Legal Systems

EGERTON UNIVERSITY

FACULTY OF LAW

NAME:MIRUGA CLEANSHINE

REG NO:L11/09972/22
LEGAL METHODS AND SYSTEMS CAT
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Common law can be in the form of judicial precedents set by judges when
deciding a case from things that the judges said in their ruling that may be relevant
to a later case .Once a precedent is set it is binding tom other lower courts.Common
law is rooted in the customs and words held by society as judges try to apply these
views to cases they hear.In Kenya,common law has risen to be disadvantageous.The
disadvantages are therefore discussed below.
Common law in many cases becomes undemocratic.Legislations such as acts of

parliament comes from democratically elected persons whereas common law
comes from judges.Judges are not elected by persons hence they cannot be held
accountable in the same way parliament can.Judges may make decisions that seem
to be at odds with the views of the electorate wh]ereas law made by the elected
parliament should at least reflect what what the mps constituents would like.Judges
do not run the risk of not being reelected,they feel more able to make
controversial decisions possibly ones that are influenced by their own opinions
rather than being entirely neutral.
Common law is reactive but not proactive that is unlike in parliament,courts do not
generally anticipate future situations .Courts make decisions only in the individual
cases which are brought before them.They develop legal principles only in light of
specific situations.Common law is not in line with current views .Judges and courts
may well know that a particular precedent is outdated and needs changing.but
there is nothing they can do about this.Even the highest court cannot change the
precedent that has already been before they hear a case that already concerns it.
Common law can be overridden by legislation enacted by parliament.Parliament can

pass a statute that can change a common law rule as lng as the statute is in line
with the constitution.Statute law is less predictable than common law but it is
important to parliament which is accountable for the voters to have the power to
change rules of common law which do not reflect the views of the public.
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Common law is less accessible to the public than statute law: Statutes are sets of
rules which are written down in a clear and structured way. Because common law is
the product of court decisions made in different cases over long time periods,
common law rules on specific issues can be harder for members of the public to
locate and understand. People often have to consult legal practitioners to
understand what the common law says about a specific topic.
Common Law also has inadequate remedies in that the only remedy available in
common law for a civil wrong is financial compensation. In addition, common law
has inadequate remedies because it is dependent on precedents, this just means
that the remedies available are limited to those that were used initially in the
precedents, this a new type of harm arises, there may not be an existing remedy
available to address arises, there law remedies are also slow and may not provide
adequate compensation for the harm suffered.
Common Law also encourages bribery. It does not directly encourage bribery but it
provides a legal framework for the exchange of money and other items of value in
exchange of a desired outcome. The framework allows parties to enter into
agreements that are legally binding and enforceable. This provides an incentive for
parties to engage in bribery, as they are assured that their agreement will be upheld
in court.
Common law is less accessible to the public than statute law: Statutes are sets of
rules which are written down in a clear and structured way. Because common law is
the product of court decisions made in different cases over long time periods,
common law rules on specific issues can be harder for members of the public to
locate and understand. People often have to consult legal practitioners to
understand what the common law says about a specific topic.
Parliament is democratic. Making new laws for the future is primarily the role of
Parliament, and not the role of the courts – because Parliament is accountable to the
voters. Judges are appointed, not elected, and they are chosen on the basis of their
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legal expertise, not on the basis of their political views. Judges are bound to follow
the Kenyan Constitution and the law. They are politically independent.
In conclusion, the essay above argues that common law has numerous
disadvantages if applied in developing countries such as Kenyaites disadvantages
render the common law system less suitable especially in third world Kenyaites
adoption of the common law legal system in a Kenya may be deemed a misguided
decisions as the system's inherent limitations may result in a host of negative
outcomes for the nations legal scope.
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Cleanshine Miruga

Legal Systems

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EGERTON UNIVERSITY

LEGAL METHODS AND SYSTEMS CAT

Common law in many cases becomes undemocratic.Legislations such as acts of

Common law can be overridden by legislation enacted by parliament.Parliament can

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