LEGAL SYSTEMS & METHODS

Session 1
INTRODUCTION TO LEGAL SYSTEMS AND LEGAL
METHODS
What is the Essence of Legal Systems & Legal Methods?
The legal system of any country can be described as the set of rules of substance and
procedure as well as the institutions relating to the governance of social behaviour and
resolution of disputes which arise in the process. It also necessarily includes the underlined
social values and attitudes which affect the operations of such values.

Legal methods on the other hand refer to the manner in which those who make, activate or
operate the law use the legal system to arrive at specific legal consequences. This necessarily
involves rules of interpretation and other legal tools used to arrive at the desired legal
consequences.

Legal systems therefore deal with “what” and “why” of law while legal methods deal with
“how” of law.

The Essence of the Legal System in the Society

Man is a social being. He is part and parcel of society which has its own structure and
organisation. Society is primarily based on order which order is achieved and maintained
through social rules. Man’s behaviour is closely controlled, either directly or indirectly
through moral standards, religious doctrines, social edicts and customs as well as legal rules.

In today’s complex society, legal rules are especially significant and it is difficult to find any
area of society which is completely free from legal control. There is therefore undeniable
and manifest relationship between law and society and the individual members of society.

To a law student society is a conglomeration of people, institutions and other social

phenomena in the midst of which law occupies a central place holding these social
arrangements together in an orderly fashion.
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Law is however only one part of the overall social structure as there are other social elements
and forces. In addition to law, there are various and diverse social phenomena all of which
form part of the entire social structure for example political institutions, economic and
commercial institutions, religious institutions etcetera. These other institutions or social
phenomena are however not completely free from legal control or influence.

Law plays an important role in the definition of all kinds of social relationships between
individuals and also between groups.

In the early days law as we know today did not exist. The early man was self-sufficient in
his wants. However as time went by need arose for specialisation in production of human
necessaries and this in turn gave rise to social relationships such as trade and others for
example emergency families and other units in the society. As a consequence there arose
conflicts of interest and these necessitated the development of a system of social control for
purposes of preserving the society itself.

As the social groups became more sophisticated and complex, there occurred increase in
occupational specialisation and division of labour and as a consequence legal rules became
even more sophisticated and complex. This is because just as society is dynamic so is the
law. The law must always change in tandem with societal change if it is to stay relevant.

What is Law?
Although scholars do differ in their analysis of law, there is general consensus that a legal
order must provide for authorisation and recognition of legitimate authority, provide means
of resolving disputes and also mechanisms for facilitating interpersonal relationships
including adaptation to change.

There is no definition of law which has achieved universal acceptability but different
approaches have been developed and adopted in an attempt to explain the meaning and
functions of law. What such attempts mostly achieve is to define the characteristics of the
law and also indicate the legal orientation of the person defining it.

Generally the orientations are either defined as positivism and naturalism.

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1.3.1 Legal Positivism
Legal positivism is a philosophy of law that emphasizes the conventional nature of law - that
it is socially constructed. According to legal positivism, law is synonymous with positive
norms, that is, norms made by the legislator or considered as common law or case law.

Austin defines law as a command of the sovereign that is backed by sanction. According to
Austin, positive law is a series of both explicit and implicit commands from a higher
authority. The law reflects the sovereign's wishes and is based on the sovereign's power.
Backed by sanctions and punishment,

According to one Salmond, law is a body of principles recognized and applied by the state
in the administration of justice. According to another scholar called Holland law is the rules
of external human action enforced by the sovereign political authority. Panton on the other
hand opines that law consists of a body of rules which are seen to operate as binding rules in
the community and by means of which sufficient compliance with the rules may be secured
to enable the set of rules to be seen as binding.

Hart defined law in terms of primary and secondary rules, which govern the state and the
conduct of people. The primary rules consist of duty imposing rules. These confer the duty
to do or not to do something. The secondary rules, on the other hand, are usually power
conferring. These are rules about how to make and change the primary rules (who has the
power to make the primary rules and how are they made). Hart believes that there are three
fundamental types of secondary rules: (i) rules of adjudication; (ii) rules of change; (iii) rules
of recognition.

1.3.2 Natural Law Theory

Naturalism or natural law theory is a philosophy of law that focuses on the laws of nature.
This school of jurisprudence represents the belief that there are inherent laws that are
common to all societies, whether or not they are written down or officially enacted. This
school of thought tells us that law is rational and reasonable.

According to natural law legal theory, the authority of legal standards necessarily derives, at
least in part, from considerations having to do with the moral merit of those standards. The

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natural law is comprised of those precepts of the eternal law that govern the behaviour of
beings possessing reason and free will.

There are a number of different kinds of natural law legal theories, differing from each other
with respect to the role that morality plays in determining the authority of legal norms.
Classical natural law theory such as the theory of Thomas Aquinas focuses on the overlap
between natural law moral and legal theories. In contrast, the procedural naturalism of Lon
L. Fuller argues that a social arrangement is a legal system insofar as that arrangement
satisfies “the inner morality of law.”

Aquinas distinguishes four kinds of law: (1) eternal law; (2) natural law; (3) human law; and
(4) divine law. Eternal law is comprised of those laws that govern the nature of an eternal
universe; as Susan Dimock (1999, 22) puts it, one can "think of eternal law as comprising all
those scientific (physical, chemical, biological, psychological, etc.) ‘Laws’ by which the
universe is ordered." Divine law is concerned with those standards that must be satisfied by
a human being to achieve eternal salvation. One cannot discover divine law by natural reason
alone; the precepts of divine law are disclosed only through divine revelation.

The first precept of the natural law, according to Aquinas, is the somewhat vacuous
imperative to do good and avoid evil. Here it is worth noting that Aquinas holds a natural
law theory of morality: what is good and evil, according to Aquinas, is derived from the
rational nature of human beings. Good and evil are thus both objective and universal.

In his 1958 debate with Hart and more fully in The Morality of Law (1964), Fuller sought to
steer a middle course between traditional natural law theory and legal positivism. Like most
legal academics of his day, Fuller rejected traditional religious forms of natural law theory,
which view human law as rooted in a rationally knowable and universally binding "higher
law" that derives from God. He also rejected the idea, found in some traditional natural law
theorists and famously endorsed by Martin Luther King, Jr. in his Letter from Birmingham
Jail, that an unjust law is not a law. On the other hand, Fuller also denied the core claim of
legal positivism that there is no necessary connection between law and morality.

According to Fuller, certain moral standards, which he calls "principles of legality," are built
into the very concept of law, so that nothing counts as genuine law that fails to meet these

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standards. Fuller propounds that all purported legal rules must meet eight minimal conditions
in order to count as genuine laws. The rules must be

(1) Sufficiently general,

(2) Publicly promulgated,
(3) Prospective (i.e., applicable only to future behaviour, not past),
(4) At least minimally clear and intelligible,
(5) Free of contradictions,
(6) Relatively constant, so that they don't continuously change from day to day,
(7) Possible to obey, and
(8) Administered in a way that does not wildly diverge from their obvious or apparent
meaning.

These are Fuller's "principles of legality." Together, he argues, they guarantee that all law
will embody certain moral standards of respect, fairness, and predictability that constitute
important aspects of the rule of law.

Functions of Law in Society

Structuring and controlling public power - Constitution, admin law etc. do these functions

(i) Facilitating and effectuating private relationships: family law etc.;

(ii) Resolving social conflicts;
(iii) Maintains social control;
(iv) Protects public order;
(v) To resolve disputes;
(vi) Protects certainty of systems;
(vii) Facilitates orderly change;
(viii) Brings out justice in society;
(ix) Protects rights of individuals;
(x) Outlines what the government can do and what it cannot do.

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Classification of Law
1.5.1 Private and Public law
Public law consists of those aspects of law concerned with the regulation of the relationship
between the state and persons/citizens. They include constitutional law and Administrative
law.

Private law on the other hand is primarily concerned with the regulation of relationships
between persons as in people inter se for example law of contract etcetera

1.5.2 Criminal versus Civil Law

Criminal law is concerned with the definition, prevention, detection and punishment of crime
for example criminal law as codified in the penal code. With the exception of where the court
allows private prosecution, a criminal case is initiated, not by the injured party, but the state.
Thus, criminal matter will be titled Republic v. X (The Accused).

In criminal litigation, the burden of proof is always on the state. The state must prove that
the defendant is guilty. The defendant is assumed to be innocent and needs to prove nothing.
If the There are some exceptions however. (Thus, if defendant wishes to claim that he/she is
insane, and therefore not guilty, he/she bears the burden of proving his/her insanity. Other
exceptions include defendants who claim self-defence or duress). In criminal litigation, the
state must also prove that the defendant satisfied each element of the statutory definition of
the crime, and the defendant's participation, “beyond a reasonable doubt.”

Civil law, on the other hand, is primarily concerned with the regulation of relationship
between persons. The matter is initiated by the individual who claims injury/violation of his
right. Civil matters are referred to as X (plaintiff/claimant v. Y (Defendant/Respondent).

In civil litigation, the burden of proof is initially on the plaintiff. However, there are a number
of technical situations in which the burden shifts to the defendant. For example, when the
plaintiff has made a prima facie case, the burden shifts to the defendant to refute or rebut the
plaintiff's evidence.

In civil litigation, the plaintiff wins if the preponderance of the evidence favours the plaintiff.
For example, if the judge believes that there is more than a 50% probability that the defendant

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was negligent in causing the plaintiff's injury, the plaintiff wins. This is a very low standard,
compared to criminal law.

1.5.3 Substantive versus Procedural Law

Substantive law is concerned with the definition of legal rights, obligations and remedies for
example land law. Procedural or adjectival law, on the other hand is concerned with the
procedure or steps to be followed in the enforcement of rights and obligations defined by
substantive law. For example, law of evidence and law of procedure. It comprises the set of
rules that govern the proceedings of the court in criminal lawsuits as well as civil and
administrative proceedings. The court needs to conform to the standards setup by procedural
law, while during the proceedings. These rules ensure fair practice and consistency in the
"due process".

Whereas substantive law deals with the legal relationship between people or the people and
the state by defining the rights and duties of the people, procedural law lays down the rules
with the help of which they are enforced.

1.5.4 Statutory and Non-Statutory Laws

There are two basic forms of the law: statutory law and non-statutory law (or common law).
Statutory law is the formal written law of a country, written by that country’s legislative
authority, and is ratified by the highest executive in the government, before being published.
Typically, statutes command, prohibit, or declare policy. Statutes are sometimes referred to
as legislation or "black letter” law.

In non-statutory forms of the law, or common law legal systems, judges have the authority
and duty to decide what the law is when there is no other authoritative statement of the law.
Non-statutory law forms a major part of the legal systems of those countries of the world that
have at one time been territories or colonies of the British Empire (with the exception of
Malta, Scotland and Quebec). Common law is notable for its inclusion of extensive non-
statutory law that reflects precedent derived from centuries of judgments by working jurists.

1.5.5 Municipal and International Law

Municipal law comprises of domestic laws applicable within a given state. International law
regulates legal relations at international level.

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a) Monism and Dualism

Under the Vienna Convention on the Law of Treaties, states are committed towards
respecting treaties that they make and to determine their application by their own legislative,
executive and judicial institutions (art 28 of the Vienna Convention).

Yet the Convention does not deal with the way the States have to integrate international law
into their internal/municipal systems. This matter is left to be determined upon by the States
themselves. This has necessarily given States the leverage to determine how to go about it.

In regards to application of international law in national systems, states are considered to

either be monist or dualists. In Monist States, international and national legal systems are
unified into one body of law applied by the national courts. Although there is a clear division
between internal and international laws, there is no need for translating the international law
into a national law in these systems.

In dualist states, there is a difference between internal and international law. Unlike monism,
there is a need for the translation of international law into national law. Unless the translation
takes place, the international law is not accepted. Moreover, an international treaty is not
accepted in dualist state if it is not adapted as a national law.

In Mitu-Bell Welfare Society v. Kenya Airports Authority, SC Petition 3 of 2018 [2021]

eKLR, alluded that Kenya is still a dualist state even though international law forms part of
the law to be applied by Kenyan Courts stating at para 132 that:

We must conclude by stating that Article 2(5) and (6) of the Constitution has
nothing or little of significance to do with the monist-dualist categorization.
Most importantly, the expression “shall form part of the law of Kenya” as used
in the Article does not transform Kenya from a dualist to a monist state as
understood in international discourse. As already demonstrated, the phrase was
in fact first embraced by the pioneer dualist states, i.e. the United Kingdom and
the United States. At any rate, given the developments in contemporary treaty
making, the argument about whether a state is monist or dualist, is increasingly
becoming sterile, given the fact that, a large number of modern-day treaties,
conventions, and protocols are Non-Self Executing, which means that, they
cannot be directly applicable in the legal systems of states parities, without
further legislative and administrative action.
b) Distinction between International Law and Municipal Law

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There are substantive differences between international law and municipal (or domestic) law.
Understanding the uniqueness of international law in relation to municipal law helps one to
better understand the nature and process of international law. These may be:

i) Municipal law regulates relations within a country (intra-state), while

international law regulates relations between countries (inter-state);
ii) Regarding the processes used to make law, municipal law are made by national
organs such as parliament or decisions of courts. In case of international law,
treaty-making is the principal role although customary international law may be
deemed from states’ practice.
iii) In relation to the obligations on parties, international law (save for international
criminal law) is about state obligation while municipal law largely deal with
individuals’ rights and obligations under state/national law.
iv) International law is generally enforced through international mechanisms while
municipal laws are generally enforced through national mechanisms like local
courts and tribunals. The principal feature of municipal law is the existence of a
legislature and a court system that can settle legal disputes and enforce the law.
At the international level, however, there is no legislature in existence and it is by
way of agreements between countries (treaties) that international law is made.
v) The lack of an enforcement mechanism akin to a police force at the international
level impedes coercive enforcement. The court system at the international level
is one that relies on the acquiescence of the countries to both its jurisdiction and
to carrying out the decisions of the court. The court system is well-established at
the international level and respected but it lacks the ability to compel a country to
come before it, unlike courts in a municipal system which can require a
government, company or individual to appear before it.
vi) The role of politics in international law influences the character of international
law profoundly and is more likely to reflect the political interests of the countries
than might be the case at the municipal level. International law is made by way
of political agreements (treaties) and will be supported or ignored according to
the political interests of a country.

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vii) Municipal law is hierarchical or vertical - the legislature is in a position of
supremacy and enacts binding legislation. International law is horizontal - all
states are sovereign and equal.

The distinction between the branches have nonetheless narrowed. Currently, the sphere of
international law has expanded to regulation of matters that were once thought to be the
preserve of municipal law. For example, how a state treats its citizens has become a subject
of international law through the operation of international human rights law. International
criminal law also deal with individual’s responsibility rather than the states’.

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Session 2
THE MAJOR LEGAL SYSTEMS OF THE WORLD
Introduction
Most nations today follow one of two major legal traditions: common law or civil law. The
common law tradition emerged in England during the middle Ages and was applied within
British colonies across continents. The civil law tradition developed in continental Europe at
the same time and was applied in the colonies of European imperial powers such as Spain
and Portugal. Civil law was also adopted in the nineteenth and twentieth centuries by
countries formerly possessing distinctive legal traditions, such as Russia and Japan, which
sought to reform their legal systems in order to gain economic and political power
comparable to that of Western European nation-states.

The Common Law and Civil Law Legal Systems

2.2.1 Common Law System
Common law traces its roots to the medieval idea that the law as handed down from the king's
courts represented the common custom of the people. It evolved chiefly from three English
Crown courts (common law courts) of the twelfth and thirteenth centuries: the Exchequer,
the King's Bench, and the Common Pleas.

Early common-law procedure was governed by a complex system of pleading, under which
only the offenses specified in authorized writs could be litigated. Complainants were required
to satisfy all the specifications of a writ before they were allowed access to a common-law
court. This system was replaced in England in mid-1800s.

The court of equity, which were instituted to provide relief to litigants in cases where
common-law relief was unavailable, later merged with common-law courts to constitute the
English legal system. This consolidation of jurisdiction over most legal disputes into several
courts was the framework for the modern Anglo-American judicial system.

Notable of the common-law system, courts base their decisions on prior judicial
pronouncements rather than on legislative enactments. Where a statute governs the dispute,
judicial interpretation of that statute determines how the law applies. Common-law judges

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rely on their predecessors' decisions of actual controversies, rather than on abstract codes or
texts, to guide them in applying the law. Common-law judges find the grounds for their
decisions in law reports, which contain decisions of past controversies. Under the doctrine
of Stare Decisis, common-law judges are obliged to adhere to previously decided cases, or
precedents, where the facts are substantially the same. A court's decision is binding authority
for similar cases decided by the same court or by lower courts within the same jurisdiction.
The decision is not binding on courts of higher rank within that jurisdiction or in other
jurisdictions, but it may be considered as persuasive authority.

Because common-law decisions deal with everyday situations as they occur, social changes,
inventions, and discoveries make it necessary for judges sometimes to look outside reported
decisions for guidance in a case of first impression (previously undetermined legal issue).
The common-law system allows judges to look to other jurisdictions or to draw upon past or
present judicial experience for analogies to help in making a decision. This flexibility allows
common law to deal with changes that lead to unanticipated controversies. At the same time,
stare decisis provides certainty, uniformity, and predictability and makes for a stable legal
environment.

Under a common-law system, disputes are settled through an adversarial exchange of

arguments and evidence. Both parties present their cases before a neutral fact finder, either a
judge or a jury. The judge or jury evaluates the evidence, applies the appropriate law to the
facts, and renders a judgment in favour of one of the parties. Following the decision, either
party may appeal the decision to a higher court. Appellate courts in a common-law system
may review only findings of law, not determinations of fact.

Thus, common law systems place great weight on court decisions, which are considered
‘law’ with the same force of law as statutes. Common law courts have had the authority to
make law where no legislative statute exists, and statutes mean what courts interpret them to
mean.

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2.2.2 Civil Law Systems
Also referred to as the Roman-Germanic Law or Continental European System, this is a legal
system inspired by Roman and Germanic law and whose the primary feature is that laws are
written into a collection, codified, and not (as in common law) interpreted by judges.

The principle of civil law is to provide all citizens with an accessible and written collection
of the laws which apply to them and which judges must follow. It is the most widespread
system of law in the world, in force in various forms in about 150 countries.

Conceptually, it is the group of legal ideas and systems ultimately derived from the Code of
Justinian, but heavily overlaid by Germanic, ecclesiastical, feudal, and local practices, 1 as
well as doctrinal strains such as natural law, codification, and legislative positivism.

Materially, civil law proceeds from abstractions and formulated general principles and
distinguishes substantive rules from procedural rules. It holds legislation as the primary
source of law, and the court system is usually inquisitorial, unbound by precedent, and
composed of specially trained judicial officers with a limited authority to interpret law.

Juries separate from the judges are not used, although in some cases, volunteer lay judges
participate along with legally trained career judges.

2.2.3 Comparison between the Common Law System and the Civil Law
Legal System
The difference between civil law and common law lies not just in the mere fact of
codification, but in the methodological approach to codes and statutes. In civil law countries,
legislation is seen as the primary source of law. By default, courts thus base their judgments
on the provisions of codes and statutes, from which solutions in particular cases are to be
derived. Courts thus have to reason extensively on the basis of general rules and principles
of the code, often drawing analogies from statutory provisions to fill lacunae and to achieve
coherence. By contrast, in the common law system, cases are the primary source of law,
while statutes are only seen as incursions into the common law and thus interpreted narrowly.

1
Charles Arnold Baker, The Companion to British History, s. v. "Civilian" (London: Routledge, 2001), 308.

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In civil law systems, statutes set the general principles of the law expressly by stating them;
the courts then make their own interpretations of those general principles afresh in each case
to arrive at conclusions about how those general principles translate into details.

In common law systems, the approach is the opposite: the legislation sets the details, from
which the general principles emerge, much like a computer programme. The idea is that those
who are making the statutes, rather than the courts, should be the ones who have the power
to decide how the details work.

The civil law can thus be described as a top-down approach to principles, whereas the
common law can be described as a bottom up approach. Both systems ‘value’ principles
equally, but arrive at them, and deal with the interface between principle and detail, in very
different ways.

Thus, common law and civil law systems may be distinguished in light of some key features.
System Features. Of course, it must be noted that the systems may not exhibit all of the
features in question, but the tendency is that most of the features will be seen to operate for
a particular legal system to fall under that category.

The areas of distinction include:

1) Common law systems trace their history to England, while civil law systems trace
their history to Roman law and the Napoleonic Code.
2) Regarding continuity of the legal system, whereas common law is evolutionary, civil
law systems are revolutionary. Civil laws are altered immediately the legislature
enacts a law whereas common law courts will continue to apply precedents making
the changes slow and progressive.
3) The major sources of law in the common law system are customs and practice while
in civil law legislative statutes stand as the primary source of law.
4) With regard to precedents, there is a very strong reliance to them in the common law
system. This is not the case with civil law system which does not rely on previous
decisions, but rather on codes.

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5) The systems may also be distinguished on the basis of judicial role in law-making.
Whereas in common law it is active and creative, in the civil law system the judiciary
only plays a passive and technical role.
6) The role of legal scholarship in the common law system is usually secondary and
peripheral, while in a civil law system the use of legal scholarship is extensive and
influential.
7) Judicial review of statutes and of executive actions is largely incorporated in common
law system which is not the case in the civil law world.
8) At common law, the major decision-making stage is the trial stage, while at civil law,
the critical stage in the process is at the investigation and examination period.
9) The trial format in common law is accusatorial and confrontational, while in civil
law, it is inquisitorial and collaborative.
10) The use of argument and debate during trial, extensive and fundamental in common
law systems. In civil law, the arguments are quite modest and restricted.
11) The style of legal reasoning in common law is inductive while in civil law, it is
usually deductive.
12) Trial emphasis in common law is usually on procedural correctness, whereas the civil
law system normally emphasises on factual certainty.
13) Evidentiary rules in common law is formal and restrictive. The exclusionary rule is
usually employed in common law. In civil law, usually all relevant evidence
considered.
14) With respect to the role of lawyers during trial, it is primary in common law system,
while in civil law system the lawyers only play a secondary role.
15) The common law lawyer’s function is to debate and oppose while in civil law, the
lawyer’s function is to advise and inform.
16) The judge’s role during trial is that of a referee/umpire in common law while in civil
law, he/she is a director/examiner.
17) The common law judges are usually political appointees from practicing lawyers and
other judicial ranks. Their status is of political VIPs. In civil law, judges are appointed

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by merit advancement from judicial specialists. Their status is of mid-level civil
servants.
18) Some common law jurisdiction allow citizen’s participation in trial by employing
juries (grand & petit). In civil law, decisions are usually by members of judicial
panels.
19) While appeals in common law normally focus on procedural propriety, in civil law,
appeals focus both on procedural and substantive propriety.
20) The structure of the common law courts is usually unified while civil law systems
have diffused court structures (with multiple specialized courts).

Other Major Legal Systems

2.3.1 Socialist Legal Systems
Socialist system mostly denotes a general type of legal system used in the communist and
former communist states. It is based on the civil law system, with major modifications and
additions from Marxist-Leninist ideology.

There is controversy as to whether socialist law ever constituted a separate legal system or
not,2 but prior to the end of the Cold War, socialist law ranked among the major legal systems
of the world by virtue of the predominant ideology in the communist states.

Socialist law is similar to the civil law system but with the following characterises:

(i) A greatly increased public law sector and decreased private law sector.3

(ii) At the early stages of existence of each socialist state, the aim was the partial or total
expulsion of the former ruling classes from the public life (however, in all socialist
states this policy gradually changed into the policy of ‘one socialist nation without
classes’);

(iii) The system directly discouraged diversity of political views;

2
Quigley, J. "Socialist Law and the Civil Law Tradition". The American Journal of Comparative Law
37(1989) (4): 781–808.
3
H. Patrick Glenn, Legal traditions of the world: sustainable diversity in law (Oxford University Press, 2007)
331

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(iv) The ruling Communist party members/leaders are usually subject to prosecution
through party committees in first place;

(v) Abolition of private property is usually considered as a primary goal of socialism, if

not its defining characteristic. Thus, near total collectivization and nationalization of
property is encouraged;

(vi) There is low respect for individuals’ privacy and extensive control over private life by
the ruling party;

(vii) There is low respect for intellectual property. Such knowledge and culture is
considered a right for human kind and not a privilege as in the free market economies;

(viii) There are extensive social warrants of the state (the rights to a job, free education, free
healthcare, retirement at 60 for men and 55 for women, maternity leave, free disability
benefits and sick leave compensation, and subsidies to multi-children families) in
return for a high degree of social mobilization.

(ix) The judicial process lacks adversary character; public prosecution is considered as
‘provider of justice.’

(x) While civil law systems have traditionally put great pains in defining the notion of
private property, how it may be acquired, transferred, or lost, socialist law systems
provide for most property to be owned by the state or by agricultural co-operatives,
and having special courts and laws for state enterprises.

(xi) Although the command economy approach of the communist states meant that property
could not be owned, the Soviet Union always had a Civil Code, courts that interpreted
this Civil Code, and a civil law approach to legal reasoning (thus, both legal process
and legal reasoning were largely analogous to the French or German civil code system).

Legal systems in all socialist states preserved formal criteria of the Romano-Germanic civil
law; for this reason, law theorists in post-socialist states usually consider the Socialist law as
a particular case of the Romano-Germanic civil law. Cases of development of common law
into Socialist law are unknown because of incompatibility of basic principles of these two

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systems (common law presumes influential rule-making role of courts while courts in
socialist states play a dependent role)

2.3.2 Religious Legal Systems

Religious law refers to the notion of a religious system or document being used as a legal
source. The main kinds of religious law are Sharia in Islam, Halakha in Judaism, and canon
law in some Christian groups.

The methodologies used in religious laws greatly vary. The use of Jewish Halakha for public
law, for example, has a static and unalterable quality, precluding amendment through
legislative acts of government or development through judicial precedent. On the other hand,
it may be observed that Christian canon law is more similar to civil law in its use of civil
codes while Islamic Sharia law (and Fiqh jurisprudence) is usually based on legal precedent
and reasoning by analogy (Qiyas), and is thus considered similar to common law. During the
Islamic Golden Age, classical Islamic law may have had an influence on the development of
common law and several civil law institutions.

In some cases the religious edicts are intended purely as individual moral guidance. Canon
law, for example, is not a divine law, properly speaking, because it is not found in revelation.
Instead, it is seen as human law inspired by the word of God and applying the demands of
that revelation to the actual situation of the church. Canon law regulates the internal ordering
of the Roman Catholic Church, the Eastern Orthodox Church and the Anglican Communion.
Canon law is amended and adapted by the legislative authority of the church, such as councils
of bishops, single bishops for their respective sees, the Pope for the entire Catholic Church,
and the British Parliament for the Church of England.

In other cases religious laws are intended and may be used as the basis for a country's legal
system. The latter was particularly common during the middle Ages and today in countries
adopting the Islamic legal system where Sharia (Islamic law) and Fiqh (Islamic
jurisprudence) is the most widely used religious law and is one of the three most common
legal systems in the world alongside common law and civil law. It is the most protected
divine law, because, the majority of the rulings of Sharia law are based on the Qur'an and
Sunnah, while a small fraction of its rulings are based on the Ulema (jurists) who used the

18
methods of Ijma (consensus), Qiyas (analogical deduction), Ijtihad (research) and Urf
(common practice) to derive Fatwā (legal opinions).

In Islamic systems, Ulema may be required to qualify for an Ijazah (legal doctorate) at a
Madrasah (school) before they are able to issue Fatwā.

Sharia law governs a number of Islamic countries, including Saudi Arabia, Pakistan and Iran,
though most countries use Sharia law only as a supplement to national law. It can relate to
all aspects of civil law, including property rights, contracts or public law.

Plural and Hybrid Systems

2.4.1 Plural Systems
Legal pluralism is the existence of multiple legal systems within one geographic area. Plural
legal systems are particularly prevalent in former colonies, where the law of a former colonial
authority may exist alongside more traditional legal systems. When these systems developed,
the idea was that certain issues (e.g., criminal sanctions) would be covered by colonial law,
while other issues (e.g., family and marriage) would be covered by traditional law. Over
time, these distinctions tended to break down and individuals would choose to bring their
legal claims under the system that they thought would offer them the best advantage.

Legal pluralism also occurs when different laws govern different groups within a country.
For example, in India, Kenya and Tanzania, there are special Islamic courts that address
concerns in Muslim communities by following Islamic law principles. Secular courts deal
with the issues of other communities.

It is important to note that modern Western legal systems can also be pluralistic. It is, thus,
misleading to discuss legal pluralism only in relation to non-Western legal systems.

Legal pluralism also exists to an extent in societies where the legal systems of the indigenous
population have been given some recognition. In Australia, for example, in Mabo v.
Queensland (No 2), the decision gave recognition to native title and thus elements of
traditional Aboriginal law.4 Elements of traditional Aboriginal criminal law have also been

4
(1992) 175 CLR 1.

19
recognised, especially in sentencing. This has, in effect, set up two parallel sentencing
systems.

2.4.2 Hybrid Systems

Hybrid systems arise where there is a mixture of notions form different legal systems
coexisting with each other at the same time. The most prominent example of a hybrid legal
system is the Indian legal system. India follows a mixture of civil, common law and
customary or religious law. Separate personal law codes apply to Muslims, Christians, and
Hindus. Decisions by the Supreme Court of India and High Courts are binding on the lower
courts. Further, most of the laws are statutory and it also has a constitution which signifies
the civil nature of law in India.

Hybrid legal systems are also found in South Africa and Greece where the systems are based
on a mixture of Civil law and common law. US law may also be viewed as hybrid legal
systems to the extent that there is a mixture of civil law, common and religious laws in the
system.

Trial Procedures in the Main Legal Systems

It has already been noted that the main legal systems adopted the world over are the Common
Law and Civil Law legal systems. One of the key distinctions between these systems is that
whereas the common law is adversarial while the civil law is inquisitorial. Hence, it is
important to look at the distinctions that exist between these two major systems.

2.5.1 Inquisitorial System

Inquisitorial trial is a method of legal practice in which the judge endeavours to discover
facts while simultaneously representing the interests of the state in a trial. The presiding
judge in the trial is not a passive recipient of information. Rather, he is primarily responsible
for supervising the gathering of the evidence necessary to resolve the case. He actively steers
the search for evidence and questions the witnesses, including the respondent or defendant.
Lawyers play a more passive role, suggesting routes of inquiry for the presiding judge and
following the judge's questioning with questioning of their own. Lawyers’ questioning is
often brief because the judge tries to ask all relevant questions.

20
The inquisitorial system was first developed by the Catholic Church during the medieval
period. The ecclesiastical courts in thirteenth-century England adopted the method of
adjudication by requiring witnesses and defendants to take an inquisitorial oath administered
by the judge, who then questioned the witnesses. In an inquisitorial oath, the witness swore
to truthfully answer all questions asked of him or her. T

he system flourished in England into the sixteenth century, when it became infamous for its
use in the Court of the Star Chamber, a court reserved for complex, contested cases. Under
the reign of King Henry VIII, the power of the Star Chamber was expanded, and the court
used torture to compel the taking of the inquisitorial oath. The Star Chamber was eventually
eliminated as repugnant to basic liberty, and England gradually moved toward an adversarial
system.

After the French Revolution, a more refined version of the inquisitorial system developed in
France and Germany. From there it spread to the rest of continental Europe and many
African, South American, and Asian countries. The inquisitorial system is now more widely
used in the world.

The court procedures in an inquisitorial system vary from country to country. Most
inquisitorial systems provide a full review of a case by an appeals court. In civil trials under
either system of justice, the defendant, or respondent, may be required to testify. A trial in
an inquisitorial system may last for months as the presiding judge gathers evidence in a series
of hearings.

2.5.2 The Adversarial System

In the adversary trials, two or more opposing parties gather evidence and present the
evidence, and their arguments, to a judge or jury. The judge or jury knows nothing of the
litigation until the parties present their cases to the decision maker. The defendant in a
criminal trial is not required to testify before the decision is given in the adversarial system.

2.5.3 Distinction between Inquisitorial and Adversarial Systems

The goal of both the adversarial system and the inquisitorial system is to find the truth. But
the adversarial system seeks the truth by pitting the parties against each other in the hope that

21
competition will reveal it, whereas the inquisitorial system seeks the truth by questioning
those most familiar with the events in dispute.

The adversarial system places a premium on the individual rights of the accused, whereas
the inquisitorial system places the rights of the accused secondary to the search for truth.

The most striking differences between the two systems can be found in criminal trials. In
most inquisitorial systems, a criminal defendant does not have to answer questions about the
crime itself but may be required to answer all other questions at trial. Many of these other
questions concern the defendant's history and would be considered irrelevant and
inadmissible in an adversarial system. A criminal defendant in an inquisitorial system is the
first to testify. The defendant is allowed to see the government's case before testifying, and
is usually eager to give her or his side of the story. In an adversarial system, the defendant is
not required to testify and is not entitled to a complete examination of the government's case.

A criminal defendant is not presumed guilty in an inquisitorial system. Nevertheless, since a

case would not be brought against a defendant unless there is evidence indicating guilt, the
system does not require the Presumption of Innocence that is fundamental to the adversarial
system.

The decision in an inquisitorial criminal trial is made by the collective vote of a certain
number of professional judges and a small group of lay assessors (persons selected at random
from the population). Neither the prosecution nor the defendant has an opportunity to
question the lay assessors for bias. Generally, the judges vote after the lay assessors’ vote,
so that they do not influence the conclusions of the lay assessors. A two-thirds majority is
usually required to convict a criminal defendant, whereas a unanimous verdict is the norm in
an adversarial system.

The inquisitorial system does not protect criminal defendants as much as the adversarial
system. Prosecutors in the inquisitorial system do not have a personal incentive to win
convictions for political gain, which can motivate prosecutors in an adversarial system.

Most scholars agree that the two systems generally reach the same results by different means.

22
Some countries, such as Italy, use a blend of adversarial and inquisitorial elements in their
court system.

23
Session 3
MATERIAL SOURCES OF LAW IN KENYA
Introduction
The Judicature Act and the Constitution supply a good basis for the determination of where
laws in Kenya sourced. The Judicature Act, Cap 8 is guides the courts in Kenya on the law
to apply. It provides that in section 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.
(2) 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.
This section creates a hierarchy of law in the following order:

(i) The Constitution;

(ii) Kenyan Legislations and some English Acts;
(iii) Common law, the doctrines of equity and the statutes of general application in force
in England on the 12th August, 1897; and
(iv) African Customary law

This section may be interpreted to closely relate to the new Constitution which may be seen
to also supply sources from which the law of Kenya would be tapped from the courts. The
Constitution identifies the sources of law to include:

24
(i) The Constitution (in article 2);
(ii) Legislation (article 94(5));
(iii) Customary law (art 2(4);
(iv) General rules of international law (art 2(5); and
(v) Treaties or conventions ratified by Kenya (art 2(6).
But the problem is that the provisions do not tally. Thus, the judicature Act may need to be
amended to accord with the new constitutional structure of laws e.g. as regards international
law.

The Constitution
The highest source of law in Kenya the Constitution. Under article 2 (comparable to section
3 of the repealed Constitution), it is provided that the Constitution is the supreme law of the
Republic and binds all persons and all State organs at both levels of government.

The Constitution provides that no person may claim or exercise State authority except as
authorised under the Constitution.

Thus in old English law, a writ of quo warranto (by what authority in Latin) would be issued
to challenge a wrongful exercise of authority. This writ is still in Use in USA and in India.
In the United States, the Supreme Court described it in Johnson v. Manhattan Railway Co.
(1933) p. 502 as a writ “addressed to preventing a continued exercise of authority unlawfully
asserted,” brought by the state or federal government against any person alleged to “exercise
an office or authority without lawful right”.

In India for example, in Anna Mathew v. N. Kannadasan (2008) a writ was filed under Article
226 of the Constitution of India for the issuance of Writ of Quo Warranto against the 1st
respondent requiring him to show his authority to hold the office of President of the Tamil
Nadu State Consumer Disputes Redressal Commission and to consequently declare his
appointment by the 2nd respondent illegal and unconstitutional.

Under article 2 of the 2010 Constitution, the validity or legality of the Constitution is not
subject to challenge by or before any court or other State organ. However, in a curious ruling,
the High Court in the case of Jesse Kamau & 25 others v Attorney General [2010] eKLR
held under the repealed Constitution of Kenya that:

25
Financial maintenance and support of the kadhi courts from public coffers amounts to
segregation, is sectarian, discriminatory and unjust against the applicants and others... it
amounts to separate development of one religion and religious practice contrary to the
principle of separation of state and religion.5
This case would never stand under the new Constitution.

It has further been provided in article 2 that any law, including customary law that is
inconsistent with this Constitution is void to the extent of the inconsistency, and any act or
omission in contravention of the Constitution is invalid. Thus, in Godfrey Ngotho Mutiso v.
Republic [2010] eKLR, section 204 of the Penal Code was declared to be unconstitutional
by the Court of Appeal. The Court said:

We note that while the Constitution itself recognizes the death penalty as being lawful,
it does not say anywhere that when a conviction for murder is recorded, only the death
sentence shall be imposed. We declare Section 204 shall, to the extent it provides that
the death penalty is the only sentence in respect of the crime of murder is inconsistent
with the letter and spirit of the Constitution, which as we have said, makes no such
mandatory provision.
In the Muruatetu Case at the Supreme Court of Kenya,6 the petitioners and others were
arraigned before the High Court for the offence of murder. Upon their conviction, they were
sentenced to death as decreed by section 204 of the Penal Code. Their appeal to the Court of
Appeal against both that conviction and sentence was dismissed. Upon further appeal, the
Supreme Court found that section 204 of the Penal Code that provided that “any person
convicted of murder shall be sentenced to death”, was unconstitutional. The Supreme Court
held that the mandatory nature of the death sentence as provided for under section 204 of the
Penal Code deprived the Court of the use of judicial discretion in a matter of life and death.
The Court stated that such law could only be regarded as harsh, unjust and unfair. The
mandatory nature of the provision deprived the Courts of their legitimate jurisdiction to
exercise discretion not to impose the death sentence in appropriate cases. The Court went on
to order that the judgment urgently be placed before the Speakers of the National Assembly
and the

5
Jesse Kamau & 25 Others v. Attorney General, High Court Nairobi Miscellaneous Civil Application 890 of
2004 [2010] eKLR
6
Francis Karioko Muruatetu & another v Republic [2017] eKLR

26
In Hamdardda Wakhama vs. Union of India (AIR 1960 at 554) where the Court stated:

…when an enactment is impugned on the ground that it is ultra vires and

unconstitutional what has to be ascertained is the true character of the legislation and for
that purpose regard must be had to the enactment as a whole to its objects, purpose and
true intention and the scope and effect of its provisions or what they are directed against
and what they aim at.
Written Laws
3.3.1 Acts of the Kenyan Parliament
Under article 94(1), the legislative authority of the Republic is derived from the people and,
at the national level, is vested in and exercised by Parliament.

Moreover, no person or body, other than Parliament, has the power to make law unless the
Constitution authorises it or under authority given under legislation (94(5)).

3.3.2 Delegated Legislation

An Act of Parliament, or legislation of a county, may confer on any State organ, State officer
or person the authority to make provision having the force of law in Kenya.

For this to be so, the Act has to expressly specify the purpose and objectives for which that
authority is conferred, the limits of the authority, the nature and scope of the law that may be
made, and the principles and standards applicable to the law made under the authority.

3.3.3 Acts of Foreign Legislative Bodies

a) English Legislation

Under Part I of the Schedule to the Judicature Act Cap 8 Laws of Kenya, the following British
Statutes are applicable in Kenya;

 Admiralty Offences (Colonial) Act of 1849;

 The Evidence Act (Sections 7 and 11 thereof)
 Foreign Tribunals Evidence Act of 1856
 Evidence by Commission Act of 1859
 British Law Ascertainment Act 1859
 Admiralty Offences (Colonial) Act of 1860
 Foreign Law Ascertainment Act of 1861

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 Conveyancing (Scotland) Act of 1874 specifically S. 51 thereof
 Evidence by commission Act of 1885.

Under Part II of Schedule to the Judicature Act the President shall replace the Governor and
a Magistrate holding a subordinate Court of the 1st Class shall replace a Magistrate of the
Justice of Peace.

The Judicature Act also identifies Statutes of General Application as at 12th August 1897 as
sources of law in Kenya

This is contained in Section 3 of the Interpretation and General Provisions Act Cap 2 of the
Laws of Kenya. The expression “Statutes of General Application” is not specifically defined
in the Judicature Act, Cap 2 or in any other piece of legislation. However, Kenya Courts
have over the years accepted several UK Statutes as statutes of general application and
applied them in determining certain cases.

Three basic criteria must be satisfied in order for a UK Act to be received and applied as a
statute of general application:

(i) It must have been enforced in the UK on the 12th day of August 1897;
(ii) It must have been applicable generally in the UK as at that date i.e. it must not have
been a statute applicable only to a section of the UK or only to a section of the
population;
(iii) The Statute must be suitable for the circumstances of Kenya and the inhabitants.

One Professor Allot in an article entitled “New Essays in African Law” has outlined a number
of factors to be considered before UK Legislation can qualify as a statute of general
application. These are:

(i) The statute must be a government Act of the English legislature as distinguished
from a local or private Act;

(ii) The statute must have been in force in England at the specified reception date;

(iii) The statute must be suitable for general application outside England;

(iv) The Courts of the particular country concerned must rule on it;

28
(v) When there is a local enactment which is inconsistent with the English statute
then the local legislation prevails.

Some of the statutes of general application applied in Kenya include:

 Married Women’s Property Act of 1882 (see case of I v I: 1971 case reported in EA
law reports page 278);

 Infants Relief Act of 1874.

b) Indian Legislation

There are some pieces of Indian legislation which were imported into Kenya by the British
Colonial Authorities, for instance, the Indian Transfer of Properties Act (ITPA) was for a
long time used to provide substantive law under various procedural land legislation until it
was repealed by the comprehensive land legislation of 2012.

Common Law
Common-law courts base their decisions on prior judicial pronouncements rather than on
legislative enactments. Common-law judges rely on their predecessors' decisions of actual
controversies, rather than on abstract codes or texts, to guide them in applying the law.

Under the doctrine of Stare Decisis, common-law judges are obliged to adhere to previously
decided cases, or precedents, where the facts are substantially the same.

A court's decision is binding authority for similar cases decided by the same court or by lower
courts within the same jurisdiction. The decision is not binding on courts of higher rank
within that jurisdiction or in other jurisdictions, but it may be considered as persuasive
authority.

Because common-law decisions deal with everyday situations as they occur, social changes,
inventions, and discoveries make it necessary for judges sometimes to look outside reported
decisions for guidance in a case of first impression (previously undetermined legal issue).
The common-law system allows judges to look to other jurisdictions or to draw upon past or
present judicial experience for analogies to help in making a decision. This flexibility allows
common law to deal with changes that lead to unanticipated controversies. At the same time,

29
stare decisis provides certainty, uniformity, and predictability and makes for a stable legal
environment.

Doctrines of Equity
Equity is the name given to the set of legal principles, in jurisdictions following the English
common law tradition that supplement strict rules of law where their application would
operate harshly.

Equity has an ordinary meaning and a technical meaning. In the ordinary sense, equity means
fairness, justice, morality, fair play, equality etc. In this sense, we are talking about doing
good or doing what is morally right. It is regarded as a body of rules that is an appendage to
the general rules of law.

The Constitution takes this into account, for example in article 10 on National Values when
it adopts the values of human dignity, equity, social justice, inclusiveness, equality, human
rights, non-discrimination and protection of the marginalised and protects the right to
equality and non-discrimination in article 27. In article 159, it provides that in exercising
judicial authority, the courts and tribunals shall be guided by the following principles (a)
justice shall be done to all, irrespective of status; (b) justice shall not be delayed.

In a legal sense, equity it is the branch of the law which, before the Judicature Act of 1873
came into force, was applied and administered by the Court of Chancery. Equity is
commonly said to ‘mitigate the rigor of common law,’ allowing courts to use their discretion
and apply justice in accordance with natural law. In practice, modern equity is limited by
substantive and procedural rules, and English legal writers tend to focus on technical aspects
of equity.

A historical criticism of equity as it developed was that it had no fixed rules of its own, with
the Lord Chancellor occasionally judging in the main according to his own conscience. The
rules of equity later lost much of their flexibility, and from the 17th century onwards equity
was rapidly consolidated into a system of precedents much like its common-law cousin.

30
Customary Law
During the colonial era, the British applied a dual system of law: in areas under “direct rule”
English law applied while in areas under “indirect rule” customary or traditional laws were
allowed to continue to apply to native populations under the supervision of the British.
English law applied in all areas to people of English descent and to Africans who “opted out”
of customary law.

In addition, serious offenses against the state, or criminal offenses, were generally dealt with
under English law.

The Common Law system also recognised unwritten rules and norms as part of the law (as
opposed to civil law systems that generally require law to be written).

Against this historical backdrop, today, customary law is increasingly being treated as part
of the common law. The Constitutions of some countries actually recognise this. Sierra
Leone, for example, explicitly states that customary laws are part of the common law of the
country.

In Kenya, the Judicature Act recognises customary law as part of the Kenyan law.

The discretion of the court to apply customary law is subject to the proviso that customary
law cannot be applied where it is contrary to written law or is contrary to public policy or
natural justice.

For customary law to be applied, the following conditions should be met:

(i) One or more of the parties must be subject to it or affected by it,

(ii) It should not be inconsistent with any written law, and

(iii) It should not be repugnant to justice and morality.

But there are cases where statutes recognise the operations of customary law above the
express provisions of statutory law. The Law of Succession Act, Cap 160 for example,
provides in section 33 that:

31
[Notwithstanding the provisions of that part] the law applicable to the
distribution on intestacy of [some] categories of property ... shall be the law or
custom applicable to the deceased's community or tribe, as the case may be.

Now, under the Kenyan Constitution, article 11 has given more impetus to the operation of
customary law by recognising culture as the foundation of the nation and as the cumulative
civilization of the Kenyan people and nation and enjoins the State to promote all forms of
national and cultural expression.

In Monica Jesang Katam v Jackson Chepkwony & Another [2011], Justice J.B. Ojwang’
(Now a supreme court Judge but) then at the High Court affirmed the right of Inheritance in
woman to woman marriage as acceptable law in Kenya under our customs. Monica Jesang
had claimed the right of inheritance by affirming that she was a beneficiary of the estate of
Cherotich Kimong’ony Kibserea (deceased) by virtue of having been married to the deceased
in a woman to woman marriage under the Nandi tradition. The High Court at Mombasa in
deciding the case upheld customary law by observing that contemporary social systems for
instance, in the shape of current practices in the domain of family among the Nandi were to
be regarded as aspects of culture which would rightly claim protection under Article 11 (1)
of the Constitution of Kenya 2010. The Constitution under the Article recognized culture as
the foundation of the nation and as the cumulative civilization of the Kenyan people and the
nation.

However, it is provided in article 2 of the 2010 Constitution that customary law that is
inconsistent with this Constitution is void (art 2). Furthermore, Article 159 enjoins the courts,
in exercising judicial authority, to ensure that traditional dispute resolution mechanisms shall
not be used in a way that—

(i) Contravenes the Bill of Rights;

(ii) Is repugnant to justice and morality or results in outcomes that are repugnant to justice
or morality; or

(iii) Is inconsistent with this Constitution or any written law.

32
International Law
A source of law that is not mentioned in the Judicature Act is international law. However,
the Constitution provides in article 2 that the general rules of international law shall form
part of the law of Kenya. Moreover, any treaty or convention ratified by Kenya shall form
part of the law of Kenya under this Constitution, according to the Constitution.

A question that would arise in this regard is: at what hierarchical position does international
law stand in the hierarchy of law, considering that it is not included in the Judicature Act,
Cap 8? It may be possible to settle this through an amendment to that Act to take into
consideration this issue alongside the issue of the reception date in the Act that it might seem
to have been passed by the times today.

Four suggestions may be made with respect to the place of international law in the hierarchy
of law:

(i) Since the Constitution Since international laws (especially treaties protecting human
rights) deal with the same things as the Constitution in the subject, international law
should be given a position at the apex with the Constitution so that any law made
by the legislature that violates international law would be unconstitutional;

(ii) Since the Constitution of Kenya espouses values and principles within which it
operates, wherever there is a conflict between international law and local legislation,
that source that will best help to advance the values espoused should be employed
as binding and thus applied.

(iii) Also stipulates for enforcement of principles created under it through diverse means,
including legislation by Parliament, international law should be viewed as one such
means intended to safeguard constitutional guarantees and should therefore be
placed at the second tier in the hierarchy alongside Acts of Parliament; and

(iv) Since international law has not been subjected to the same legislative rigours in their
adoption as national laws as it normally is the case with other municipal laws, it
should be viewed only as supplementing legislation by Parliament and therefore at
a level below the Acts of Parliament in the hierarchy of laws.

33
Any of this position may be taken depending on the legislative pattern that the country may
adopt to enforce international law.

In Mitu-Bell Welfare Society v. Kenya Airports Authority, SC Petition 3 of 2018, it was held
that the language of article 2 of the Constitution is to be interpreted as meaning that
international laws are a “source of law” in Kenya, and that these laws may be used to inform
Kenya’s interpretation of its own Constitution. The Supreme Court stated at para 132:

Article 2(5) and (6) is inward looking in that, it requires Kenyan Courts of law,
to apply international law (both customary and treaty law) in resolving disputes
before them, as long as the same are relevant, and not in conflict with, the
Constitution, local statutes, or a final judicial pronouncement. Where for
example, a Court of law is faced with a dispute, the elements of which, require
the application of a rule of international law, due to the fact that, there is no
domestic law on the same, or there is a lacuna in the law, which may be filled by
reference to international law, the Court must apply the latter, because, it forms
part of the law of Kenya. In other words, Article 2(5) and (6) of the Constitution,
recognizes international law (both customary and treaty law) as a source of
law in Kenya. By the same token, a Court of law is at liberty, to refer to a norm
of international law, as an aid in interpreting or clarifying a Constitutional
provision.
This case, however, does not fully address the issue at play. Arguably, the best way to view
the hierarchy of international law in our constitutional dispensation is by employing the
interpretation that gives effect to the Constitution and its provisions must always supersede
any other kind of interpretation.

34
Session 4
LEGISLATIVE LAW-MAKING
Introduction
Acts of parliament and other subsidiary legislation done by bodies to which parliament has
conferred the power to legislate are important sources of law.

Primary Legislation
An Act is a statute enacted as primary legislation by national or sub-national legislative
organs. In Kenya, under the 2010 Constitution, the counties have legislative assemblies in
the form of County Assemblies under the devolved system.

It is important to note that the word ‘statute’ is used to denote a formal written enactment of
a legislative authority. The word is usually used to distinguish between the law made by
legislative bodies from case law, decided by courts, and from regulations issued by
government agencies (as subsidiary legislation). Statutory law is also to be distinguished
from and is subordinate to constitutional law.

In Kenya, the Constitution divides the legislative competence between the national
legislature and the county legislature (the 4th schedule to the Constitution). Some of the areas
of legislative competence of the national and county legislative organs overlap including
agriculture, education, health etc.).

Statutes are of several kinds. They may be public or private; declaratory or remedial;
temporary or perpetual etc. A temporary statute is one which is limited in its duration at the
time of its enactment. It continues in force until the time of its limitation has expired, unless
sooner repealed. A perpetual statute is one for the continuance of which there is no limited
time, although it be not expressly declared to be so. If, however, a statute which did not itself
contain any limitation is to be governed by another which is temporary only, the former will
also be temporary and dependent upon the existence of the latter.

35
A statute made by Parliament must accord to the Constitution or else it will be void to the
extent of inconsistency. In Hassan Ali Joho v Suleiman Said Shabal,7 Suleiman Shahbal had
filed a petition in the High Court challenging the validity of the election of Hassan Joho at
the gubernatorial election for Mombasa County. At the heart of the matter was the
constitutionality of section 76(1)(a) of the Elections Act vis-à-vis Art 87(2) of the
Constitution. Section 76(1)(a) stated that a petition to question the validity of an election
shall be filed within twenty-eight days after the date of publication of the results of the
election in the Gazette. Article 87(2) stated that petitions concerning an election, other than
a presidential election, shall be filed within twenty-eight days after the declaration of the
election results by the IEBC. Defining the term ‘declaration’, the Supreme Court declared
the provision of section 76(1)(a) of the Elections Act inconsistent with the provisions of
Article 87(2) of the Constitution and thus pursuant to Art. 2(4), void to the extent of the
inconsistency.

In the SK Macharia Case,8 an application for leave to appeal against the judgement of the
Court of Appeal where the Appeal judge had been removed through the vetting of the
judiciary post the 2010 Constitution, pursuant to section 14 of the Supreme Court Act, the
Supreme Court declared section 14 of the Act unconstitutional insofar as it purported to
confer “special jurisdiction” upon the Supreme Court contrary to the express terms of the
Constitution.

The Process of Legislation/Law Making Process

A draft Act of Parliament is known as a Bill. In territories with a Westminster system, most
Bills that have any possibility of becoming law are introduced into Parliament by the
government. In the UK, this will usually happen following the publication of a ‘white paper’,
setting out the issues and the way in which the proposed new law is intended to deal with
them. In Kenya, these would usually be policy papers or sessional papers prepared by

7
Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others [2014] eKLR
8
Samuel Kamau Macharia & Another v Kenya Commercial Bank & 2 Others, Civil Application No. 2 of 2012

36
government departments and transmitted to Parliament through the Attorney General’s
Office.

A Bill may also be introduced into Parliament without formal government backing. This is
known as a ‘private member's Bill.’

In territories with a multi-cameral parliament, most Bills may be first introduced in any
chamber. However, certain types of legislation are required, either by constitutional
convention or by law, to be introduced into a specific chamber. For example, bills imposing
a tax, or involving public expenditure, are introduced into the National Assembly in Kenya
(see articles 109 and 114), or into the House of Commons in the United Kingdom by
convention. Conversely, bills proposed by the Law Commission and consolidation bills
traditionally start in the House of Lords in the UK.

In Kenya, a Bill not concerning county government is considered only in the National
Assembly while a Bill concerning county government may originate in the National
Assembly or the Senate.

Once introduced, a bill must go through a number of stages before it can become law. In
theory, this allows the bill's provisions to be debated in detail, and for amendments to the
original bill to also be introduced, debated, and agreed to.

In bicameral parliaments, a Bill that has been approved by the chamber into which it was
introduced is ‘send’ to the other chamber. Broadly speaking, each chamber must separately
agree to the same version of the bill. Standing Orders provide for the process of legislation.

Usually, the Bill goes through:

4.3.1 Pre-publication Scrutiny

A Member wishing to introduce a Bill needs to first present to the Speaker a legislative
proposal in accordance with Standing Order 114. The member must ensure that, the
following requirements are met:

(i) A letter presenting the legislative proposal to the Speaker;

(ii) A draft copy of the legislative proposal, if any;
(iii) A memorandum of objectives and reasons for which the legislative proposal is made;

37
(iv) A statement on whether the proposal is a ‘Money Bill' or not; and
(v) A statement on limitation of fundamental rights and freedoms, if any.

The Speaker will subject the legislative proposal to a review to ascertain whether it conforms
with the provisions of the Constitution, statutes and the Standing Orders. The scrutiny
includes establishing that the Bill is drafted in the prescribed legal language.

Where the Speaker is of the opinion that a legislative proposal is not a draft money Bill in
terms of Article 114 of the Constitution, the Speaker will direct that the proposal be referred
to the relevant Departmental Committee for prepublication scrutiny in case of a legislative
proposal not sponsored by a Committee or direct that the proposal be published into a Bill in
the case of a legislative proposal sponsored by a Committee. Where the Speaker determines
that a legislative proposal is a draft money Bill in terms of Article 114 of the Constitution,
the legislative proposal is referred to the Budget and Appropriations Committee. The
Committee, after taking the views of the Cabinet Secretary responsible for Finance, will
recommend whether the Bill should be published or not.

4.3.2 Publication of Bills

After pre-publication scrutiny, the Bill is then published. Publication includes assignment of
a number to the Bill, and the actual printing of the Bill by the Government Printer.

Before approving publication of a legislative proposal into a Bill, the Speaker takes into
account the recommendations of the relevant Committee that undertook pre-publication
scrutiny. In case of “Money Bills” the Speaker must satisfy that the relevant Departmental
Committee and/or Budget and Appropriations Committee has taken into consideration the
opinion of the Cabinet Secretary responsible for Finance.

Once approved by the Speaker, the legislative proposal is published in the Kenya Gazette.
Bills originating from the National Assembly are printed in green colour, whilst those
originating from the Senate are printed in blue colour.

4.3.3 First reading

A Bill is introduced in the House for the first time by way of reading of the title of the Bill
by the Clerk. The First Reading is, by practice in most countries, a purely formal undertaking
to introduce the Bill to the legislature.
38
Upon being read the first time, the Bill stands committed to the relevant select Committee
for consideration. No debate arises and no vote is taken at this stage.

The select Committee proceeds to scrutinize the Bill by calling in the sponsor of the Bill,
inviting various stakeholders, technocrats and external experts pursuant to Article 118 of the
Constitution and later submits a report to the House that may contain proposed amendments
to the Bill.

4.3.4 Second reading

At this stage, a Bill is deliberated upon by the House extensively and the main debate is on
the principles and objects of the Bill. At the commencement of this stage, the member in
charge of the Bill, also known as the sponsor of the Bill, moves a motion for Second Reading,
which takes the following form:

That, the … Bill be now read a Second Time.

It is worth noting that no amendment may be moved to this Motion other than an amendment
to leave out the word “now”. Such an amendment, if approved by the House, defers the
Second Reading of the Bill to a future date.

Moving a Bill involves informing the House on the contents of the Bill and its importance,
including the anticipated benefits that the Bill shall have on society.

At the end of debate on the Second Reading of the Bill, a vote is taken by the House, and if
the Motion is passed, the Bill proceeds to the Committee Stage, but if it is defeated, the Bill
is lost. If the Bill is passed at the conclusion of this stage, any Member wishing to introduce
amendments may submit their proposals to the Clerk at least twenty-four hours before the
commencement of the sitting at which the part of the Bill is to be considered in Committee.
This is to afford sufficient time for processing and approval by the Speaker for consideration
of the amendments in the Committee of the Whole House.

4.3.5 Committee Stage

Committee of the Whole House refers to an arrangement in which the Plenary converts itself
into a Committee that is comprised of the whole membership (Members) of the Assembly.
Hence the Committee is the Committee of the Whole House that is constituted to consider

39
the Bill in detail clause-by-clause, which includes the title, preamble and schedules contained
in the Bill.

The Committee of the whole House is chaired by the Deputy Speaker or any member of the
Chairpersons' Panel (previously known as the Speaker's Panel). The Member presiding over
the Committee of the Whole House is referred to as the Chairperson (as opposed to being
referred to as the Speaker in Plenary).

Where amendments are proposed to any part of the Bill, the Committee considers the
amendment and takes a vote on each of them. If the amendment is passed, it becomes part of
the Bill.

At the conclusion of consideration of the Bill at the Committee of the Whole House stage,
the Sponsor of the Bill moves a Motion seeking that the Chairperson reports the consideration
of the Bill to the House. In the event that the Committee is unable to conclude consideration
of the Bill, the Sponsor moves a Motion that the Committee reports to House the progress
made thus far on the Bill.

At the Committee stage, the public is allowed to participate and present memoranda in
support or opposition of the Bill. The public can suggest amendments to the Bill, which are
considered and voted upon by the Committee.

4.3.6 Report Stage

At this stage, the Committee resolves to return to the House and the Chairperson of the
Committee reports to the House the Committee's consideration of the Bill or Report on
progress made thus far.

Thereafter, a Motion for Agreement with the Report of the Committee of the whole House
is moved, seconded and question proposed and put. A Motion for Agreement is one that
seeks approval of the House with the form in which the Committee of the whole House has
considered the Bill.

A Member who wishes to have any part of the Bill reconsidered in the Committee may move
a Motion to amend the Motion for Agreement seeking re-committal of the specific part(s) of
the Bill. The Member may move that the Motion be amended by inserting the words “subject

40
to re-committal of Clause(s)/Schedule/Title (as the case may be) of the Bill.” If the Motion
is agreed to, the House resolves back into a Committee immediately or on a different day to
be determined by the House Business Committee. During re-committal, the Committee shall
confine itself to the specific part(s) that have been recommitted.

4.3.7 Third Reading

The final stage of the passage of a Bill through the House is the Third Reading. No further
substantive amendments are taken up at this stage, though drafting amendments and
renumbering of clauses may be accepted. Generally, there is very little debate during the
third reading, and a final vote is taken.

If the Bill does not concern county governments, the Speaker of the National Assembly
refers it to the President for assent. If the Bill concerns county governments, it is referred to
the Senate for concurrence.

4.3.8 Consideration of the Bill Requiring Deliberation of the Other House

Once the National Assembly passes a Bill concerning county governments, the Speaker
refers it to the Senate for concurrence by way of a Message to the Senate together with the
Bill in the form passed by the National Assembly. The Speaker of the National Assembly
will also receive communication from the Speaker of the Senate, if the Bill commenced at
the Senate.

When a Bill is transmitted from one house to the other, the Bill is read a first time and referred
to the relevant Committee. The House then processes the Bill in the same manner as Bills
originating from that House. That House may pass the Bill without amendments.

After considering and making a decision on the Bill, the Speaker conveys the House’
decision to the other House by way of a Message, indicating the decision on that Bill.

If amendments are proposed, the Bill is committed to mediation. A Bill is transmitted to a

Mediation Committee if the House rejects a Bill received at Second or Third Reading; or the
House rejects the amendments to a Bill originating from the other House.

41
Whenever a Bill stands committed to a Mediation Committee, the Speakers of both Houses
appoint equal number of Members to a Mediation Committee to consider that Bill and
communicate the decision to the other House.

The Quorum of a Mediation Committee is a third of its total membership, and should be an
equal number of Members from both Houses. The chairperson and vice chairperson of the
Mediation Committee are appointed by the majority of the Members present at the first
meeting thereof, provided the two are not members of the same House. By practice, however,
the chairperson of the Mediation Committee is ordinarily a Member of the House that
originated the Bill.

The mandate of a Mediation Committee is to attempt to develop a version of the Bill that
both Houses will agree on and pass. In most cases, Mediation Committees on Bills are
restricted to consideration of the contested Clause(s) of the Bill under consideration. The
Mediation Committee has thirty (30) days to develop the mediated version of the Bill. The
thirty days start counting from the day the Committee holds its first sitting.

In the event that the Mediation Committee fails to agree on a version of the Bill within thirty
(30) days, the Bill is defeated. However, if a draft is agreed, upon development of the agreed
version of the Bill, the Mediation Committee tables in both Houses a Report on its
consideration of the Bill and the mediated version of the Bill thereof for consideration by
both Houses.

If both Houses approve the Report of the Mediation Committee and the mediated version of
the Bill, the Bill is deemed to have been passed. The Speaker of the National Assembly then
proceeds to refer the Bill to the President for assent within seven (7) days following the
passage of the mediated version.

In the event that either House rejects the version proposed by the Mediation Committee, the
Bill is defeated.

4.3.9 Presidential Assent

In Kenya, A Bill passed by Parliament has to get presidential assent to become a law. Under
the Constitution, a Bill that has been passed by Parliament and assented to by the President

42
shall be published in the Gazette as an Act of Parliament within 7 days after assent (article
116 of the Constitution).

An Act of Parliament comes into force on the 14th day after its publication in the Gazette,
unless the Act stipulates a different date at which it will come into force.

An Act of Parliament that confers a direct pecuniary interest on members of Parliament shall
not come into force until after the next general election of members of Parliament.

Delegated Legislation
An Act of Parliament or legislation of a county, may confer on any State organ, State officer
or person the authority to make provision having the force of law in Kenya. For this to be so,
the Act has to expressly specify the purpose and objectives for which that authority is
conferred, the limits of the authority, the nature and scope of the law that may be made, and
the principles and standards applicable to the law made under the authority.

Delegated legislation is also called subsidiary legislation. They can be in the form of by-
laws, statutory instruments, regulations etc. By-Laws are regulation made by a local authority
or corporation under mandates conferred by Acts of Parliament. Statutory Instruments are
normally prepared by Government Departments and are meat to fill out the details of primary
legislation or sometimes even change primary legalisation without having to pass another
Act through Parliament. Regulations are rules made by a government or other authority in
order to control the way something is done or the way people behave. This is normally also
under authority conferred by statutes (Acts of Parliament).

4.4.1 Why is it necessary to have controls over delegated legislation?

Delegated legislation is made by non-elected bodies away from democratically elected
politicians (parliament), as a result many people have the power to pass delegated legislation,
which provides a necessity for control, as without controls bodies would pass outrageous
unreasonable legislation which was attempted in the past. In Strictland v Hayes Borough
Council (1986), a bylaw prohibiting the singing or reciting of any obscene language
generally, was held to be unreasonable and as a result the passing of this delegated legislation
was rejected.

43
It is essential to control the exercise of delegated legislative power in order to avoid
authorities abusing their powers (R v Secretary of State for Education and Employment, ex
parte National Union of Teachers (2000) and Commissioners of Custom and Excise v Cure
and Deely Ltd (1962)).

Another issue which occurs which makes controls over delegated legislation vital is sub-
legislation, which is where law making is handed down another level to people other than
those who were given the original power to do so, to implement important policies. Creating
criticism that our law is made by civil servants (who may know hardly anything about the
law) and just rubber stamped by the Minister of that apartment, this requires law passed by
these civil servants to be checked by the scrutiny committee of parliament or the courts.

Moreover, delegated legislation can share the same issues as Acts of Parliament such as
obscure wording that can lead to difficulty in understanding the law, which again makes
controls necessary as parliament or the courts can stop unclear legislation, which will affect
the lives of hundreds of people from passing.

4.4.2 Advantages of Delegated Legislation

(i) Parliament does not have the time to legislate on all issues;

(ii) They are speedy to enact and are therefore suitable for emergency intervention;

(iii) They are flexible or less rigid than Acts of Parliament and therefore they are easy
to amend or appeal;

(iv) Parliament will not usually have the requisite technical capacity.

4.4.3 Disadvantages of delegated legislation

(i) Lack of adequate parliamentary control;

(ii) Lack of adequate Judicial control;

(iii) They are undemocratic as they are not made by democratically elected persons;

(iv) Too much delegated legislation contributes to uncertainty in the law;

(v) There is the danger of sub-delegation.

44
4.4.4 The Concept of Ulta Vires in the Exercise of Delegated Powers
With relation to delegated legislation, there are issues of ultra vires which have to be
appreciated. It may be substantive or procedural ultra vires exercise of delegated powers.

Ultra vires is a Latin phrase meaning literally "beyond the powers", although its standard
legal translation and substitute is "beyond power".

a) Substantive ultra vires - the authority making the delegated legislation

exceeds the powers granted by Parliament.

b) Procedural ultra vires - where the authority making the delegated legislation
contravenes any mandatory procedure set out in the parent statute.

Ultra vires delegated legislation will be amenable for quashing by courts of law. The doctrine
of ultra vires gives courts considerable powers of oversight over decision-making. The range
and variety of bodies amenable to the doctrine is large. Ministers, or any public body with
statutory powers, may be included. The doctrine also applies to companies and corporations
that are amenable to the remedies of declaration or injunction.

A local authority that enters an agreement or contract that is outside its statutory powers is
said to be acting ultra vires. In Hazel v Hammersmith,9 the House of Lords held that various
speculative investments undertaken by local authorities lacked express statutory
authorization and were void with severe consequences for those who had invested in local
authority activities declared illegal by the courts.

The grounds for claiming ultra vires range from abuse of power, acting unreasonably
(Padfield v Minister of Agriculture, Fisheries and Food,10 or acting not in accordance with
the rules of natural justice.

Ultra vires is a formidable doctrine for the courts to intervene and challenge the legality of
decisions. Ultra vires may result in significant consequences for the body exercising legal

9
[1991] 1 All ER 545.
10
[1968] AC 997).

45
powers. In many cases the decision that is ultra vires may be said, in law, never to have taken
place, with often severe consequences from such a finding on the parties to any agreement.

In Kaka Travellers Cooperative and Savings and Credit Society v Nairobi City Council, the
High Court held that the levying of parking charges by the respondent without the installation
of parking metres as required by the Traffic Act was ultra vires the Act. Justice Korir Weldon
faulted the city council for arbitrarily increasing parking fees without following its own by-
laws. The Court held that:

“The Traffic Act which donated power to the local authorities to impose parking
charges provided that the said parking charges should be imposed by way of by-
laws made in accordance with the Local Government Act.”

Under the Traffic Act, parking meters was required to assist calculate the charges to be
levied.

46
Session 5
STRUCTURE AND JURISDICTION OF COURT AND
JUDICIAL ACCOUNTABILITY IN KENYA
Introduction
Structure of the court system refers to the hierarchical arrangement of the court from the
lowest to the highest one. Composition of the court on the other hand refers to the presiding
judicial officer(s) that is the Magistrates and the Judges. Kenya has a court system that
operates at different levels. Jurisdiction of a court describes the kind of cases that a particular
court is empowered to hear and determine.

Superior Courts/Courts of Record in Kenya

5.2.1 The Supreme Court
The court is established under article 163 and the Supreme Court Act (No. 7 of 2011). The
Chief Justice is the president of the court and deputised by the Deputy Chief Justice. The
number of Judges of the Supreme Court is 7. However, it is possible to have more than seven
where a Chief Justice completes their term before attaining retirement age judges of Supreme
Court.

The Court’s jurisdiction includes:

(i) Exclusive original jurisdiction to hear and determine disputes relating to the elections
to the office of President; and

(ii) Appellate jurisdiction to hear and determine appeals from the Court of Appeal; and
any other court or tribunal as prescribed by national legislation.

a) Appeals from the Court of Appeal lie to the Supreme Court - For cases involving the
interpretation or application of the Constitution at the Court of Appeal an appeal lies
as of right to the Supreme Court.

b) In other cases, where the Supreme Court or the Court of Appeal certifies that a matter
of general public importance is involved, an appeal will lie to the Supreme Court.

47
(iii) 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 Re the Matter of Commissioner for the
Implementation of the Constitution (Application No. 1 of 2011, [2011] eKLR), the
Supreme Court affirmed its jurisdiction to hear matters related to the date of the first
elections under the 2010 Constitution but referred the case to the High Court at the
first instance since it was also seized with an appellate jurisdiction were the matter to
proceed beyond the High Court and Court of Appeal.

All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court.

In Peter Oduor Ngoge v Hon Francis Ole Kaparo and 5 Others,11 the issue was whether the
Supreme Court could entertain an application where the Court of Appeal has either not
determined such motion by the petitioner for leave under s.19 of the Supreme Court Act,
2011, or, has entertained such an application but declined to grant leave; and whether an
ordinary subject of leave-to-appeal can trans-mutate to a meritorious theme involving the
interpretation or application of the Constitution. It was held that the appellate jurisdiction of
the Supreme Court is defined clearly enough under Article 163 of the Constitution, and s.19
of the Supreme Court Act and the petitioner’s case which had been brought without the leave
of the Court of Appeal was outside the jurisdiction of the Supreme Court. According to the
Court, the petitioner in this case had not rationalized the transmutation of the issue from an
ordinary subject of leave-to-appeal, to a meritorious theme involving the interpretation or
application of the Constitution – such that it becomes, as of right, a matter falling within the
appellate jurisdiction of the Supreme Court.

The Court further held that, in the interpretation of any law touching on the Supreme Court’s
appellate jurisdiction, the guiding principle is to be that the chain of Courts in the
Constitutional set-up, running up to the Court of Appeal, have the professional competence,
and proper safety designs, to resolve all matters turning on the technical complexity of the

11
Supreme Court of Kenya at Nairobi Petition No. 2 Of 2012

48
law; and only cardinal issues of law or of jurisprudential moment, will deserve the further
input of the Supreme Court.

In the SK Macharia Case, an application for leave to appeal against the judgement of the
Court of Appeal where the Appeal judge had been removed through the vetting of the
judiciary post the 2010 Constitution, pursuant to section 14 of the Supreme Court Act, the
Supreme Court declared section 14 of the Act unconstitutional insofar as it purported to
confer “special jurisdiction” upon the Supreme Court contrary to the express terms of the
Constitution. Recognising the good intention of Parliament, the Court nevertheless found
that where the constitution exhaustively provides for the jurisdiction of a court of law, the
court must operate within the constitutional limit. It cannot expand its jurisdiction through
judicial craft or innovation. Nor can Parliament confer jurisdiction upon a court of law
beyond the scope defined by the Constitution.

In Cyrus Shakhalaga Khwa Jirongo v Soy Developers Limited & 9 others [2021] eKLR, the
Supreme Court upheld the right of the Appellant to lodge his appeal as of right (brought
pursuant to Article 163(4)(a) of the Constitution) as the entirety of the issues raised
concerned the enforcement of his rights to a fair trial and the determination of the powers of
prosecution on the conferred on the DPP under the Constitution.

5.2.2 The Court of Appeal

This court is established under article 164. It consists of the President and not fewer than
twelve judges and not more than thirty judges (the Court of Appeal (Organization and
Administration) Act, 2015, section 4 and the Judicature Act s 7(1)).

The head of the Court of Appeal is the President of the Court elected by the judges of the
Court of Appeal from among themselves.

The Court’s jurisdiction is to hear appeals from the High Court; and any other court or
tribunal as prescribed by an Act of Parliament.

The decisions of the Court are binding upon the High Court and other subordinate Courts.

Under the repealed Constitution, the Court of Appeal was the highest court of the land (s.
64). This was created by a Constitutional amendment in 1977 after the collapse of the East

49
African Community.12 Before that, the East African Court of Appeal which was an organ of
the first East African Community was the highest appellate Court for the three East African
Countries of Kenya, Uganda and Tanzania.

5.2.3 The High Court

Under the repealed Constitution, the High Court was established under Section 60 as a
superior court of record and which had unlimited original jurisdiction in criminal and civil
matters and such other jurisdiction and powers as may be conferred on it by the Constitution
or any other law.

The 2010 Constitution, established this court in article 165. The head of the Court is the
Principal Judge of the High Court, who is elected by the judges of the High Court from
among themselves.

In terms of jurisdiction, the High Court has:

(i) 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 this
Constitution to consider the removal of a person from office (other than a tribunal
appointed to remove the President under Article 144);

(iv) Jurisdiction to hear any question respecting the interpretation of this Constitution
including the determination of:

a. The question whether any law is inconsistent with or in contravention of the

Constitution;

b. 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;

12
Act No. 13 of 1977, s. 2, 7

50
c. 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; and

d. A question relating to conflict of laws between the county law and the national
laws under Article 191;

(v) 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.

(vi) Any other jurisdiction, original or appellate, conferred on it by legislation.

The High Court does not have jurisdiction in respect of:

(i) Matters reserved for the exclusive jurisdiction of the Supreme Court; or

(ii) Matters falling within the jurisdiction of:

a) ELR Court established under art 162(2) of the Constitution and Act No 20 of
2011; and

b) Environment and Land Court established under art 162(2) of the Constitution
Act No 19 of 2011.

In practice only those cases in respect of which the subordinate courts have no jurisdiction
will be heard in the High Court. As a superior court of record decisions of the High Court
are binding on subordinate courts. Thus the High Court hears ordinary civil cases where the
value of the subject matter exceeds the pecuniary jurisdiction the Resident Magistrate courts.

In criminal cases the High Court only hears cases relating to offences of murder and treason.

In addition to the ordinary civil and criminal jurisdiction of the High Court there are certain
matters which can only be heard by the High Court originally.

These include:

(i) Interpretation of the Constitution art 165(3)(d).

(ii) Cases involving enforcement of fundamental rights and freedoms of the individual
which are set out in Chapter 4 of the Constitution (art 165(3)(b).

51
(iii) Election Petitions involving parliamentary election (excluding that of presidential
elections which is within the exclusive jurisdiction of the Supreme Court).

(iv) Judicial Review (Under Order 53 of the Civil Procedure Rules, the High Court has
powers of Judicial Review of administrative action and can grant orders of
Certiorari, Mandamus and Prohibition).

(v) Supervisory Jurisdiction (the High Court exercises supervisory jurisdiction over
subordinate courts and in this regard can transfer cases from one subordinate court
to another if it deems it fit).

(vi) Admiralty jurisdiction (section 4 of the Judicature Act provides that the High Court
shall be a court of admiralty i.e. the court shall entertain cases of High Seas,
territorial waters, lakes and other navigable inland waters).

(vii) Winding up of Companies (this can only be filed at the High Court).

(viii) Probate jurisdiction (under the Laws of Succession).

(ix) Bankruptcy petitions.

(x) Matters dealing with intellectual property.

With regard to the composition of the High Court, ordinarily, the High Court is duly
constituted by a judge sitting alone. However, there are instances where three or more High
Court Judges may sit together to hear certain types of cases. Issues raising substantial
question of law are normally to be heard by an uneven number of judges, being not less than
three. For example, in matters raising substantive constitutional question the Chief Justice is
required to appoint at least three High Court judges to hear the case.

Previously, section 7 of the Judicature Act Cap 8 provided a limit of 70 judges. This has now
been increased to the principal judge and not more than 200 Judges as per the High Court
(Organization and Administration) Act, 2015.

All appeals from the High Court lie to the Court of Appeal.

52
5.2.4 The Specialised Courts
Under article 159(1), judicial authority is exercisable by courts and tribunals established by
or under the Constitution. Some specialised courts have thus been established by the
Constitution and are ranked alongside the High Court. These include:

a) Employment and Labour Relations Court (ELRC)

Before 2010, the Industrial Court was established under the Trade Disputes Act Cap 234. As
noted above, it now ranks at the same level as the High. Its composition included a judge and
two other members appointed from a panel constituted by the Minister for Labour. The judge
of the Industrial Court was appointed by the President for a renewable term of 5 years and
the requisite qualifications were the same as those for other judges.

Its jurisdiction was to hear industrial disputes that occurred between employer and
employees, federation of employers and employee unions etc. These related to matters of
employment, terms of employment, dismissal redundancy, collective bargaining agreement
etc. No Appeal lay from an award of the Industrial Court.

The Constitution of 2010 has now created the Employment and Labour Relations Court, art
162, which is at the same status as the High Court to determine industrial disputes.

In United States International University (USIU) v Attorney General & 2 others,13 the
question was whether the Industrial Court is competent to interpret the constitution and
enforce matters relating to breach of fundamental rights and freedoms and whether
employment and labour relations matters which raise constitutional issues filed in the High
Court prior to establishment of the Industrial Court should be handled by the High Court. It
was held that:

(i) The Industrial Court Act 2011 is silent on the jurisdiction of Industrial Court to
interpret the Constitution or to enforce fundamental rights and freedoms. Likewise,
Art 165 of the Constitution is silent whether the courts of the status of the High Court

13
High Court, Nairobi, Petition No 170 of 2012.

53
have jurisdiction to interpret the constitution, and enforce fundamental rights and
freedoms under the Bill of rights.

(ii) The Industrial Court as constituted under the Industrial Court Act, 2011 as a court
with the status of the High Court, is competent to interpret the Constitution and
enforce matters relating to breach of fundamental rights and freedoms, in matters
arising from disputes falling within the provisions of section 12 of the Industrial
Court Act, 2011.

(iii) The Industrial Court, having been established to deal with employment and labour
matters. It follows that all employment and labour relations matters pending in the
High Court, shall be heard by the Industrial Court which is a court of the status of the
High Court. The High Court therefore lacks jurisdiction to deal with matters of
employment and labour matters whether filed in the High Court before or after the
establishment of the Industrial Court.

Both matters were thus transferred to the Industrial Court for hearing and disposal.

In Kenyatta University v Industrial Court of Kenya & another,14 the question before the High
Court was whether the High Court had jurisdiction to entertain an application pertaining to
issues of employment and labour relations and to supervise the Industrial court. It was held
that the jurisdiction of the High Court vis-à-vis the Industrial Court has now been settled by
Article 165(5) of the Constitution which provide that the High Court shall not have
jurisdiction to determine matters pertaining to employment and labour relations. Jurisdiction
over such matters is now vested by Article 162(2) in the Industrial Court, a court with the
status of the High Court established under the provisions of the Industrial Court Act, 2011.

However, it was noted that neither the Constitution nor the Industrial Court Act operates
retrospectively and the High Court had jurisdiction to supervise the Industrial Court as it
existed in February, 2007 when the decision impugned in this application was made. Thus,
had it found that the Industrial Court acted in excess of its jurisdiction, then the High Court

14
Misc. Civil Appl. No. 430 of 2007 [2012] eKLR.

54
would have had the jurisdiction to quash the decision if it was reached ultra vires the
jurisdiction of the respondent.

b) Environment and Land Court (ELC)

Environment and Land Court is a relatively new court established by the Environment and
Land Court Act (No 19 of 2011) pursuant to the Constitution of 2010. The court is at the
same level as the High Court as per art 162(2)(a) & (b)).

Subordinate Courts
The 2010 Constitution does not say much else about the Subordinate Courts except to grant
Parliament the powers to define the functions, roles and jurisdiction of these courts. Article
169 states:

(1) The subordinate courts are:

(a) The Magistrates courts;
(b) The Kadhis’ courts;
(c) The Courts Martial; and
(d) Any other court or local tribunal as may be established by an Act of
Parliament, other than the courts established as required by Article 162(2).
(2) Parliament shall enact legislation conferring jurisdiction, functions and
powers on the courts established under clause (1).
5.3.1 Magistrate Courts
a) As Established under the Magistrate’s Courts Act
These are established under Section 5 of Magistrates' Courts Act Cap 10. The magistrates’
courts are hierarchical and are presided over by chief magistrates, senior principal
magistrates, principal magistrates, senior resident magistrate or resident magistrates.

The magistrates’ courts exercise criminal jurisdiction under section 6 of the Act. Such
jurisdiction and powers in proceedings of a criminal nature may be conferred on it by (a) the
Criminal Procedure Code (Cap. 75); or (b) any other written law.

The courts exercise civil jurisdiction under section 7 of the Act. The magistrate's courts have
and exercise jurisdiction and powers in proceedings of a civil nature in which the value of
the subject matter does not exceed —

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(a) Twenty million shillings, where the court is presided over by a chief magistrate;
(b) Fifteen million shillings, where the court is presided over by a senior principal
magistrate;
(c) Ten million shillings, where the court is presided over by a principal magistrate;
(d) Seven million shillings, where the court is presided over by a senior resident
magistrate; or
(e) Five million shillings, where the court is presided over by a resident magistrate.

The Chief Justice may from time to time, by notice in the Gazette, revise the pecuniary limits
of jurisdiction, taking into account inflation and change in prevailing economic conditions.

Further, a magistrate's courts have jurisdiction on matters under African customary law in
proceedings of a civil nature concerning:

(a) Land held under customary tenure;

(b) Marriage, divorce, maintenance or dowry;
(c) Seduction or pregnancy of an unmarried woman or girl;
(d) Enticement of, or adultery with a married person;
(e) Matters affecting status, and in particular the status of widows and children including
guardianship, custody, adoption and legitimacy; and
(f) Intestate succession and administration of intestate estates, so far as they are not
governed by any written law.

Under section 8, the magistrate's courts have the jurisdiction to hear and determine
applications for redress of a denial, violation or infringement of, or threat to, a right or
fundamental freedom in relation to the freedom from torture and cruel, inhuman or degrading
treatment or punishment; and freedom from slavery or servitude. This is subject to Article
165(3)(b) of the Constitution and the pecuniary limitations set out in section 7(1). But the
magistrates do not have the jurisdiction to hear and determine claims for compensation for
loss or damage suffered in consequence of a violation, infringement, denial of a right or
fundamental freedom in the Bill of Rights.

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Under section 9, the magistrate’s courts may entertain claims in employment and labour
relations; and in land and environment cases subject to the pecuniary limits. The courts may
hear land matters concerning:

(vi) Environmental planning and protection, climate issues, land use planning, title,
tenure, boundaries, rates, rents, valuations, mining, minerals and other natural
resources;
(vii) Compulsory acquisition of land;
(viii) Land administration and management;
(ix) Public, private and community land and contracts, choses in action or other
instruments granting any enforceable interests in land; and
(x) Environment and land generally.

Under section 10, the court has jurisdiction over contempt of Court in the face of the Court
where a person:

(a) assaults, threatens, intimidates, or insults a magistrate, court administrator, judicial

officer, or a witness, during a sitting or attendance in Court, or in going to or returning
from the Court;
(b) interrupts or obstructs the proceedings of the Court; or
(c) without lawful excuse disobeys an order or direction of the Court in the course of the
hearing of a proceeding.

In the case of civil proceedings, the court will exercise jurisdiction over wilful disobedience
of any judgment, decree, direction, order, or other process of a court or wilful breach of an
undertaking given to a court constitutes contempt of court.

In the case of criminal proceedings, the court will entertain contempt by the publication,
whether by words, spoken or written, by signs, visible representation, or otherwise, of any
matters or the doing of any other act which (a) scandalizes or tends to scandalize, or lowers
or tends to lower the judicial authority or dignity of the court; (b) prejudices, or interferes or
tends to interfere with, the due course of any judicial proceedings; or (c) interferes or tends
to interfere with, or obstructs or tends to obstruct the administration of justice.

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In Justus Kyalo Mutunga v Labh Sing Harnam Civil Suit 338 of 2012 High Court at Nairobi
[2012] eKLR, the issues were about the application to transfer a suit for damages arising
from a road accident, after the suit had mistakenly been filed in a subordinate court outside
the territorial jurisdiction of where the accident had occurred. According to the respondent,
the suit could not legitimately be transferred from the Court that had no jurisdiction to one
of competent jurisdiction. It was Held, the Civil Procedure Act is not the instrument that
confers jurisdiction upon the subordinate courts since the jurisdiction of the subordinate
courts is governed by Magistrate’s Courts Act. Section 3(2) of the former Act expressly states
that the Resident Magistrate’s Court shall have jurisdiction throughout Kenya. Per Ringera J
in Mohamed Sitaban v George Mwangi Karok:15

Under section 3(2) of the Magistrate’s Court Act, a court of the resident
magistrate has jurisdiction throughout Kenya. Such a court is not subject to the
local territorial jurisdiction contemplated by section 15 of the Civil Procedure
Act which applied only to courts lower than the Resident Magistrate’s Court.
The Magistrates Court Act was enacted in 1967 long after the Civil Procedure
Act. The Legislature was therefore aware of the provisions of section 15 of the
Civil Procedure Act and where two provisions in different statutes conflict, the
provision in the latter statute is deemed to amend the earlier provision.
There may be sound administrative reasons for filing suits in administrative
Districts in which the defendant resides but those reasons cannot oust a statutory
jurisdiction. The rule that a suit filed in a court without jurisdiction is a nullity
and cannot be transferred is inapplicable in such cases.
Subsequent to the 2013 General Elections, the Magistrate Courts were engaged in hearing
electoral petitions for County Assembly seats. The Chief Justice has also been granted by the
Industrial Court Act, 2011 the authority to appoint some Magistrates Courts to hear and
determine employment and labour relations (industrial) disputes. Obviously, appeals from
these courts would then fall back on the Industrial Court.

b) Under the Children’s Act

Part Viii of the Children’s Act (2022) establishes the Children’s Court as a subordinate court.
The Chief Justice, by notice in the Gazette, appoints the magistrate to preside over cases

15
Civil Application No. 13 of 2002.

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involving children in respect of any area of the country. The children’s court has both civil
and criminal jurisdictions.

Section 91 provides for the jurisdiction of the Children’s Court to include the jurisdiction to:

(f) Conduct civil proceedings on matters concerning parental responsibility, children’s

institutions, custody and maintenance, guardianship, foster care placement, adoption,
and children in conflict with the law;
(g) Hear any charge against a child, other than a charge of murder;
(h) Hear a charge against any person accused of an offence under this act;
(i) Hear a charge in any case in which a person is accused of an offence against a child
or in which a child is the victim or complainant; and
(j) Exercise any other jurisdiction conferred by this act or any other written law

5.3.2 Kadhi Courts

Kadhi Courts are established under art 170 of the Constitution of 2010 as subordinate courts.
The jurisdiction of a Kadhi 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.

Tribunals are usually established by Acts of Parliament.

5.3.3 Courts Martial

Under part VIII of the Armed Forces Act, cap 199, Parliament and the Chief of Defence
Forces have the power to establish a court martial in Kenya.

Courts martial have power to try persons for any offence and to mete punishment. A court
martial is convened to deal with a specific matter. There is, therefore, no permanent structure.

People to be tried by courts martial include members of the Army, Air Force, the Navy and
their reserves. However, the court does not apply to the police force. The courts martial
exercises limited criminal jurisdiction, under only one type of law —military law.

Jurisdiction is penal or disciplinary and designed to ensure discipline in the Armed Forces.
The cases tried include insubordination, cowardice, fraud, theft, aiding an enemy and neglect
of duty.

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Appeals from the decisions of the courts martial lie with the High Court, which must grant
leave before the appeal is heard.

5.3.4 Tribunals and Quasi-Judicial Bodies

Many quasi-judicial tribunals exist with specialised jurisdiction to adjudicate on certain
matters. These courts are usually established by Acts of parliament that confer the
jurisdiction on them. The jurisdiction does not, however, oust the power of the courts to
adjudicate over these disputes. It is nonetheless aimed to provide much cheaper and
expedient routes to settle disputes without too much reliance on technical rules of law. These
tribunals must, however, observe rules of natural justice (i.e. should (i) not be biased, and
(ii) must confer the parties’ opportunities to be sufficiently heard).

Some of the notable tribunals including their jurisdictions are:

a) Rent Restriction Tribunal

The tribunal is established under Section 4 of the Rent Restriction Act, Cap 296, Laws of
Kenya. Its mandate is to determine disputes between landlords and tenants of protected
tenancies, which are residential buildings whose rent does not exceed Ksh.2500. Sec 4 of the
Act provides that the Minister shall, by notice in the Gazette, appoint a panel of members,
consisting of such number of persons as he may think fit, for each tribunal.

b) Business Premises Rent Tribunal

This tribunal was established under Sec 11 of the Landlord and Tenant (Shops, Hotels and
Catering Establishments) Act Cap 301 2012 [Rev 2015]. Under section 12 of the Act, the
tribunal has jurisdiction to do all things which it is required or empowered to do by Act in
controlled tenancies. However, under section 12 (2), it has no jurisdiction to entertain any
criminal proceedings for any offence whether under this Act or other-wise. Under Section
11 of the Act. The tribunal consists of a person or persons (number not specified) all
appointed by the Cabinet Secretary.

c) The Cooperative Tribunal

The tribunal is established under The Co-Operative Societies Act, Cap 490 as amended by
Act No. 2 of 2004. It has jurisdiction to hear disputes among members, past members and

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persons claiming through members of cooperatives, past members and deceased members;
or between members, past members or deceased members, and the society, its committee or
any officer of the society; or between the society and any other co-operative society. The
tribunal has a total membership of eight (8) members of the board consisting of: a chairman
and deputy chairman appointed by the Cabinet Secretary on the nomination of Judicial
Service Commission; an advocate of the High Court of Kenya appointed by the Cabinet
Secretary on the nomination of the Law Society of Kenya; a lawyer with experience in
cooperative law appointed by the Cabinet Secretary; and three persons with at least then
years’ experience in the field of cooperative management and practice appointed by the
Cabinet Secretary in consultation with the apex society. For purposes of hearing and
determining any cause or matter, the chairman and two members of the tribunal shall form a
quorum.

d) Licensing Boards
The tribunals are established under myriad Acts to determine disputes related to licencing of
certain professions and trades. These include Auctioneers Licensing Board

e) Other notable Tribunals

1. Political Parties Disputes Tribunal (PPDT);
2. The National Environment Tribunal;
3. Sports Disputes Tribunal;
4. Water Appeals Board;
5. HIV and AIDS Tribunal;
6. Public Private Partnership Petition Committee;
7. Competition Tribunal;
8. Standards Tribunal;
9. Transport Licensing Appeals Board;
10. Industrial Property Tribunal;
11. Communication and Multimedia Appeals Tribunal;
12. National Civil Aviation Administrative Review Tribunal;
13. Legal Education Appeals Tribunal;

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14. Micro and Small Enterprises Tribunal;
15. Education Appeals Tribunal; and
16. State Corporations Appeals Tribunal.

Types of Jurisdictions
5.4.1 Original Jurisdiction of Courts
The Supreme Court, the High Court and the Subordinate courts have this Jurisdiction.

This is not a jurisdiction of the Court of Appeal. However, the Court can entertain this
jurisdiction on matters of the contempt on the face of the court. It can also entertain
application for injunctions and conservatory orders.

5.4.2 Appellate Jurisdiction

Appeals are not as a matter of right but are possible under provisions of statutes. In the case
of human rights, the Constitution grants the right to appeal.

In Lawrence Nduttu & 6000 Others v Kenya Breweries Ltd & another,16 the Supreme Court
was asked to determine whether the mere allegation of a violation of human rights by a
litigant in his/her pleadings give rise to an automatic right to access the Supreme Court on
appeal and whether the Court required to assume "supervisory appellate jurisdiction" and
inquire into the matter. The court held that:

Only two types of appeals lie to the Supreme Court from the Court of Appeal.
The first type of appeal lies as of right if it is from a case involving the
interpretation or application of the Constitution. In such a case, no prior leave is
required from this Court or Court of Appeal.
The second type of appeal lies to the Supreme Court not as of right but only if it
has been certified as involving a matter of general public importance. It is the
certification by either Court, which constitutes leave. This means that where a
party wishes to invoke the appellate jurisdiction of the Court on grounds other
than that the case is one which involves the interpretation or application of the
Constitution, then such intending appellant must convince the Court that the case
is one involving a matter of general public importance. If the Court of Appeal is
convinced that such is the case and the certification is affirmed by the Supreme
Court, then the intending appellant may proceed and file the substantive appeal.

16
Supreme Court, Petition 3 of 2012 [2012] eKLR.

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The question as to what constitutes "a matter of general public importance" is
one that is bound to be addressed by the Supreme Court in the foreseeable future
as litigants seek certification or leave to lodge appeals on that basis.
The appeal was not based on Article 163 (4) (b) of the Constitution of Kenya,
2010 hence the appellants did not need to obtain prior leave or certification by
either the court of Appeal or the Supreme Court before filing their Appeal.
Even if it were to be assumed that the Court had appellate jurisdiction in appeals against
interlocutory orders, the interlocutory order the nature of which was being appealed against
in the case in question was not one that would inspire the Court to exercise jurisdiction in
favour of the appellants. At any rate, such a scenario could revive the question as to whether
prior leave of the Court would be necessary.

5.4.3 Special Jurisdiction

It has been held by the Supreme Court in Samuel Kamau Macharia and another v Kenya
Commercial Bank Limited and 2 others,17 (regarding the Supreme Court Act conferment of
jurisdiction to the Supreme Court to review the decisions of judges removed through vetting)
that Section 14 of the Act was unconstitutional insofar as it purported to confer “special
jurisdiction” upon the Supreme Court, contrary to the express terms of the Constitution.
Although Parliament had good intentions in providing for the “extra” jurisdiction for the
Supreme Court, as embodied in Section 14 of the Supreme Court Act, ought to have been
anchored under Article 163(4) of the Constitution, or under Section 23 of the Sixth Schedule
on “Transitional Provisions”.

5.4.4 Exclusive Jurisdiction

The Supreme Court and the ELRC and ELC have been conferred with special jurisdictions,
which in some cases are exclusive. No other court can therefore exercise jurisdiction that is
exclusively conferred on another court.

In Kibos Distillers Limited & 4 others v Benson Ambuti Adega & 3 others [2020] eKLR it
was held by the Court of Appeal sitting in Kisumu, that courts do not have jurisdiction to

17
Application No. 2 of 2011.

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handle a multifaceted claim where another forum, institution or agency that has been
legislatively conferred with jurisdiction to determine the matter exists.

Judicial Review and the Writ Jurisdiction of the Superior Courts

The main method through which the court will ensure that the Executive does not abuse its
powers is through judicial review over executive action. At common law, actions or cases
were commenced by a writ obtained from the royal office, the chancery. Every complaint
had a separate writ. The writ was a document which stated the nature of the complaint and
commanded the sheriff of the country where the defendant resided to ensure that the
defendant attended court on a specified date.

Some of the writs that developed in common law include:

5.5.1 Habeas corpus

This is where the court orders that a person who has been detained/ arrested without legal
justification should be released

5.5.2 Certiorari
This is sought where lower courts are directed to produce the record of its proceedings for
review by the High Court for purposes of determining their propriety. If impropriety is found,
the proceedings are quashed.

5.5.3 Prohibition
This is an order from High Court to lower courts preventing them from hearing or continuing
to hear a matter where in is beyond the jurisdiction of that court or it is in violation of the
rules of natural justice.

5.5.4 Mandamus
This order is issued on person or body commands them to perform a certain duty.

In Centre for Rights Education & Awareness (Crew) & others v. The Attorney General
consolidated with Patrick Njuguna & another v the Attorney General & another,18 the
constitutionality of Presidential appointment County Commissioners under the new

18
High Court, Nairobi, Petition 208 & 207 of 2012.

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Constitution was challenged. It was held that, “In applying Article 129, 131, 132 (2), 2, 3,
10, 20, the 47 County Commissioners appointed by the President in which only 10 out of 47
were women did not meet the constitutional requirements at Article 27(8) and violated the
non-discrimination provisions of Article 27”.

In referring to the principle of progressive realization the interpretation in Milka Adhiambo

Otieno & Another v The Attorney General & Others, Kisumu High Court Petition No. 44 of
2011 was upheld. It went further with the view that the phrase ‘progressive realization’ is
applied to those circumstances where an allocation of limited resources is required.

The appointments failed the test of constitutionality by disregarding the national values and
principles set out at Article 10(b) and the principle contained in Article 27(8) of the
Constitution.

With regard to public appointments, it is critical to have public participation and consultation.
The publication of the Gazette Notices presented a fait accompli to the country and thus did
not respect the values and principles of the Constitution.

Section 23 and 24 of the former Constitution, were not saved by the Transitional Provisions
contained in Schedule 6 of the Constitution. Consequently, the President could not make any
appointments under the former constitution.

Doctrines Limiting Jurisdiction

5.6.1 Justiciability Doctrine
Justiciability refers to the types of matters that a court can adjudicate. If a case is ‘non-
justiciable’, then the court cannot hear it. Justiciability rulings usually arise either when a
court does not have power to hear the case under the Constitution or it is imprudent to
exercise judicial power.

5.6.2 Doctrine of Ripeness

Ripeness concerns ‘the timing of judicial intervention,’ and prevents courts ‘from entangling
themselves in abstract disagreements’ by adjudicating disputes too early. No one is entitled
to judicial relief for a supposed or threatened injury until the prescribed administrative

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remedy has been exhausted. In Abbott Laboratories v. Gardner, it was held that to determine
whether a dispute is ripe, two tests would be employed:

(1) the fitness of the issues for judicial decision, and

(2) the hardship to the parties of withholding court consideration” until a later time.

A claim may be unripe if it is based upon future events that may not occur as predicted or at
all. If waiting to decide a case would put the court in a better position to resolve the dispute,
such as when further factual development would help the court adjudicate the case, the case
may be unripe and therefore non-justiciable.

Courts have observed that the standing doctrine's temporal inquiry into whether the plaintiff
has suffered an imminent injury overlaps substantially with the ripeness doctrine's inquiry
into whether withholding judicial consideration of a dispute would cause “the parties a
sufficient ‘hardship’.”

It may be appropriate for courts to postpone adjudicating an issue because subsequent events
may make it easier or unnecessary to resolve that dispute.

5.6.3 Doctrine Standing (Locus Standi)

Locus Standi means appearance before the court or before anybody on a given question. The
Latin word locus (plural loci) signifies ‘place.’ Locus standi therefore means ‘place to stand’.
Technically, it refers to a vested legal right to file a lawsuit so as to provide a party with the
ability to show the court of law that the law or action that has been challenged, has a
considerable relation to the party and the resultant damages justify the party’s involvement
in the case.

According to the doctrine, a person who is stranger to a disputed matter cannot be allowed
to interfere in the judicial proceedings. Stated otherwise, only a person whose legal right has
been violated, that is the aggrieved person against whom a decision has been pronounced, is
allowed to bring an action in the court.

The essence of the doctrine lies in the question as to whether the litigant has the entitlement
to have the court determine the merits of the case or only specific issues associated with it.

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5.6.4 The Political Question Doctrine
Political Question doctrine is the rule that Federal courts will refuse to hear a case if they
find that it presents a political question. This doctrine refers to the idea that an issue is so
politically charged that federal courts, which are typically viewed as the apolitical branch of
government, should not hear the issue.

The political question doctrine is infamously controversial and difficult to apply. The
doctrine involves balancing the separate powers of each branch of government with the
judicial review authority of the Supreme Court. Courts only apply the doctrine in the clearest
of cases.

In the US, the Supreme Court expounded on the political question doctrine in Baker v. Carr
(1962), when it held that federal courts should not hear cases which deal directly with issues
that the Constitution makes the sole responsibility of the Executive Branch and/or the
Legislative Branch.

5.6.5 Doctrine of Mootness

It has long been said that courts have no authority to give opinions upon moot questions,19
that is, when the issues presented are no longer ‘live’ or the parties lack a legally cognizable
interest in the outcome.

An actual controversy must exist not only at the time the complaint is filed, but through all
stages of the litigation.

19
Mills v. Green, 159 U.S. 651, 653 (1895).

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Session 6
THE DOCTRINE OF PRECEDENT AND THE STARE
DECISIS RULE
Introduction
As stated earlier, legal methods refer to the manner in which those who make, activate, or
operate the law use the legal system to arrive at specific legal consequences. The process of
debate of administration, which is intended to produce a particular interpretation of the law
either in itself or in relation to application to specific facts, is part of the legal method. Legal
method is best seen as the process of arriving at specific consequences using legal tools in a
specific context. In the common law legal system adopted in Kenya, the doctrine of precedent
is an important tool that the courts employ when determining matter before them.

Historical Development of the Doctrine of Precedent within the

Common Law System
The doctrine of precedent, that is, upholding decisions made in previous similar cases, have
for many hundreds of years been important in the development of English law, but until the
latter part of the nineteenth century were only persuasive; that is, a judge would be influenced
by the decision in a previous case, but did not consider himself bound by it.

The modern doctrine of precedent, under which a judge is bound by the decision in a previous
case, even if he considers it to be unjust or illogical, is of comparatively modern origin.

In the early days of common law, judges considered that their judgments were merely
declaratory; common law was based on general custom, and they were merely enunciating
what that custom was. This attitude left no room for the development of a doctrine of
precedent. In any event, there was no method of recording judgments fully and accurately.
The development of printing and the improvement in the standards of reporting meant that
from the sixteenth century onwards more attention was paid to decisions in previous cases.

By the early nineteenth century it had been accepted that regard must be paid to previous
decisions and that it was not for the courts ‘to reject them and abandon all analogy to them’.

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Later in the nineteenth century two events occurred which laid the groundwork for the
establishment of the system of binding precedent in England:

In 1865 the Council of Law Reporting was created, and this ensured that for the future there
would be a consistent and reliable system of reporting cases. There had been many earlier
series of reports, but their reliability varied considerably;

Moreover, the whole system of courts was reorganised in England by the Judicature Acts
1873 to1875 and the Appellate Jurisdiction Act 1876. This made easier the task of
recognising the hierarchy of courts and buttressed the binding nature of judicial precedents
from superior courts.

The system of using judicial decision from both the English court decisions, and later by
domestic superior courts, was adopted in Kenya by virtue of the Order-in-Council of 12
August 1897, that was retailed in the Judicature Act (1967). It is provided in the Judicature
Act that: Insofar as 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
Aug 1897, and the procedure and practice observed in courts of justice in England at that
date will be applied.

Judicial Interpretation and Stare Decisis

This is the primary role of judges in the common law system. The best point to start while
considering the role of judges in the common law system is the doctrine of precedent.
Precedent refers to the idea that judges make law in the course of resolving disputes in
common law indication.

The doctrine of precedent can best be summed up in the idea that in “like cases should be
treated alike”. Therefore, all things being equal cases with similar facts and issues in dispute
should be disposed of consistently by the courts.

Under common law, the obligation on a Judge is that precedence must be followed whether
the Judge agrees with that reasoning or not. In this regard precedent could either be binding
to a Judge or it may merely be persuasive. Judges have a duty to follow binding precedents
but not the persuasive ones. An example of a persuasive judgment would be that of another

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jurisdiction for example English Courts decisions are of a mere persuasive authority in
Kenya.

When Judges follow binding precedents they observe the principle known as stare decisis
(also known as the doctrine of binding precedence). This means that once an issue of law is
decided in the courts, it will be normally binding on courts lower down the hierarchy and in
some circumstances on courts at the same level with the hierarchy. This doctrine signifies
that decisions are to be followed because judges feel obligated to do so no matter their view
on the merit of the precedent are they feel obligated to do so and not simply that precedents
are to be followed because judges think that they are good solutions to be imitated.

The principle of stare decisis is therefore said to be paradoxical. On the one hand a court has
the power to decide only the dispute before it and the decision that it announces is binding
in like cases. On the other hand, it is left to the court deciding future cases to determine
whether those cases are like the prior case and therefore whether the prior case must be
followed. The paradox is that a prior case binds the court but only if the court decides that
the prior case is binding.

This paradox has led many lawyers to come to appreciate that the common law is not a set
of fixed rules but rather a process. It is a process whereby later cases are decided in a way
that seems consistent with prior cases, although it is only when the later cases have been
decided that the true meaning of the prior cases becomes known. By continually deciding
which cases are similar or dissimilar to prior cases, courts are in effect shaping the concept
of the previously announced rules. These rules are defined as they are applied, and the law
is therefore in a constant state of evolution, explication and elaboration (Vandevlde K.J.
Thinking like a lawyer).20

The doctrine of stare decisis is fundamental to the common law system which is based on
judge made law. It is what distinguishes common law system from civil law system. In the
latter system the fundamental law is the legislation also known as Code and the obligation
on the judges is to faithfully interpret the code rather than to follow precedent. By contrast

20
(Westview Press 1996) at 35.

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in the former system it is the judge made law which is fundamental and the obligation of
judges is to follow decisions made by courts high up in the hierarchy in the past.

Judicial Precedents
It is however important to note that not everything said by a judge when giving a judgment
constitutes a precedent. This status is reserved for the Judges of superior courts’
pronouncement on the law.

A judge is only obliged to follow a precedent if:

(i) There are numerous factual similarities between the earlier case and the one before
him;

(ii) The inevitable similarities are relevant.

(iii) If the facts upon which the precedent is predicated are stated at a higher level of
generality; for example, in the prior case it was held that presence of a concealed pit
on the land gave rise to a duty on the part of the landowner to warn a guest but the case
before the court involved a guest who fell down a slope. The court characterized the
prior case as involving “hazard rather than concealed pit. For that reason, the decision
of the prior case was binding on the case before the court.

(iv) If the prior case is characterized not in terms of its facts but in terms of the underlying
policy judgment. (For example landowner’s duty to warn guests of pits may be taken
to mean an imposition of a duty on manufacturers to warn consumers on effects in
products.

Ratio Dicidendi and Obiter Dictum

In giving judgment in a case, the judge will set out the facts of the case, state the law
applicable to the facts and then provide his or her decision.

Rupert Cross says: “ratio decidendi is a rule of law expressly or impliedly treated by the
judges as a necessary step in reaching his conclusion”. It is only the ratio decidendi (the legal
reasoning or ground for the judicial decision) which is binding on later courts under the
system of judicial precedent. Salmon defines: "the ratio decidendi may be described roughly

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as the rule of law applied by and acted on by the court, or the rule which the court regarded
as governing the case.”

Any observation made by the judge on a legal question suggested by the case before him or
her but not arising in such a manner as requiring a decision is known as obiter dictum (a
saying by the way). An obiter dictum is a by-product of the original judgment. They are only
remarks and opinions of the judge. A dictum is a rule of law stand by a judge which was
neither expressly nor impliedly treated by him as a necessary step in reaching his conclusion.
Obiter dicta are unrealistic and contrary to current practice. The rules of law based on
“hypothetical facts” are mere dicta. If the result is the same, giving no effect on the decision,
then it is “obiter dictum”.

There may several reasons for a decision provided by the judge in any given judgment and
one must not assume that a reason can be regarded as 'obiter' because some other 'ratio' has
been provided. Thus, it is not always easy to distinguish ratio decidendi from obiter dictum
when evaluating the effects of a particular decision.

Good Hart propounded “material test". The rules of law based on "material facts" are ratio
decidendi. It is the best method in finding "ratio".

Professor wambaugh propounded, on the other hand propounded the "reversal" test.
According to this method, the decision and reasons given by the judge shall be reversed and
observed. If the result is quite opposite, then it is "ratio". It is also the best way in finding
"ratio" of case.

The search for the ratio of a case is a process of elucidation; one searches the judgment for
the abstract principles of law which have led to the decision and which have been applied to
the facts before the court.

As an example, in Donoghue v Stevenson, a dead snail was in the bottle of ginger beer bought
by a friend for Donoghue. She fell ill, and she sued the ginger beer manufacturer, Mr
Stevenson. The House of Lords held that the manufacturer owed a duty of care to her, which
was breached, because it was reasonably foreseeable that failure to ensure the product's safety
would lead to harm of consumers. The ratio in the case would be that a person owes a duty
of care to those who he can reasonably foresee will be affected by his actions.
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Regarding to the obiter dicta of the case, Lord Atkin, one of the case’s judges, mentioned the
“Neighbour Principle”, stating that a person is responsible not to harm another party or
parties if he or she can directly affect them. In other word, the neighbour in this meaning is
anybody who can be affected by the act or the omission of that person.

In Carlill v Carbolic Smoke Ball Company, a case whether a woman who had used a smoke
ball as prescribed could claim the advertised reward after catching influenza, Bowen L.J. in
the dicta said:

If I advertise to the world that my dog is lost, and that anybody who brings the dog to a
particular place will be paid some money, are all the police or other persons whose
business it is to find lost dogs to be expected to sit down and write me a note saying that
they have accepted my proposal? Why, of course (not)!"
Methods of Avoiding Precedents
Judicial precedent is an important source of law as an original precedent is one which creates
and applies a new rule. However, the later decisions, especially of the higher courts, can have
a number of effects upon precedents. In particular, they may be:

(i) Reversal - Where on appeal in the same case the decision is reversed, the initial
decision will cease to have any effect.
(ii) Overruling - This occurs where in a later case a higher court decides that the first case
was wrongly decided
(iii) Refusal to Follow - This arises where a court, not bound by the decision, cannot
overrule it but does not wish to follow it so it simply refuses to follow the earlier
decision.
(iv) Distinguishing - It arises where an earlier case is rejected as authority, either because
the material facts differ or because the statement of law in the previous case is too
narrow to be properly applied to the new set of facts. Arguments for distinguishing a
prior case mirror those for following it. These are:

a) Differences between the two cases;

b) Where similarities between the two cases are irrelevant;

c) Where the precedent is characterized in the narrowest possible terms i.e. is not
general;

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d) Where the policy judgment underlining the prior case does not apply to the current
one

e) Where if the precedent is applied to the case, stare decisis would also require that it
is applied to other cases in which it will produce clearly undesirable results.

(v) Explaining - It happens where a judge may seek to interpret an earlier decision before
applying it or distinguishing it, thus the effect of the earlier case is varied in the
circumstances of the present case.
(vi) Per Incuriam - These are decisions made in error or mistakes and can be avoided.
E.g. a decision of the court that has been reached in total contradiction to the clear
provisions of a statute is per incurium and may thus be avoided the courts.

Advantages and Disadvantages of Judicial Precedents

6.7.1 Advantages
i) Certainty - Liberty to decide each case as one thinks right without any regard to
principles laid down in previous similar cases would only result in a completely
uncertain law in which no citizen would know his rights or liabilities until he
knew before what judge his case would come and could guess what view that
judge would take on a consideration of the matter without any regard to previous
decisions.
ii) Possibility of Growth - The system allows for new rules to be established and old
rules to be adapted to meet new circumstances and the changing needs of society.
Where a precedent is considered to be particularly valuable its scope can be
extended in later cases: conversely, where a precedent is felt to be defective, its
scope can be restricted by the process of distinguishing mentioned above.
iii) Practicality - The rules of case-law that abound in our legal system do not derive
from a particular theory of law, and do not attempt to deal with hypothetical
circumstances. They are the result of the consideration of real situations which
have come before the courts. Precedents are based on real facts unlike legislation
and are thus practical.

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iv) Wealth of Detailed Rules - No code of law could be devised which would provide
the wealth of detail to be found in English case-law.
v) Uniformity - It brings uniformity to the law as similar cases are treated in similar
manner.

6.7.2 Disadvantages of Using Precedents

(i) Rigidity - Once a rule has been laid down it is binding even if the decision is thought
to be wrong, and altercation, other than by distinguishing, which is less than wholly
satisfactory, is difficult. This disadvantage is modified to the extent that the Supreme
Court is not bound by its own previous decisions, but people may be reluctant to bring
appeals before the Supreme Court because of the intricacies of court processes that
lead to that final appeal and, particularly bearing in mind that the Court will not
usually overrule its own previous decision except in the most compelling
circumstances. The possibility that case-law will be abrogated or modified by
legislation alleviates the disadvantage of rigidity to some degree, but in practice it is
rare for the legislation to interfere with case-law.
(ii) Complexity - It is difficult to determine what exactly the ratio dicidendi is since in
most cases, there are a number of reasons that determine how the court rules.
(iii)Cases May Easily Be Avoided - Cases can be easily avoided especially since it is
possible to distinguish the facts in order just to avoid inconvenient precedents.
(iv) Slowness of Growth - It does not allow for adaptation to Change easily. It may take a
long time before a case comes to court in order to settle the question of what the
appropriate law is. The system depends on litigation for rules to emerge. As litigation
tends to be slow and expensive the body of case-law cannot grow quickly enough to
meet modern demands. Where it is felt that a particular case has long been a precedent
operates unfairly.

Bulkiness - There is so much law that no one can learn all of it. There is a danger that even
an experienced lawyer may overlook some important rule in any given case. This is
particularly so with those branches of law which have been developed mainly by case-law,
as, for example, the law of torts.

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Session 7
THE RULE OF LAW, CONSTITUTIONALISM,
SEPARATION OF POWERS AND CHECKS AND
BALANCES AS BASELINES FOR THE KENYAN LEGAL
SYSTEM
Introduction
As noted at the beginning, the legal system a country includes the set of rules of substance
and procedure as well as the institutions relating to the governance of social behaviour and
resolution of disputes which arise in the process, and includes the underlined social values
and attitudes which affect the operations of such values.

In the context of Kenya, doctrines of the rule of law, constitutionalism, separation of powers
and checks and balances are some of the overarching values that underlie the legal system
and determines the methods through which they are operationalised, thus worth of particular
attention here.

The Rule of Law

The rule of law is fundamental to democratic order. Aristotle said more than two thousand
years ago, "The rule of law is better than that of any individual." Lord Chief Justice Coke
quoting Bracton said in the case of Proclamations (1610) 77 ER 1352) in the UK that. “The
King himself ought not to be subject to man, but subject to God and the law, because the law
makes him King.”

7.2.1 Dicey's rule of law

The rule of law in its modern sense owes a great deal to the late Professor AV Dicey.
Professor Dicey's writings about the rule of law are of enduring significance. In his 1885
book, An Introduction to the Study of the Law of the Constitution (often abbreviated as Law
of the Constitution), Dicey laid out his three principles of the rule of law thus:

(i) No punishment may be inflicted on anyone other than for a breach of the law;

(ii) Irrespective of rank and status, all men are equal under the law; and

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(iii) The rights and freedom of citizen are best protected under the common law.

1) Absence of arbitrary power

The first principle involves the absence of arbitrary power on the part of the government and
prevents it from making retrospective penal law. This means that no man is punishable except
for a distinct breach of the law of the land. In order to comply fully with this requirement,
laws should be open and accessible, clear and certain.

Under social contract theories, the individual citizen transfers his rights to the government.
To express it in another way, the individual citizen owes allegiance to the Crown in return
for protection of the Crown. The doctrine of allegiance incorporates the idea of obedience to
law - both on the part of the citizen and the government.

Under the rule of law, the extent of the State's power and the manner in which it is exercise
is limited and controlled by law. This control is aimed at preventing the State from acquiring
and using wide discretionary powers. In Dicey's view, inherent in discretion is the possibility
of it being used in an arbitrary manner and will be open to abuses.

If retrospective penal law is imposed, the individual will be placed in the position where his
conduct was lawful at the time of his action but, subsequently held to be unlawful.

The court has always construed penal statutes narrowly and will be slow to find that
Parliament intended to impose retrospective liability. If the Act of Parliament is expressed in
language which is fairly capable of either interpretation, then the court would elect to
construe it as prospective only.

In Waddington v Miah (1974), the House of Lords interpreted the Immigration Act 1971 to
disallow it having a retrospective effect using Article 7 of ECHR, which guarantees freedom
from retrospective application of laws.

2) Equality before the law

Dicey emphasise the notion that government itself is also subjected to law and that everyone
shall be subjected to the law, irrespective of rank and positions. In the words Lord Denning
in Gouriet: "Be ye ever so high, the law is above thee."

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The idea of equality before the law is subjected to so many exceptions. In so far as equal
powers are concerned, it must be recognised that the police have powers over and above
ordinary citizen (under common law). Ministers also do have power to enact delegated
legislation and the government exercises prerogative powers. Members of Parliament have
immunities not available to citizen. In the words of Sir Ivor Jennings, ‘No two citizens are
entirely equal.’

The constitutional principle of the rule of law serves to bridge the gap between the legal
doctrines of parliamentary sovereignty and the political sovereignty of the people ... The rule
of law therefore assists in preventing the subversion of the sovereignty of the people by
manipulating the legal sovereignty of Parliament.

The evidence for the notion of equality before the law is neither clear nor uncontentious.
There remains room for doubt and arguments.

3) The protection of rights under Common law

Dicey laid great emphasis on government by law, rather than by men.

Dicey's preference demonstrates a faith in the judiciary. In his view, the constitution is
pervaded by the rule of law on the ground that the general principles of the constitution (e.g.
the rights to personal liberty and the rights of a fair trial) are the result of judicial decisions.

It is essential to recognise that Dicey was writing from a particular political perspective. He
was a committed believer of free market operations and was opposed to any increase in State
activity that would regulate the economy. Thus, the third limb of Dicey may look
unsustainable nowadays. In the UK, for example, the enactment of the Human Rights Act
1998, which incorporated rights protected under the ECHR included the obligations of the
government to respect human rights.

7.2.2 Essential characteristic of the rule of law

While there is no set definition of the rule of law encompassing all its practices, there is a
basic realm of common principles as to what the rule of law entails. For example, Rachel
Kleinfeld Belton identifies five common principles of the rule of law:

(i) A government bound by and ruled by law;

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(ii) Equality before the law;

(iii) The establishment of law and order;

(iv) The efficient and predictable application of justice; and

(v) The protection of human rights.

Belton also identifies a second definition for the rule of law that is based on the institutions
or instruments by which the ends of rule of law are achieved. These include:

(i) The existence of comprehensive laws or a constitution based on popular consent;

(ii) A functioning judicial system;

(iii) Established law enforcement agencies with well-trained officers.

The influential political theorist Joseph Raz, for his part, in his work ‘The Rule of Law and
Its Virtue,’ (The Law Quarterly Review, volume 93, 1977 pg. 195) identified several
principles that may be associated with the rule of law:

(i) That laws should be prospective rather than retroactive;

(ii) Laws should be stable and not changed too frequently, as lack of awareness of the
law prevents one from being guided by it;

(iii) There should be clear rules and procedures for making laws;

(iv) The independence of the judiciary has to be guaranteed;

(v) The principles of natural justice should be observed, particularly those concerning
the right to a fair hearing;

(vi) The courts should have the power of judicial review over the way in which the other
principles are implemented;

(vii) The courts should be accessible; no man may be denied justice;

(viii) The discretion of law enforcement and crime prevention agencies should not be
allowed to pervert the law.

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According to Raz, the validity of these principles depends upon the particular circumstances
of different societies, whereas the rule of law generally “is not to be confused with
democracy, justice, equality (before the law or otherwise), human rights of any kind or
respect for persons or for the dignity of man”.

Constitutionalism
This refers to the idea that the conduct of the government and the exercise of state power
should be limited according to certain established and enforceable rules. This concept has to
do with the degree to which the constitution functions as a real limitation in reference to
which a state is administered. It is, therefore, possible to have a Constitution without actual
constitutionalism.

The factors to consider while assessing constitutionalism are:

(i) Does the constitution or the law impose any limits to the power of the state?

(ii) Is the constitution hierarchically superior to other legal norms?

(iii) What is the degree of entrenchment of the constitution, i.e., can it be easily be
amended?

(iv) What degree of separation of powers exits?

According to De Smith:

Constitutionalism is practiced in a country where the government is genuinely

accountable to an entity or organ distinct from itself, where elections are freely held on
a wide franchise at frequent intervals and where political groups are free to organize and
to campaign in as well as immediately before elections with a view of representing
themselves as an alternative government and where there are legal guarantees of basic
liberties and enforced by an independent judiciary.
The core elements of constitutionalism include:

(i) The recognition and protection of fundamental rights and freedoms;

(ii) Separation of power;

(iii) An independent judiciary;

(iv) The review of constitutionality of law; and

(v) The control of the amendment of the Constitution.

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In countries where there exists a written Constitution, the Constitution invariably enjoys a
superior position within the legal framework through its entrenchment and constitutionalism
is protected by ensuring that the key tenets enshrined within the principles enjoy a higher
level of protection. The Constitution is regarded as the first law within which framework of
details of written rules and practices have to be laid out. The theory behind the supremacy of
the Constitution is that it the Constitution embodies a contract between the governor and the
governed and therefore the Constitution must not be altered in the same manner as ordinary
legislation. The constitution is the product of the exercise of the constituent power in the
people and it is from it that all the other legislation or laws derive their authority.

In the Kenyan context, the concept of the supremacy of the Constitution is captured under
article 2 of the Constitution, similar to section 3 of the repealed Constitution. It is provided
that, “The Constitution is the supreme law of the Republic and binds all persons and all State
organs at both levels of government; No person may claim or exercise State authority except
as authorised under the Constitution.

(i) The validity or legality of this Constitution is not subject to challenge by or before
any court or other State organ; (ii) and any law, including customary law that is
inconsistent with this Constitution is void to the extent of the inconsistency, and any act
or omission in contravention of the Constitution is invalid.
Section 47 of the repealed Constitution was concerned with the procedure of amendment and
provided under subsection 2:

A Bill or an Act of Parliament to alter this Constitution shall not be passed by the
National Assembly unless it has been supported on the second and third readings by the
votes of not less than 65% of all the members of the Assembly (excluding ex-officio
members).
Currently, the constitution in Chapter Sixteen provides the procedure for its amendment.
Whereas article 256 provides for amendment by Parliamentary Initiative, art 257 talks of
amendment by Popular Initiative. Furthermore, some amendments can only be made through
a referendum.

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Separation of Power and the Concept Checks and Balances
7.4.1 Introduction
The separation of powers is a constitutional principle designed to ensure that the functions,
personnel and powers of the major institutions of the state are not concentrated in any one
body. It ensures diffusion rather than a concentration of power within the state.

There is no strict separation of powers under our Constitution. Instead, while some separation
of powers exists, it is more accurate to speak of a system of checks and balances which
ensures that powers are not abused.

7.4.2 The Principle of Separation of Powers

The fundamental purpose of the separation of powers is to avoid the abuse of power and
thereby to protect the rights and liberties of citizens.

The concept itself is of great antiquity and can be attributed to Aristotle (384–322 BC);
however, the clearest exposition of the doctrine can be found in the French writer Charles-
Louis de Montesquieu’s De l’esprit des lois (1748). In essence, Montesquieu states that the
three organs of government – the executive, legislature and judiciary – should each have a
discrete and defined area of power and that there should be a clear demarcation of functions
between them: this is true ‘separation of powers’.

Under a written constitution, the powers allocated to various institutions will be clearly
defined. It should however be noted that even under a written constitution a complete
separation of powers is not possible, and that without some degree of interaction between the
institutions there would be constitutional deadlock. For the purpose of analysis, the subject
may thus be broken down by considering the extent to which the executive and legislature,
executive and judiciary, and judiciary and legislature overlap and interact.

Under this doctrine, it is argued that Government organs must be separated to ensure proper
and easy functioning of state duties. The organs of the state will include executive, legislature
and judiciary. They are supposed to be clearly defined. Their powers and duties should be
clearly spelt. They should be autonomous without guidance from outside.

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The aim of separation of powers is to prevent the abuse of public power through the
concentration of power. Thus James Madison in Federalist 47:

The accumulation of all powers, legislative, executive and judiciary, in the same hands,
whether of one, a few, or many, and whether hereditary, self-appointed or elective, may
justly be pronounced the very definition of tyranny.
The other aim is to enhance the efficiency of government.

Separation of powers entails:

(i) Separation of functions: The powers of any one branch should be exercised solely
and absolutely by that branch and not the other two. This means that the executive
must not perform the functions of the legislature or the judiciary performing the
functions of the executive. The legislature has the duty of making new law and
amending existing law. The judiciary settles disputes between individual citizens
and between the individual citizens and the state. While the executive carries out
ordinary administration of the state.

(ii) Autonomy and independence: That one branch should never be controlled and/or
interfered with in the exercise of its powers.

(iii) Separation of persons: That the same persons should not form or be part of more
than one of the three branches of the Government. This means that the same people
should not occupy the legislature, judiciary and the executive at the same time even
if these bodies would be said to exist separately.

In Kenya the totality of governmental process fall into three broad divisions

(i) Legislative (law-making);

(ii) Executive; and

(iii) Adjudicative.

7.4.3 Weaknesses and Criticisms of the Doctrine of Separation of Power

Montesquie’s theory of separation of powers has been subject to attack on the grounds that:

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(i) The Government is an organic body, which cannot be separated into compartments.
In practice, each organ needs assistance of the others. Complete separation of
organs of Government is therefore practically impossible.

(ii) Absolute separation would be undesirable because there would entail a spirit of
competition and not co-operation within the Government resulting in clashes and
deadlocks. Functioning of the Government in a proper way demands some co-
existence and harmonious collaboration between the three organs. Separation of
powers is, therefore, necessary only to the extent that it provides specialization of
functions, division of labour and efficiency.

(iii) The advocates of the theory were under the belief that the enjoyment of an
individual’s rights depended solely on the separation of powers, but this is not the
case as there are other determinant factors such as rule of law, constitutionalism,
etc. Separation of powers alone does not guarantee personal rights and freedoms.
The separation of powers theory does not also guarantee absence of arbitrary rule
because the legislature may pass oppressive laws.

(iv) There is the assumption that all the 3 arms of Government are equally important.
For example the legislature can pass laws, which they do not repeal even if the
judiciary declares that they offend the Constitution.

If the theory is taken to its logical conclusions there would be some undesirable results.

7.4.4 Checks and Balances

Instead of absolute separation of powers, our constitutional system adopts a notion of checks
and balances where the powers of one branch can be challenged by another branch. This is
what the system of checks and balances is all about. Each branch has an effect on the other.
The following examples, which are not exhaustive, can be given.

1) Legislative Branch
a) Checks on the Executive

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 Impeachment power: Both the National Assembly and the Senate participate in the
removal of the President and the Deputy President (art 145). Trial of impeachments
is done by the Senate while the resolution is by the National Assembly.

 National Assembly approves departmental appointments by the President: The Chief

Justice, Diplomats, and Cabinet Secretaries etc.

 National Assembly approves treaties.

 National Assembly approves the exercise of the power to declare war.

 President must deliver annual address to Parliament.

b) Checks on the Judiciary

 National Assembly approves the appointment of the Chief Justice and Supreme Court
Judges.

 National Assembly has power to set jurisdiction of courts.

2) Executive Branch
a) Checks on the Legislature

 President can veto a Bill passed by Parliament.

b) Checks on the Judiciary

 Power to appoint Chief Justice and Judges of the Supreme Court; and

 Pardon power.

3) Judicial Branch
a) Checks on the Legislature

 Declaration of statutes as unconstitutional

The Supreme Court of Kenya stated in Speaker of the Senate and Another v Attorney-
General and 4 Others, “… as a legal and constitutional principle…Courts have the
competence to pronounce on the compliance of a legislative body, with the processes for the
passing of legislation.” It clarified this position by explaining that the court:

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…will not question each and every procedural infraction that may occur in either of the
Houses of Parliament. The Court cannot supervise the workings of Parliament. The
institutional comity between the three arms of government must not be endangered by
unwarranted intrusions into the workings of one arm by another.”
Hence,

No arm of government holds a position superior to the terms of the law: for in a
constitutional democracy, it is the people’s will, as expressed in the due operation of all
dimensions of the Constitution that must guide the functioning of the organs of state.”
 Decide on election petition; and

 Decide on vacation of office.

b) Checks on the Executive

 Judicial review; and

 Supreme Court settles presidential election disputes.

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Session 9
RULE OF INTEPRETATION/CONSTRUCTION OF
STATUTES
Approaches to Interpretation
Although the common law legal system is referred to as being based on judge made law, it
is statutory law which is increasingly at the centre of the system. Whereas the primary source
of law within the common law system is unwritten law, written law has since medieval times
been seen as a technique used to strengthen, interpret regulate or amend the common law.

Once a piece of legislation has been passed by Parliament and thereafter received the
presidential assent, it enters the statute books and will be implemented by the relevant arm
of government. Questions may however arise about the scope, meaning and applicability of
legislation to particular factual situations. This is when the judiciary is usually called upon
to interpret the statutes.

Therefore, whereas it is common place to say that the creation of law is the role of parliament,
the function of interpretation leaves the judiciary with a considerable degree of latitude in
determining what that legislation is.

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 favour 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.

Some of the approaches taken by judges include:

8.1.1 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.

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8.1.2 Social Approach
This theory advocates a view of judge as a social engineer and therefore in interpreting statue
the judge must endeavour to discuss and give effect to the social utility or good intended to
be achieved by the particular statute.

8.1.3 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.

8.1.4 Purposive approach

The purposive approach is one that will “promote the general legislative purpose underlying
the provisions” (per Lord Denning MR in Notham v London Borough of Barnet [1978] 1
WLR 220). There will be a comparison of readings of the provision in question based on the
literal or grammatical meaning of words with readings based on a purposive approach.

In Pepper (Inspector of Taxes) v. Hart [1993] AC 593, Lord Browne-Wilkinson referred to

“the purposive approach to construction now adopted by the courts in order to give effect to
the true intentions of the legislature.”

The advantages of the purposive approach is it gives effect to the true intentions of
Parliament. However, it is criticised on the ground that it can only be used if a judge can find
Parliament’s intention in the statute or parliamentary material. Otherwise, judges can
“rewrite” statutes, which only Parliament is allowed to do.

8.1.5 The Contextual Approach

Sir Rupert Cross, Statutory Interpretation (3rd edn, 1995) suggested that there was an
integrated approach to interpretation:

The judge begins by using the grammatical and ordinary or technical meaning of the
context of the statute; if this produces an absurd result then the judge may apply any
secondary meaning possible; the judge may imply words into the statute or alter or
ignore words to prevent a provision from being unintelligible, unworkable or absurd; in
applying these rules the judge may resort to various aids and presumptions.

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Non-Statutory Aid
These entail rules of interpretation and presumption that the courts use to construe statutes.
The part that follows will cover the primary and secondary/subsidiary rules of interpretation.

Primary Rules of Interpretation of Statutes

 Literal Rule,
 Golden Rule,
 Mischief Rule
8.3.1 The Literal Rule
This rule is also referred to as the “plain meaning rule.” By the literal rule, words in statute
must be given their plain, ordinary or literal meaning. The objective of the court is to discover
the intention of Parliament as expressed in the words used. This approach will be used even
if it produces absurdity or hardship, in which case the remedy is for Parliament to pass an
amending statute.

One of the leading statements of the literal rule was made by Tindal CJ in the Sussex Peerage
Case (1844) 11 Olefin 85:

The only rule for the construction of Acts of Parliament is, that they should be construed
according to the intent of the Parliament which passed the Act. If the words of the statute
are in themselves precise and unambiguous, then no more can be necessary than to
expound those words in their natural and ordinary sense. The words themselves alone
do, in such case, best declare the intention of the lawgiver.
Lord Esher in R v Judge of the City of London Court [1892] 1 QB 273 said:

If the words of an Act are clear then you must follow them even though they lead to a
manifest absurdity. The court has nothing to do with the question whether the legislature
has committed an absurdity.
In Whitely v. Chappell (1869), the defendant had voted in the name of a person who had
died, but was found not guilty of the offence of personating ‘any person entitled to vote’: a
dead person is not entitled to vote.

In The Matter of Advisory Opinion of the Court under Art 163 of the Constitution, The
Supreme Court of Kenya stated:

A court may not arrogate to itself jurisdiction through the craft of interpretation or by
way of endeavours to discern or interpret the intention of Parliament, where the
legislation is clear and there is no ambiguity.

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a) Advantages of the Literal Rule
(i) It encourages draftsmen to be precise.

(ii) It respects the words used by Parliament.

(iii) It prevents judges “rewriting” statute law, which only Parliament can do.

(iv) Alternative approaches would make it difficult to predict how doubtful provisions
might be “rewritten” by judges.

Judges have tended excessively to emphasis the literal meaning of statutory provisions
without giving due weight to their meaning in wider contexts.

b) Criticism of the Literal Rule

(i) It assumes that parliamentary draftsmen are perfect.

(ii) It ignores the limitations of language.

(iii) It can lead to absurd or harsh decisions and Parliament has to pass an amending
statute.

8.3.2 The Golden Rule

The golden rule provides that if the words used are ambiguous the court should adopt an
interpretation which avoids an absurd result.

Where the meaning of words in a statute, if strictly applied, would lead to an absurdity, the
golden rule is that the courts are entitled to assume that Parliament did not intend such
absurdity, and they will construe the Act to give it the meaning which Parliament intended.

In Grey v Pearson (1857) 6 HL Cas 61, Lord Wensleydale said:

The grammatical and ordinary sense of the words is to be adhered to, unless that would
lead to some absurdity, or some repugnance or inconsistency with the rest of the
instrument, in which case the grammatical and ordinary sense of the words may be
modified, so as to avoid that absurdity and inconsistency, but no farther.
This became known as “Lord Wensleydale’s golden rule”. In its second, broader sense, the
court may modify the reading of words in order to avoid a repugnant situation as in Re
Sigsworth (1935).

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So, for example, the Offences against the Person Act 1861, provided that “whosoever being
married shall marry another person during the life of the former husband or wife” is guilty
of bigamy. Interpreted literally, this definition is absurd on two counts:

(i) The phrase ‘shall marry another person’ is meaningless in the context, as the essence
of bigamy is that a married person cannot marry again while his first marriage
subsists.

(ii) The reference to a ‘former’ husband or wife is quite inappropriate. The word ‘former’
suggests that the original marriage no longer exists, but if that were the case the
person marrying again would not be guilty of bigamy.

Despite the slipshod draftsmanship of the Act, however, the intention was clear, and the
courts have interpreted the relevant section as meaning that a person who purports to marry
another while his or wife or husband is still alive is guilty of bigamy.

a) Advantages of the Golden Rule

(i) It allows judges to avoid absurd or harsh results which would be produced by a
literal reading.

(ii) It allows judges to avoid repugnant situations, as in Re Sigsworth.

b) Criticism of the Golden Rule

(i) There is no clear way to test the existence of absurdity, inconsistency or
inconvenience, or to measure their quality or extent.

(ii) Judges can “rewrite” statute law, which only Parliament is allowed to do.

8.3.3 The Mischief Rule

The main aim of the rule 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.

The Mischief Rule is a rule of construction that judges can apply in statutory interpretation
in order to discover Parliament's intention. In applying the rule, the court is essentially asking
the question: what was the “mischief” that the previous law did not cover, which Parliament
was seeking to remedy when it passed the law now being reviewed by the court?

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The rule was first set out in Heydon’s Case [1584]76 ER 637, and allows the court to look
at the state of the former law in order to discover the mischief in it which the present statute
was designed to remedy. According to the Court:

For the sure and true interpretation of all statutes in general (be they penal or
beneficial, restrictive or enlarging of the common law), four things are to be
discerned and considered:
(i) What was the common law before the making of the Act?
(ii) What was the mischief and defect for which the common law did
not provide?
(iii) What remedy the Parliament hath resolved and appointed to cure
the disease of the commonwealth. And,
(iv) The true reason of the remedy.
And then 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 privato commodo, 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.
In Smith v. Hughes, for example, the Street Offences Act 1959 made it an offence for a
prostitute to solicit men ‘in a street or public place.’ The question was whether a woman who
had tapped on a balcony and hissed at men passing by was guilty of an offence under the
Act. Parker, L.C.J., found her guilty:

I approach the matter by considering what is the mischief aimed at by this Act.
Everybody knows that this was an Act intended to clean up the streets, to enable people
to walk along the streets without being molested or solicited by common prostitutes.
Viewed in that way, it can matter little whether the prostitute is soliciting while in the
street or standing in a doorway or on a balcony.
In the case mentioned, it was comparatively easy to apply the mischief rule as the
circumstances which caused the passing of the Act were well known.

c) Advantages of Mischief Rule

(i) Some view the Mischief Rule as the best method of interpretation of laws. The Law
Commission in England sees it as a far more satisfactory way of interpreting acts as
opposed to the Golden or Literal rules.

(ii) It usually avoids unjust or absurd results in sentencing;

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(iii) It abides the rule that it is Parliament that makes law but the legislature interprets
the same.

(iv) It allows judges to put into effect the remedy Parliament chose to cure a problem in
the common law.

d) Criticism of the mischief Rule

(i) It is seen 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.

(ii) It gives too much power to the unelected judiciary which is argued to be
undemocratic.

(iii) 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. This
is not often the case in modern legal systems.

(iv) The rule can make the law uncertain, susceptible to the slippery slope.

Rules of Language
8.4.1 Ejusdem generis
This Latin word means ‘of the same kinds, class, or nature’.

When a list of two or more specific descriptors is 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.

For example, where "cars, motor bikes, and motor powered vehicles" are mentioned, the
word "vehicles" would be interpreted in a limited sense (therefore vehicles cannot be
interpreted as including airplanes).

When the Sunday Observance Act, 1677, provided that no “tradesman, artificer, workman,
labourer or other person whatsoever” should do certain things, the general phrase “other
person whatsoever” was held to refer only “persons within the class indicated by previous
particular words’ and not, therefore, to include such persons as farmers or barbers”.

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This rule reflects an attempt “to reconcile incompatibility between the specific and general
words in view of the other rules of interpretation that all words in a statute are given effect if
possible, that a statute is to be construed as a whole and that no words in a statute are
presumed to be superfluous” (Tribhuwan Prakash Nayyar v. Union of India, AIR 1970 SC
540).

The Supreme Court of India in Amar Chandra v. Collector of Excise, Tripura (AIR 1972
SC) held that this rule applies 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 terms follow the enumeration;

 There is no indication of a different legislative intent.

8.4.2 Noscitur a sociis

The Latin phrase means ‘known from associates’. The rule is that the meaning of an unclear
word or phrase is to be determined on the basis of the words or phrases surrounding it.

In Bourne v. Norwich Crematorium Ltd. (1967), Stamp J. put it thus:

Sentences are not mere collections of words to be taken out of the sentence, defined
separately by reference to the dictionary or decided cases, and then put back into the
sentence with the meaning you have assigned to them as separate words...
In Foster v. Diphwys Casson (1887) 18 QBD 428, the matter 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 was referring to a case or container of the same strength as a
canister.

In Muir v. 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

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night being supplied with cigars, coffee, beers 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.

8.4.3 Expressio unius Rule

This Latin words mean ‘the express mention of one thing is the exclusion of another,’ and
the rule is commonly expressed in the short form as ‘Expressio unius Rule’.

The rule means that the expression of one thing is the exclusion of another. The rule arises
from the argument that if the legislature had meant to include a particular thing within the
ambit of its legislation it would have referred to that thing expressly. The legislature's failure
to mention the thing becomes grounds for inferring that it was deliberately excluded.
Although there is no express exclusion, exclusion is implied.

When one or more things of a class are expressly mentioned others of the same class are
excluded. 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.

Legal Presumptions
This is a non-statutory aid to the interpretation of Statutes. In their attempt to construe
statutes, courts of law are guided by certain presumptions which include:

 The statute was not intended to change or alter the common law - Even though many
statutes have that express intention which will be followed. But unless express
provision is made, or the new law is irreconcilable with the statute or common law;

 There is a presumption against excluding the court from determining the case;

 There is a presumption that standard common law defences are available for new
crimes, e.g., duress, self-defence, etc.

 The Statute was not intended to affect the statutes – e.g. where the rules on health &
safety did not apply to NHS kitchens;

 Presumption that mens rea (guilty mind) is required for criminal offences;

 The statute was not intended to interfere with vested rights of individuals;

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 The statute was not intended to impose liability without fault;

 The statute was not intended to have extra-territorial effect;

 The statute was not intended to be inconsistent with international law;

 An accused person is presumed innocent until proven or has pleaded guilty

 All un-repealed statutes remain law.

In prince of Hanover v. Attorney general, all issue of the person were British citizens, the
law was un-repealed, so it was still law that applied to a person with whose country we were
at war.

 There is a presumption of compensation being paid where a statute deprives a person

of property;

 There is a presumption of not granting officials arbitrary discretion;

 There is a presumption that Acts do not interfere with rights to private property;

 There is a presumption against retrospective legislation;

 Penal laws should be construed in favour of the person whose liberty is threatened.

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Session 10
AID TO INTERRETATION OF STATUTES
Intrinsic aid to Interpretation of Statutes
These are means which are available in the statute itself to assist in understanding of
legislation. They are outlined and discussed below.

8.6.1 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.

8.6.2 The definition of terms implied by the rest of the Act: the ‘context
rule’.
This closely relates to the rule that the statute must be read as a whole. According to
Halsbury’s Laws of England, 4th edition, Butterworths 1995, Vol 44(1), Para 1484;

It is one of the linguistic canons applicable to the construction of legislation that an Act
is to be read as a whole, so that an enactment within it is to be treated not as standing
alone but as falling to be interpreted in its context as part of the Act. The essence of
construction as a whole is that it enables the interpreter to perceive that a proposition in
one part of the Act is by implication modified by another provision elsewhere in the
Act…
In Amalgamated Society of Engineers v Adelaide Steamship,21 Higgins J rightly observed
thus,

The fundamental rule of interpretation, to which all others are subordinate, is that a
statute is to be expounded according to the intent of the Parliament that made it; and that
intention has to be found by an examination of the language used in the statute as a
whole. The question is, what does the language mean; and when we find what the
language means, in its ordinary and natural sense, it is our duty to obey that meaning,
even if we consider the result to be inconvenient or impolitic or improbable.
In Jesse Waweru Wahome and Others v. Kenya Engineers Registration Board and others,22
where Engineering Graduates from Masinde Muliro University and Egerton University

21
(1920) 28 CLR 129 at 161-2.
22
PETITION NO. 149 OF 2011 consolidated with PETITION NO. 207 OF 2011.

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Challenged the refusal by the Engineers Registration Board to register them as trained
engineers, the Court observed:

Statutory construction is a holistic endeavour and the cardinal rule of construction is that
a statute should be read as a harmonious whole, with its various parts being interpreted
within their broader statutory context in a manner that furthers statutory purposes.
8.6.3 Headings and Side-notes
These have minimal utility as they are included there by drafters who are not responsible for
law-making.

8.6.4 The short title

This is used for ease of reference and only has minimal aid to interpretation.

8.6.5 The long title and preamble

Many Acts have preambles, and all Private Acts and all old Public Acts have long titles, but
they cannot prevail over clear enacting words. For example, in Fisher v Raven 1964, the
long title was used to decide that debtors for the purposes of Act were ordinary debtors.

Extrinsic Aid to Interpretation of Statutes

8.7.1 Other statutes
e) 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.

In Hutton v. Esher UDC 1973 the question was: ‘Could "land" include buildings for the
purposes of compulsory purchase?’ The Interpretation Act (which is similar in purpose to
the Interpretation and General Provisions Act in Kenya) said that land included buildings
unless stated otherwise, so the buildings were purchased.

f) Earlier statutes
A rule was laid down by Lord Mansfield in R v Loxdale that: "Where there are different
statutes in pari materia (that is which deals with the same person, thing or class as the one

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being dealt with) though made at different times, or even expired and not referring to each
other, they shall be taken and construed together as one system and as explanatory of each
other" It is proper to refer to earlier Acts in pari materia only where there is ambiguity.

g) Consolidation Acts
These are Acts which bring together in one Act the statutory provisions relating to a particular
topic without any changes in the law and are not subject to amendment in their passage
through Parliament.

In I.R.C. v Joiner, Lord Diplock stated that:

"it is only where the language of the consolidation Act itself is ambiguous that it is legitimate
to have recourse to the repealed enactments to see if their meaning is clearer, and, if it is, to
resolve the ambiguity in the consolidation Act by ascribing to its language whichever of the
alternative meanings would not effect a change in the previously existing law. What cannot
ever be legitimate is to have recourse to the repealed enactments to make obscure and
ambiguous that which is clear in the consolidation Act".

This principle was confirmed in Farrell v Alexander. This is summarised in the headnote:
"when the words of a consolidation Act are clear, the court in construing it should treat it as
standing on its own feet and it is not necessary to examine its legislative antecedents".

In George Hensher Ltd v Restawile Upholstery (Lancs.) Ltd. [1976] AC 64 Lord Simon of
Glaisdale indicated that there might be one other rare situation where the court can construe
a consolidation Act by reference to a consolidated enactment. "This is where the purpose of
a statutory word or phrase can only be grasped by examination of the social context in which
it was first used".

8.7.2 Law Commission Reports and White Papers

In England, these have been admissible since the case of Davis v. Johnson [1978] AC 264,
which said that the report may be used to identify the mischief the legislation is intended to
remedy but not to construe the enacting words’ and other travaux préparatoires provided
that it is material in the public domain clearly intended to be the first stage in the legislative
process. If the document is a treaty, a literal construction is in conflict with the purpose of

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the treaty, or if the legislation is ambiguous (Fothergill v. Monarch Airlines Ltd. [1980] 3
WLR 209).

8.7.3 Hansard
Hansard has been officially used (judges used it before this case unofficially) since the case
of Pepper v. Hart, in which the question was whether the taxable benefit of providing the
children of teachers with free education should be taxed at the nominal extra cost to the
school, or at the normal cost of the school's fees. It was decided using Hansard that it should
be taxed at the lower cost.

In this case it was said that if Hansard "clearly discloses the mischief aimed at or the
legislative intention lying behind the ambiguous or obscure words", then it is an admissible
aid to construction.

However, it was said that ‘I cannot foresee any statement other than the statement of the
minister or other promoter of the Bill is likely to meet the criteria’.

In addition it was said that ‘if a minister clearly states the effect of a provision and there is
no subsequent relevant amendment to the Bill or withdrawal of the statement it is reasonable
to assume that Parliament passed the Bill on the basis the provision would have the stated
effect.’

Hansard is, of course, not binding on the courts - there is no reason why they should not
ignore the intent of Parliament unless it is expressed in a statute. Hansard has the same legal
status as any other interpretative aid.

The question arises whether Pepper v. Hart affects stare decisis, that is to say whether a
court can overrule an otherwise binding case on the basis of Hansard showing that the
previous construction was wrong. If this question were to be answered in the affirmative,
magistrates’ courts could overrule the House of Lords.

Common sense might suggest that incorrect interpretations should be overruled, but there is
the issue of separation of powers - according to the traditional doctrine of the separation of
powers the judiciary must be free to reject the Hansard material, since it is nothing more than
an interpretative aid, which were it to be binding, would make Parliament both legislator and

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interpreter: legislation has traditionally been seen as an abstract document not tailored to
particular situations, but rather being a list of abstract principles interpreted and applied in
individual cases by the judiciary; Taken this way, to give Hansard such as status would
apparently contravene HA Hayek's conception of the rule of law.

8.7.4 Dictionaries
Dictionaries are for consultation "in the absence of any judicial guidance or authority" per
the decision in Kerr v Kennedy [1942] 1 KB 409.

In R v Peters [1886] 16 QBD 636, at 641, Lord Coleridge held that Dictionaries "are not to
be taken as authoritative exponents of the meanings of words used in Acts of Parliament, but
it is a well-known rule of courts of law that words should be taken to be used in their ordinary
sense, and we are therefore sent for instructions to these books".

In a tax case, C.O.R. v Asia Television Ltd, Hong Kong Tax Cases, vol 2, (1986), the High
Court in interpreting the relevant words of the revenue statute, looked at three different
English dictionaries.

8.7.5 Legal Textbooks

Textbooks may be used as an aid to construction of a statute. However the court "would
never hesitate to disagree with a statement in the textbook, however authoritative, or however
long it had stood, if it thought it right to do so” as was held in Bastin v Davies [1950] 2 KB
579.

In Letang v Cooper [1965] 1 QB 232, at 240, Lord Denning criticized the text-writers as
being in error, as they had been influenced by the recommendations of the Tucker
Committee's Report on the Limitation of Actions.

8.7.6 Treaties
This is so especially where the law was intended to enact the treaty. This is also now found
under art 2 of the Constitution of Kenya (2010).

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8.7.7 Explanatory memoranda
An explanatory memorandum is a document which summarises the subject matter of a Bill.
It is prepared primarily for the information of members of Parliament, though it is available
to the public for sale, with the Bill.

However, it does not accompany an Act or Ordinance. There can also be explanatory material
prepared by a Government Department, after a Bill is enacted, such as a circular, or pamphlet.

Lord Denning, in Escoigne Properties Ltd. v I.L.C.77 confirmed the principle that the courts
do not refer to the explanatory memorandum. In Inglis v British Airport Authority, the
tribunal refused to use a departmental memorandum to construe the Lands Compensation
(Scotland) Act 1973 (Cap 56). The tribunal said the memorandum "cannot provide a gloss
on the actual words used by Parliament nor can it be used by a judicial tribunal as and aid to
construing the wording of a statute or as a guide to the intentions of Parliament". However,
this was an explanatory memorandum subsequently issued by the department, and not one
which had been before the legislature.

In Ealing London Borough Council v Race Relations Board, Lord Simon rejected reference
to what he called the legislative history of a statute, including drafts of Bills, heads of
instructions to the draftsman, departmental papers and minutes of executive committees.
However, he was prepared to allow access to explanatory memoranda accompanying a
complicated measure, such as those explaining statutory instruments.

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Session 11
ALTERNATIVE DISPUTE RESOLUTION PROCESSES
Introduction
Alternative dispute resolution method commonly referred to ADR according to Justice
Nyamu mean dispute resolution methods other than litigation and these include mediation,
early neutral evaluation, mini-trial, expert determination adjudication and arbitration.

Article 159(2)(c) of the constitution states that “in exercising judicial authority, the courts
and tribunals shall be guided by the following principle: alternative forms of dispute
resolution including reconciliation, mediation, arbitration and traditional mechanisms shall
be promoted.”

Alternative dispute resolution is also catered for under section 59A of the Civil Procedure
Act and order 45A of the Civil Procedure Rules. All mediated agreements may be registered
and enforced by the court under section 59D of the Civil Procedure subject to availability of
mediators.

The Chief Justice speech on the same during presentation of the Progress Report in the
Transformation of the Judiciary the need of Kenyans to engage ADR as means of dispute
resolution said that:

I would like to point out that the Judiciary will not change until those who serve in it
and the public change their attitude and behaviour. When we say that judicial authority
is derived from the people the implication is that the people should be law abiding –
make use of other fora of justice such as family, churches and mosques and other
alternative dispute resolution mechanisms because court actions are, in their very nature,
adversarial. Kenyans must see themselves as the change they wish to see in the Judiciary.
Advantages and Disadvantages of ADR
9.2.1 Advantages
Alternative dispute resolution methods have the following advantages over court litigation:

(i) Speedy Dispute Resolution: - ADR is often quicker than going to trial; a dispute may
be resolved in a matter of days or weeks instead of months or years. Litigation
through courts takes a lot of time. There are incidents where the cases have taken a
long period of time leaving the parties frustrated lot.

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(ii) Cost Effectiveness: - ADR is often less expensive, saving the litigants court costs,
attorney's fees and expert fees. Litigation through courts is very expensive. Most
parties cannot pay the court fees and there alternative dispute resolution gives them
an alternative way of conflict resolution that is pocket friendly.
(iii) Control of the Outcome and Proceedings: - Alternative dispute resolution allows
more participation and empowerment, allowing the parties the opportunity to tell their
side of the story and have more control over the outcome.
(iv) Flexibility of Procedures: - Alternative dispute permits the parties in choice of ADR
processes and resolution of the dispute. Court litigation is sometimes too rigid
requiring parties to follow the laid down procedures.
(v) Enhanced Cooperation: - These methods of dispute resolution allow the parties to
work together with the neutral to resolve the dispute and mutually agree to a remedy.
The court process is adversarial and fails to propagate harmonious co-existence.
(vi) Less Degree Involvement: - Alternative dispute resolution methods are often less
stressful than litigation.
(vii) Saves Courts Time: - An alternative dispute resolution method frees courts time to
handle major cases and this helps in fast delivery of justice.
(viii) Enhance Confidentiality: - Court cases, judgments and opinions are usually public
record; the ADR process is confidential. If the parties settle through mediation or
arbitration, no public record exists of what developed at the negotiation meetings or
of the amount of the settlement.
(ix) Customized Dispute Resolution: - International disputes can be resolved according to
ground rules the parties agree upon in advance, thereby avoiding the uncertainty
inherent in being subjected to the jurisdiction of foreign courts.
(x) Less Work Place Distractions: - Workplace distractions and the emotional burdens
imposed on the individuals involved in litigation, especially in employer-employee
disputes, are minimized.

9.2.2 Limitation of ADR

However, alternative dispute resolution has some limitations namely: -

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(i) ADR may not be effective if it takes place before the parties have sufficient
information to resolve the dispute,
(ii) The neutral may charge a fee for his or her services.
(iii)If the dispute is not resolved through ADR, the parties may then have to face the
usual and traditional costs, such as attorney's fees and expert fees, lawsuits must be
brought within specified periods of time, known as Statutes of Limitations and Parties
must be careful not to let a Statute of Limitation run while a dispute is in an ADR
process.

Conclusion
In conclusion, the advantage of alternative dispute resolution methods outweighs the
litigation through court methods and should be encouraged. It greatly helps in the provision
of access to justice. The bill of small claims court is at a very advanced stage in parliament
and if it goes through, access to justice as a fundamental human would have achieved a
milestone. Other jurisdictions like Zimbabwe, small court claims are already in operation
and it has been very successful.

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Session 12
ACCESS TO JUSTICE IN KENYA
Introduction
Access to justice can be defined as the right of individuals and groups to obtain a quick,
effective and fair response to protect their rights prevent or solve disputes and control the
abuse of power, through a transparent and efficient process, in which mechanisms are
available, affordable and accountable. According to Jackline Martin (2007), access to justice
involves both an open system of justice and also being able to fund the costs of the case.

Historical Aspects of Access to Justice

Access to justice can be equated to the right to fair and speedy trial. This was recognized by
Magna Carta in 1202 where it was declared that “to no one will we sell, to no one will we
deny the right of justice.” The Americans impressed by it declared it in their bill of rights
that no person shall be deprived of life, liberty or property without due process of law and
that the accused shall enjoy the right to speedy trial.

The right to fair and speedy trial was subsequently recognized by the Universal Declaration
of Human Rights 1948, The United Nation Covenant on Civil and Political Rights 1966
article 9(3) and the African Charter on Human and people rights 1981 article 7(1). It,
therefore, means that the right to fair trial includes the right to speedy or trial within
reasonable time. Most constitutions worldwide now recognize the right to fair hearing within
a reasonable time.

In a democratic society as envisioned by Thomas Hobbes, where the governed relinquish a

portion of their autonomy, the legal system is the guardian against abuses by those in position
of power. Citizens agree to the limitations of their freedom in exchange for peaceful
coexistence and they expect that when conflicts between or between the state and citizens
arise, there is a place that is independent from undue influence, that is trustworthy and that
has authority over all the parties. The courts in any democratic system are the place of refuge.
Judiciary is primarily charged with administration of justice and protection of fundamental
human rights.

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Entails of Access to Justice
According to Tito (2011), traditionally access to justice embodied initially three components:

(i) That the rights-holders are aware of their legal rights and obligations and
understand the processes of enforcing these rights (legal awareness),
(ii) That the laws and policies are reflective of the peculiar needs and circumstances
of the poor, excluded or the marginalized, and
(iii) That there are institutions and structures in place through which the poor,
excluded or marginalized can enforce their rights.

Constitutional Underpinning of Access to Justice in Kenya

Access to justice in Kenya is guided by article 48 of the Constitution of 2010. This article,
“the State shall ensure access to justice for all persons, and if any fee is required, it shall be
reasonable and shall not impede access.”

In provision of justice the parties concerned should be accorded fair hearing under article 50
of the Constitution. Access to justice is, therefore, a fundamental right under the bill of rights
in Chapter Four.

The Constitution of 2010 recognizes the place of judiciary as an independent arm of the
government apart from the executive and the legislature. Right from article 3, the
Constitution vests sovereign power in of the people in the judiciary alongside other two arms
of the government. This is unlike the repealed Constitution.

Article 159 provides that that judicial authority is derived from the people and vests in and
shall be exercised by the courts and other tribunals established by or under the current
Constitution. Judicial independence is entrenched by article 160. The guiding principles
found under article 159 encapsulate the desire of and the will Kenyans hold for the courts.
They provide that justice shall be done to all irrespective of the status, that justice shall not
be delayed.

Alternative dispute resolution including reconciliation, mediation, arbitration and traditional

dispute resolution mechanisms shall be promoted, justice shall be administered without

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undue regard to procedural technicalities and the purpose and principles of the constitution
shall be protected and promoted.

Judiciary Transformation Framework

It is based on the above the Judiciary under the aspired to achieve. Under the stewardship of
Chief Justice Willy Mutunga, there were some achievements in addressing issues concerning
access to justice. In the Judiciary Transformation Framework document (2012-2016), access
to justice is given the first priority. The judiciary Transformation Framework document is
anchored on four distinct but interdependent pillars and ten overlapping key result areas
founded on the constitution, all these pillars have over overriding objective which is to
achieve access to and expeditious delivery of justice to all. The four pillars are people focused
delivery of justice, internal human resource capacity, infrastructure and resources and the
use of ICT as enabler.

When delivering a speech during the progress report presentation, the Chief Justice
acknowledges the weakness by judiciary by saying that “We found an institution so frail in
its structures; so thin on resources; so low on its confidence; so deficient in integrity; so weak
in its public support that to have expected it to deliver justice was to be wildly optimistic”.
But there are challenges. These challenges include:

Drawbacks on Access to Justice in Kenya

9.6.1 Lack of legal literacy and publicity
Legal literacy is still very thin among the Kenyans. Knowledge of law belongs to the legal
practitioners and a few educated elite. The ordinary 'Wanjiku' is disadvantaged and has
always being ignorant of the laws of the land and yet ignorance of law is no defence. The
efforts that are being done by the civil society and the government are very little. Kenyans
are not aware of their constitutional rights and as such these rights are still trampled upon.
Judiciary has for a long time remained an ivory tower. It has been aloof and separated from
people. This trend made people to have phobia about the judiciary. In fact there are three
places that people are said to fear to access because of the belief that when one goes to these
places their return is no guaranteed. These places are the hospital, the police station and the
courts. This perception has thrived due to lack of publicity about the judiciary.

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Attempt to inform the public about the judiciary were begun by the former Chief Justice
Evans Gicheru in what was called the judiciary open day. It did not succeed. To create public
awareness about the judiciary the current Chief Justice organized the Judiciary marches day
on 21st and 22nd, August 2012 in order to reach people. The theme of the marches day was
taking justice to people and on these particular days all the court staff including the judges
went out to meet people. They addressed people and there was question and answer sessions.
Earlier on before the marches the Chief Justice had said through the media that “For a long
time, the Judiciary had been isolated from the community that it served. This environment
created a Judiciary that was unaccountable to the people. Poor management practices
mushroomed as did opportunities for other arms of government to subvert justice. Through
ongoing public outreach activities, the Judiciary seeks to develop its own voice. It will
respond directly to the people and ultimately build faith in the institution and better deliver
its mandate. Through a platform of dialogue and feedback, the Judiciary will nurture and
sustain broad public support for its activities”. Therefore to create public awareness and
publicity the judiciary has engaged media for instance the Kenya Law Reports that is
responsible for publishing legal information materials is creating awareness about its
existence so that people get informed. For easier access to information the judiciary can be
reached by sending an inquiry to 5834 or emailing judiciary through its email address. Indeed
these efforts should be applauded but still more is required not only from the judiciary but
all other stakeholders for legal literacy to be achieved.

9.6.2 Procedural technicalities

Court procedures have for a long time been complex. They were procedural requirements
that even qualified lawyers failed to comprehend and suits were suits were dismissed not
because they did not have merit but people failed to follow procedural requirements.
Sometimes dismissal on technicalities was quite unfair. In the case of Matiba v Moi the high
court had allowed the applicant to file documents that had been signed on his behalf by his
wife in an election petition. Moi appealed and the court of appeal threw out Matiba's case
saying that documents signed by his wife were not authentic despite her being given power
of attorney. This was a procedural technicality that stood on the way to access to justice.

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The current Constitution did away to procedural technicalities. Under section 159 of the
constitution (3)(b), justice shall be administered without undue regard to procedural
technicalities. In the case of Jackson Kaliko Ndindio v Attorney General, Justice Ngugi
observed that:

Elsewhere in the new Constitution all courts are instructed to shun an obsession towards
technical justice: Article 22(3)(d) admonishes the court, while observing the rules of
natural justice, shall not be unreasonably restricted by procedural technicalities. Article
159(2)(d) is in the same vein and instructs that justice shall be administered without
undue regard to procedural technicalities.
In essence technicalities have been done away with so long as the applicant does not abuse
the due process of law. The same wish is captured in the Civil Procedure and the Appellate
Jurisdiction Act under section 1A and B on overriding Objectives.

9.6.3 Poverty
Poverty is the greatest hindrance to justice. Although the constitutional principles state that
justice shall be done to all regardless of the status as stated in article 159, majority of the
Kenyans do not have even the modest mean to access justice and are kept away. The means
of hiring a good lawyer are beyond reach of many and even where there is self-representation,
the filing fees is prohibitive. Under article 22(1), every person has a right to institute court
proceedings claiming that a right or fundamental freedom in the Bill of Rights has been
denied, violated or infringed or is threatened. Sub article 2 of the same article provides that
a person can act of behalf of another person whose rights have been violated. In sub article
3 the Chief Justice shall make rules to effect article 22 and no fee may be charged for
commencing such proceedings. The Chief Justice is yet to make these rules. Article 50 sets
out a right to a fair hearing, which includes the right of an accused person to have an advocate
if it is in the interests of ensuring justice. This varies with the repealed law by ensuring that
any accused person, regardless of the gravity of their crime may receive a court appointed
lawyer if the situation requires it. Such cases may be those involving complex issues of fact
or law; where the accused is unable to effectively conduct his or her own defence owing to
disabilities or language difficulties or simply where the public interest requires that some
form of legal aid be given to the accused because of the nature of the offence. In the case of
Davis Njoroge Macharia v. Republic, it was held by the court of appeal that “Under the new

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Constitution, state funded legal representation is a right in certain instances. Article 50(1)
provides that an accused shall have an advocate assigned to him by the State and at state
expense, if substantial injustice would otherwise result. Substantial injustice is not defined
under the Constitution, however, provisions of international conventions that Kenya is
signatory to are applicable by virtue of Article 2(6). Therefore provisions of the ICCPR and
the commentaries by the Human Rights Committee may provide instances where legal aid is
mandatory.” under the old constitution there was such provision under section77 but it clear
and very specific like in the current constitution. In the criminal matters Advocates take on
pauper briefs and again they are paid by the state.

In the Civil Procedure Act, Order 33 provides for one to sue as a pauper provided he or she
meets the criteria set by the court. But again determining who is poor and who is not is very
subjective.

9.6.4 Corruption and prejudice

There is a widely accepted principle of natural justice that there should be no hint of bias or
prejudice in the administration and application of law.

The society has over the centuries evolved several principles of natural justice, three of the
best known being: "Justice should not only be done but manifestly and undoubtedly be seen
to be done" (Per Lord Hewart, C.J in R. v. Sussex Justices, 1924), "Judges, like Caesar's
wife must be above suspicion" (Lord Bowen, J in Leeson v. General Council of Medical
Education & Registration, 1889) and Justice must be rooted in confidence and confidence
is destroyed when right-minded people go away thinking 'the Judge was biased' (Lord
Denning, MR in Metropolitan Properties Ltd. v. Lannon, 1969).

Corruption has been the greatest hindrance to access to justice. There has a perception that
justice has been for sale to the highest bidder hence the concept “why hire a lawyer when
one can pay a judge”. Corruption in the judiciary is perceived to be practiced by the judicial
officers, the paralegals and the stakeholders. Justice has been for the selected few living the
poor people robbed and feeling helpless. The Ringera Commission sent a few officers home
but unfortunately it never succeeded.

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It is encouraging that the current Constitution sets high moral and professional standards for
the judicial officers under chapter six and ten respectively. Those who were in the office
prior to the commencement of the new constitution are being vetted and some have been sent
home. Those who are being recruited are expected to have met the requirements of chapter
six and ten and while in the office are expected to maintain high integrity and reject being
compromised. Judiciary is now independent from other arms and the judicial officers are
now paid well to avoid temptation. The Chief Justice has introduced measures to redeem the
judiciary image and has told those under him to either change or perish. The public
perception of corruption in judiciary is changing. In his speech during the delivery of
Progress Report, the Chief Justice said this “ The ends of justice cannot be met when the
Judiciary not only suffers an integrity deficit but is also perceived as the playground of the
corrupt and the refuge of the inept. Corruption corrodes our humanity, undermines our
institutions and sabotages our economy. In my inaugural address as Chief Justice, I pledged
that never again should it be possible to speak about corruption and the Judiciary in the same
breath. I meant”.

9.6.5 Inadequacy in Infrastructure

The judiciary is so frail infrastructure. To access the courts is a problem to those in rural
areas as they are concentrated in urban areas. People have to walk long distances in the search
of justice. The existing court buildings are inadequate and the judicial officers are forced to
hear matters in the chambers instead of open courts. These hampers access to justice.

Currently, the judiciary is addressing the above issue by building more courts which are
modern. Areas such as Garissa and Wajir now have mobile courts. With the more courts
being built, the courts such as court of appeal, Industrial court and environment and land
court are being decentralized in order to reach people

The Chief Justice while accepting the limitation of court building observed that “In pursuing
the important objective of bringing justice closer to the people, we are establishing 14 new
courts in places where the Judiciary has never before had a footprint. Additionally, 8 mobiles
courts have been set up and 38 new vehicles released to serve court stations in historically
marginalized areas. For the first time in Kenya’s history, a judge of the High Court of Kenya

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has been posted to Garissa. More court stations will be subsequently established in Lodwar,
Isiolo and other marginal districts including Archer’s Post, Wamba, Kakuma, Lokitaung,
Lokichoggio and Loitoktok, as a way to reduce the cost of justice for litigants”.

9.6.6 Insufficiency in Personnel

The population of Kenya currently is slightly over 40 million. The number of judicial officers
to serve this population has been very small. This has been partly due to the institution being
starved off the resources and statutory regulations for example the Judicature Act which
restricted the number of court of appeal to fourteen and the high court ones to 70. The
Magistrates were also very less. These led to backlog of cases as the judicial officers were
overburdened.

The problem has been addressed by entrenching the independence of the judiciary in the
constitution and empowering it with more resources to recruit and train more judicial
officers. There has been amendment to the judicature Act to allow employment of more
judicial officers and lately there has been massive recruitment of judges and magistrate. Now
there are special courts like Environment and Land Court and Industrial courts that have been
established constitutionally to speed up cases. The Chief Justice using the powers donated to
his has set up special divisions such as constitutional division, Criminal Division and
Commercial division to speed up the hearing of the matters. Additionally, the judges have
been given the Legal Researchers to undertake the research work.

9.6.7 Problem of Language

The legal profession's language has been the most un-understood. It begins with the drafters,
lawyers down to the judicial officers. It is very common to come across the words as
importunes, mutatis mutandis, order nisi and others that only the legal mind understands.
According to Ann Asugah “our legislation is drafted in wordy fashion and uses archaic
terms”. Sections can easily be broken down to subsections for clarity of ideas being
communicated and for easy of interpretation. There is therefore need for drafters to
deliberately adopt a more plain methodology of drafting to effectively communicate
government policy to citizens. Until that happens, the citizenry will always view the law as

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a preserve of lawyers and the courts. An informed citizenry helps in the growth of economy
and the drafters need have their job well cut in this respect.

9.6.8 Limitation in Jurisdiction

According to Odiwour Kelly, Jurisdiction is the power of different courts to hear and
determine dispute. Jurisdiction can either be geographical, functional, subject matter and
pecuniary”. In the case of Owners and Masters of the Motor Vessel Lilian v Caltex Oil
Kenya ltd (1989) KLR 1, it was held that:

The question of jurisdiction is a threshold issue and must be determined by a judge at

the threshold stage, using such evidence as may be placed before him by parties. It is
reasonably plain that a question of jurisdiction ought to be raised at the earliest
opportunity and the court is then obliged to decide on the matters and where it does not
have jurisdiction it should down its tools.
Jurisdiction limits other judicial officers’ powers to hear cases. Section five of the Judicature
Act determines the jurisdiction of magistrates’ courts. Until the recent amendment through
Act number 12 of 2012, jurisdiction of the magistrates was limited to Kshs 3,000,000/- being
the highest but now the highest is Kshs 7,000,000/- for the Chief Magistrate. Limited
pecuniary jurisdiction restricted matters that could be heard in the lower court but now things
have changed and the lower court can hear matters that they could not hear before.

In the high court, the Chief Justice Evans Gicheru at one time through the Kenya Gazette
made some practice directions that matters concerning constitution and judicial review
should be filed in Nairobi. This was seen as protecting the government’s interests and seemed
to interfere with the independence of judges. It interfered with access to justice and advocates
made noise until he withdrew the same. Before the withdraw of the same the high court
Kisumu in the case of John Moses Opiyo v Attorney General Misc. application no. 175 of
2006 (UR) had held that:

It need not to be mentioned that the constitution of Kenya is the supreme law and takes
precedence over all other laws. Rule 5A of order 46 of the Civil Procedure Rules cannot
reign supreme over the Constitution. In any event, it is archaic and does not conform to
the modern development. It is irrelevant in today's Kenya and goes contrary to the
judiciary policy of accessing justice to the people expanding the administration of justice
to the furthest remotest part of the Republic”
Whereas jurisdiction is good because it gives power to court to adjudicate, it restricts the
power of court more so territorial jurisdiction.

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9.6.9 Problem of Utilisation of Information Communication Technology
According to Gladys Shollei, there is a disconnection between judicial reform mission and
ICT investment. Judiciary has been left back in form of technological developments and such
access to justice has been affected. The magistrates and the judges’ record proceedings
manually and the registries handle files manually. Files get lost or misfiled.

Currently there is massive investment in information technology. There is teleconferencing

and the records are being digitized. In the judiciary transformation framework ICT
infrastructure occupies the fourth pillar that will transform the judiciary

9.6.10 Weak and Unreformed Stake Holders

There are several players that are involved in the administration of justice. These include the
office of Director of Public Prosecution, The Attorney General, The Policy, the children
officers, the prisons and the probation officers. The police as the investigating department
sometimes do poor investigation and gives weak evidence. The prosecution department does
not have enough and qualified prosecutors. In the criminal law the standard of evidence
required is very high and therefore many accused persons are acquitted to lack of evidence
and poor investigations. Recently, Doricas Oduor who led a committee to study the files of
sexual offences committed during post-election violence observed that most of the cases
could not meet the threshold of prosecution as there was no strong evidence.

9.6.11 Lack of Independence and impunity

In the case of Independent Jamaica Council for Human Rights v Marshall Burnett (2005)
UKPC 3, the independence of judges was said by the Privy Council to be all but universally
recognized feature of rule of law. Indeed in a democratic society, independency of judiciary
is paramount.

Judiciary as an organ of the government has operated at the mercy of the government. The
judges were appointed by the by the executive and dismissed at will in the event they
operated independently. This affected the delivery of justice especially in judicial review
matters. The judges had to rule in favour of the executive. In the Nyayo era cases could be
decided at night and mostly the judiciary only implemented the executives’ wishes. In Busia

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the Magistrate who refused to follow Moody Awori’s order and release the accused but
refused was arbitrary transferred.

Things seem to be changing due to the new constitution. Lack of independence in deciding
cases has led to many judges to go home during the vetting of judicial officers and the vetting
process is ongoing and many are set to be declared unfit to be judicial officers

9.6.12 Delay in Dispute Resolution

Justice delayed is justice denied. Delay of delivering judgments and rulings is very rampant
in the judiciary. There are cases that have stayed as long as thirty years especially land
matters. As a result many families have suffered. During the vetting of justice Ibrahim and
Nambuye, the two officers were said to be very competent but delay in delivering decisions
made the vetting board sent them home. In assessing delay caused by justice Ibrahim, the
vetting board observed that “the delays were unacceptable, carried like a hump on a camel’s
back from one posting to the next. Literally, hundreds of litigants from every walk of life felt
robbed of their right to have their cases finally determined”. Indeed there are cases where
matters are adjourned and generally stood over with no apparent reasons.

To remedy the above the judicial officers are to sign contract and above all the constitution
is very clear on the need to speed up justice process. There is a massive recruitment of judicial
officers and the judicial officers are supposed to make decisions within a particular time
frame. The “Wanjiku” have been empowered to communicate with the Chief Justice and the
office of ombudsman in the event of delay in delivering judgments.

Lastly but of more important, Kenyans like litigating, matters that could be handled through
alternative dispute resolution mechanisms find themselves in court and this in itself hampers
access to justice as courts time, efforts and resources are wasted.

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