary law… It would be certainly contrary to natural

justice that the children of the respondent and Pauline should belong to the

former husband.



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e. The law is to be decided in all cases without undue regard to technicalities

of procedures and without undue delay.

The repugnancy clause in entirety represents the view of the colonialists who

considered that African customary law was a lesser law than their own. They saw

Africans as not capable of understanding legal technicalities and procedures and

as requiring a simple procedure which they could understand.

Weaknesses of African customary law as a source of Law a. Customary law is unwritten hence it can cause operational problems because

the person‟s responsible for interpreting it were judges‟ from Britain or

India who did not understand it. There was therefore need for expert

witnesses to prove its existence.

b. Customary law lacks uniformity as each ethnic community has its own

distinct customs and values.

c. Customary law is not absolute it is not complete in itself as it does change

from time to time and a judge has to ascertain custom in a place by calling

expert witnesses. Today, assessors are invited to assist the court in

murder trials although their decisions are not binding on the court unlike

the jury systems.

LAW REPORTS. Reporting of legal decisions has great influence on the authority of judicial

precedents. The decisions of the High Court of Kenya are recorded in the annual

volumes known as law reports. Law reports are referred by judges, advocates and

law students as authoritative source of legal principle. Below are the commonly

referred law reports in Kenya:

a). East Africa Court of Appeal Reports (E.A.C.A).

b). East Africa Law Reports (E.A).

C). Kenya Law Reports (K.L.R).

d). Africa Law Reports (A.L.R).

e). England Law Report (E.L.R)

ISLAMIC LAW. This is a limited source of law in Kenya, applied by Kadhis Courts, established

under Section 66 of the Constitution. It states „ There shall be a chief Kadhi and

such number of not being less than 3 of other Kadhis‟ as may be prescribed by or

under the Act of Parliament.

Under section 5 of Kadhis‟ courts Act, it is provided that the Kadhis‟ Court shall

have and exercise jurisdiction in questions of Muslim law.

Determination of questions relating to Muslim law relates to:

- Personal status.

- Marriage.

- Divorce.

- Inheritance in proceedings in which all the parties profess Muslim faith.



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Muslim law is based on the Holy book Quran and the teaching from prophet

Mohammed contained in his sayings known as Hadith. REFERENCES (i) The Law of Kenya by Tudor Jackson. (ii) Business Law by Marsh and Soulsby. (iii) Business Law by John J. Ogolla. (iv) General Principles and Commercial Law of Kenya by Ashiq Hussein. (v) Business Law by Keith Abbott, Norman Pendlebury and Kevin Wardman.

Sources of Kenya Laws-modified for Ccm on 26-04-2011(1)

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